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Exhibit 1(a)
XXXXX CORPORATION
("COMPANY")
$50,000,000 7.65% Debentures due 2029
TERMS AGREEMENT
---------------
November 22, 1999
XXXXX CORPORATION
Xxxxx Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Dear Sirs:
We offer to purchase, severally and not jointly, on and
subject to the terms and conditions of the Underwriting Agreement attached
hereto as Appendix A ("Underwriting Agreement"), the respective principal
amounts of the Debentures of Xxxxx Corporation, an Ohio corporation (the
"Company") set forth in Schedule I hereto opposite our respective names on the
following terms:
DEBENTURES
----------
TITLE: 7.65% Debentures due 2029 (the "Debentures")
PRINCIPAL AMOUNT: $50,000,000
INTEREST: 7.65 percent per annum
MATURITY: November 15, 2029
OPTIONAL REDEMPTION: None
SINKING FUND: None
PURCHASE PRICE: 97.109
EXPECTED REOFFERING PRICE: 97.984
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LOCK-UP: During the period beginning from the date of this
Terms Agreement and continuing until and including the Closing Date (as defined
below), the Company will not, directly or indirectly, offer, sell, offer to
sell, contract to sell or otherwise dispose of any of its securities that are
substantially similar to the Debentures without the prior written consent of
Xxxxxxx, Xxxxx & Co.
CLOSING: 10:00 A.M. on November 26, 1999 (the "Closing Date"),
at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, by
wire transfer, payable to the order of the Company in Federal (same day) funds.
The Debentures will be made available for checking and
packaging at our offices, or at our option at the office of The Depository Trust
Company, at least 24 hours prior to the Closing Date.
Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.
Very truly yours,
XXXXXXX, XXXXX & CO.
CHASE SECURITIES INC.
By: XXXXXXX, XXXXX & CO.
By: /s/Xxxxxxx, Sachs & Co.
--------------------------------
By: CHASE SECURITIES INC.
By: /s/Chase Securities Inc.
--------------------------------
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SCHEDULE I
7.65% DEBENTURES DUE
INITIAL PURCHASER 2029 TO BE PURCHASED
--------------------
Xxxxxxx, Xxxxx & Co. $ 30,000,000
Chase Securities Inc. $ 20,000,000
-------------------
Total....................... $ 50,000,000
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To: XXXXXXX, XXXXX & CO.
CHASE SECURITIES INC.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
We accept the offer contained in your letter, dated November
22, 1999 (the "Letter"), relating to the Debentures (as defined in the Letter).
We also confirm that the representations and warranties of Xxxxx Corporation in
the Underwriting Agreement attached to the Letter ("Underwriting Agreement") are
true and correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of Xxxxx Corporation, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the U.S. Prospectus (as defined in the Underwriting Agreement),
there has been no material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders equity or results of operations of
Xxxxx Corporation and its subsidiaries, taken as a whole, except as set forth in
or contemplated by the U.S. Prospectus.
Very truly yours,
XXXXX CORPORATION
By /s/Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Executive Vice President-
Chief Financial and Planning
Officer
By /s/R. E. Xxxxxxxxx
----------------------------
Name: R. E. Xxxxxxxxx
Vice President and Treasurer
Dated: November 22, 1999
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XXXXX CORPORATION
DEBT SECURITIES - PREFERRED SHARES
COMMON SHARES - WARRANT SECURITIES
UNDERWRITING AGREEMENT
----------------------
1. Introductory. Xxxxx Corporation, an Ohio corporation
("Company"), proposes to issue and sell from time to time:
(a) certain of its debt securities registered under
one of the registration statements referred to in Section 2(a)
("Registered Debt Securities"). The Registered Debt Securities
will be issued under an indenture dated as of April 1, 1994
("Senior Indenture") for the issuance of the Company's senior
debt securities ("Senior Debt Securities"), between the
Company and The Chase Manhattan Bank, as successor by merger
to Chemical Bank, as Trustee ("Senior Trustee"), or an
indenture ("Subordinated Indenture") for the issuance of the
Company's subordinated debt securities ("Subordinated Debt
Securities"), between the Company and The Chase Manhattan
Bank, as successor by merger to Chemical Bank, as Trustee
("Subordinated Trustee"), each in one or more series, each of
which such series may vary as to interest rates, maturities,
redemption provisions, selling prices, terms of conversion, in
the case of Subordinated Debt Securities, if any ("Convertible
Subordinated Debt Securities"), and other terms, with all such
terms for any particular series of the Registered Debt
Securities being determined at the time of sale. Particular
series of the Registered Debt Securities will be sold pursuant
to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of
sale;
(b) certain of its shares of its preferred stock
registered under one of the registration statements referred
to in Section 2(a) ("Registered Preferred Shares"). The
Registered Preferred Shares may be issued in one or more
series, which series may vary as to dividend rates, redemption
provisions, selling prices and other terms, with all such
terms for any particular series of the Registered Preferred
Shares being determined at the time of sale. Particular series
of the Registered Preferred Shares will be sold pursuant to a
Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of
sale;
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(c) certain of its common shares ("Common Shares")
registered under one of the registration statements referred
to in Section 2(a) ("Registered Common Shares"). Particular
offerings of the Registered Common Shares will be sold
pursuant to a Terms Agreement referred to in Section 3, for
resale in accordance with terms of offering determined at the
time of sale; and
(d) certain of its warrant securities registered
under one of the registration statements referred to in
Section 2(a) ("Registered Warrant Securities"). The Registered
Warrant Securities will be issued under a warrant agreement,
("Warrant Agreement") between the Company and the organization
to be named therein upon the execution thereof, as Warrant
Agent, in one or more series, which series may vary as to
expiration date, conversion terms, premium price, if any, and
other terms, with all such terms for any particular series of
the Registered Warrant Securities being determined at the time
of sale. Particular series of the Registered Warrant
Securities will be sold pursuant to a Terms Agreement referred
to in Section 3, for resale in accordance with terms of
offering determined at the time of sale.
The Registered Debt Securities, Registered Preferred Shares,
Registered Common Shares and Registered Warrant Securities are collectively
referred to herein as the "Registered Securities". The Registered Securities
(including any combination of such securities) involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriter" or
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters. It is understood that the Company may from time to time agree to
sell Securities to a certain firm or firms ("Manager" or "Managers") outside the
United States and Canada, such Manager or Managers to be specified in, and said
Securities to be sold pursuant to, a Terms Agreement (such Terms Agreement being
referred to therein by such Managers as a Subscription Agreement). As used
herein, the terms Underwriter and Underwriters are deemed to include, unless the
context otherwise specifies or requires, the Manager or Managers. The
Underwriters and Managers (or Underwriter and Manager) may provide for the
coordination of their activities by entering into an Agreement between U.S.
Underwriters and Managers which may permit them, among other things, to sell
Securities to each other for purposes of resale. As used herein the term "United
States" shall mean the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction and "Canada" means Canada, its provinces, territories and
possessions and other areas subject to its jurisdiction.
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2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter and each
Manager that:
(a) A registration statement (No. 333-74355),
including a prospectus, relating to the Registered Securities
has been filed with the Securities and Exchange Commission
("Commission") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the
"Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by
Section 3 to reflect (i) if Registered Debt Securities,
Registered Preferred Shares or Registered Warrant Securities
are offered, the terms of the Securities and the terms of
offering thereof and (ii) if Registered Common Share
Securities are offered, the terms of offering of the
Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the
Securities Act of 1933 (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to
as the "U.S. Prospectus". The prospectus relating to the
Securities to be sold by the Company to the Manager or
Managers, as supplemented by a prospectus supplement as of the
time of the applicable Terms Agreement, which will be
identical to the U.S. Prospectus except as provided in such
Terms Agreement, is hereinafter referred to as the
"International Prospectus" (collectively the U.S. Prospectus
and the International Prospectus are hereinafter referred to
as the "Prospectuses").
(b) On the effective date of the registration
statement relating to the Registered Securities, such
registration statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of 1939, as
amended ("Trust Indenture Act") and the rules and regulations
of the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading. Each
preliminary prospectus, as of the date thereof, and the
Registration Statement and the U.S. Prospectus and
International Prospectus, as the case may be, on the date of
each Terms Agreement referred to in Section 3, will conform in
all material respects to the requirements of the Act and the
Rules and Regulations and, if Registered Debt Securities are
offered by the U.S. Prospectus or the International
Prospectus, the Trust Indenture Act, and none of such
documents will include any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents based
upon written information furnished to the Company by (i) the
Trustee in its Form T-1 (Statement of Eligibility of Trustee)
filed with the Registration Statement, (ii) any Underwriter
through the Representatives, if any, specifically for use in
the U.S.
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Prospectus or (iii) any Manager specifically for use in the
International Prospectus.
(c) To the best knowledge of the Company, there is no
existing or imminent labor dispute or organizational effort by
the employees of the Company or any of its Subsidiaries (as
defined in subsection (e)) or any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary's
principal suppliers, contractors or customers that is
reasonably expected to have a material adverse effect upon the
business, properties, financial condition, results of
operations or prospects of the Company and its Subsidiaries
taken as a whole.
(d) Except as disclosed in the Registration Statement
and except as is not reasonably expected to have a material
adverse effect upon the business, properties, financial
condition, results of operations or prospects of the Company
and its Subsidiaries taken as a whole, each of the Company and
its Subsidiaries is in compliance with all applicable
Environmental Laws. As used herein, "Environmental Laws" means
any United States or Canadian, federal, state, local or
municipal statute, law, rule, regulation, ordinance, judicial
or administrative order, consent decree or judgment, relating
to the protection of the environment, the protection of public
health and safety from environmental concerns or the
protection of worker health and safety.
(e) Neither the Company nor any of its subsidiaries
(as defined in Rule 1.02(x) of Regulation S-X) (each a
"Subsidiary" and, collectively, the "Subsidiaries") is in
violation of its articles or certificate of incorporation or
regulations or bylaws or in default under any agreement,
indenture or instrument, the effect of which violation or
default would be material to the Company and its Subsidiaries
taken as a whole.
(f) Except as described in (or incorporated by
reference in) the Registration Statement and each U.S.
Prospectus or International Prospectus, there has not been any
material adverse change in, or any adverse development which
materially affects, the business, properties, financial
condition, results of operations or prospects of the Company
and its Subsidiaries taken as a whole from the dates as of
which information is given in the Registration Statement and
each U.S. Prospectus and International Prospectus.
(g) Ernst & Young LLP, whose report appears in the
Company's most recent Annual Report on Form 10-K which is
incorporated by reference in the Registration Statement and
each U.S. Prospectus and International Prospectus and who have
examined certain financial statements of the Company and its
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subsidiaries, are independent public accountants as required
by the Act and the Rules and Regulations.
(h) The Company and Aeroquip-Xxxxxxx, Inc., Xxxxx
Administration Corporation, Xxxxx MDH Company, Inc., Eaton MDH
Limited Partnership, Xxxxxx Hammer, Inc. and Xxxxxx Hammer de
Puerto Rico Inc. (each a "Significant Subsidiary", which
together constitute all of the significant subsidiaries (as
defined in Rule 1.02(w) of Regulation SX) of the Company) have
each been duly incorporated, are validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in
which their respective ownership of property or the conduct of
their respective businesses requires such qualification
(except where the failure to so qualify would not have a
material adverse effect upon the Company and its Subsidiaries
taken as a whole), and have power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged. All of the issued and
outstanding stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and
nonassessable. The Company owns all of the issued and
outstanding shares of each Significant Subsidiary, directly or
through one or more Subsidiaries, except to the extent of
shares owned of record by directors for the purpose of
qualification as such, free and clear of any pledges, liens,
encumbrances, claims or equities.
(i) Except as described in (or incorporated by
reference in) each U.S. Prospectus and International
Prospectus, there is no material litigation or governmental
proceeding pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries
which is reasonably expected by the Company to result in any
material adverse change in the business, properties, financial
condition, results of operations or prospects of the Company
and its Subsidiaries taken as a whole or which is required to
be disclosed in (or incorporated by reference in) the
Registration Statement.
(j) The financial statements filed as part of, or
incorporated by reference in, the Registration Statement or
included in, or incorporated by reference in, any preliminary
prospectus, U.S. Prospectus or International Prospectus
present, or (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in
any such document, filed with the Commission after the date as
of which this representation is being made) will present, at
all times during the period specified in Section 4(b) hereof,
fairly, the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been and (in the case of
any amendment or supplement to any such document, or any
material
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incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is
being made) will be, at all times during the period specified
in Section 4(b) hereof, prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise disclosed
in such financial statements.
The unaudited pro forma financial information, if any, filed
as a part of, or incorporated by reference in, the
Registration Statement or included in, or incorporated by
reference in, any preliminary prospectus, U.S. Prospectus or
International Prospectus present, or (in the case of any
amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is
made) will present, at all times during the period specified
in Section 4(b) hereof, fairly, on the basis set forth in any
such document, the information set forth therein, has been
prepared in accordance with the Rules and Regulations and the
guidelines of the Commission with respect to pro forma
financial information, has been properly compiled on the pro
forma bases set forth therein, the assumptions used in the
preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(k) The documents incorporated by reference into the
Registration Statement, and each preliminary prospectus, U.S.
Prospectus and International Prospectus conformed on the
respective dates such documents were filed with the Commission
(or, if the International Prospectus and each related
preliminary prospectus is not filed with the Commission, first
used by the Managers) and (in the case of any amendment or
supplement to any such document, or any material incorporated
by reference in any such document, filed with the Commission
after the date as of which this representation is being made)
will conform at all times in all material respects during the
period specified in Section 4(b) hereof, with the applicable
requirements of the Act and the Rules and Regulations and the
Securities Exchange Act of 1934, as amended (the "Securities
Exchange Act") and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of
any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed
with the Commission after the date as of which this
representation is being made) will be at all times during the
period specified in Section 4(b) hereof timely filed as
required thereby.
(l) There are no contracts or other documents which
are required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations, or which
were required to be filed as exhibits to any document
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incorporated by reference in any U.S. Prospectus or
International Prospectus by the Securities Exchange Act or the
rules and regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration Statement or to
such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and
regulations of the Commission under the Securities Exchange
Act as required.
(m) The Company is not, and after giving effect to
the offering and sale of the Securities, will not be an
"investment company", as such term is defined in the United
States Investment Company act of 1940, as amended (the
"Investment Company Act").
(n) The Company has (i) initiated a review of its
operations and those of its subsidiaries and any third parties
with which the Company or any of its subsidiaries has a
material relationship to evaluate the extent to which the
business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem, (ii)
developed a plan for addressing the Year 2000 Problem and
(iii) is implementing that plan. As a result of those actions,
nothing has come to the attention of the Company which would
cause the Company to believe, and the Company does not
believe, that the Year 2000 Problem will have a material
adverse effect upon the business, properties, financial
condition, results of operations or prospects of the Company
and its subsidiaries, taken as a whole. The "Year 2000
Problem" as used herein means any significant risk that
computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will
not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1,
2000. The disclosure contained in the U.S. Prospectus and the
International Prospectus with respect to the Year 2000 Problem
is accurate, complete and fair in all material respects; and
(o) with respect to all Securities which are
Senior Debt Securities --
(i) The Senior Indenture, including any
amendments and supplements thereto, pursuant to which
the Senior Debt Securities will be issued, will
conform with the requirements of the Trust Indenture
Act on the Closing Date (as defined in Section 3
hereof).
(ii) The execution, delivery and performance
by the Company of this Agreement and any Delayed
Delivery Contracts (as defined in Section 3 hereof)
and compliance by the Company with the provisions
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contained herein, in the Senior Debt Securities and
in the Senior Indenture will not conflict with,
result in the creation or imposition of any lien,
charge or encumbrance upon any of the respective
assets of the Company or any of its Subsidiaries
pursuant to the terms of, or constitute a default
under, any material agreement, indenture or
instrument, or result in a violation of the articles
or certificate of incorporation or regulations, as
amended, of the Company or any of its Subsidiaries or
any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the
Company, any of its Subsidiaries or their respective
properties; and, except as required by the Act, the
Trust Indenture Act, the Securities Exchange Act and
applicable state securities laws or foreign laws, no
consent, authorization or order of, or filing or
registration with, any court or governmental agency
is required for the issuance and sale of the Senior
Debt Securities or the execution, delivery and
performance of this Agreement, the Delayed Delivery
Contracts, if any, and the Senior Indenture.
(iii) On the Closing Date, (A) the Senior
Indenture will have been duly authorized, executed
and delivered by the Company and will constitute the
legally binding obligation of the Company, except as
enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement
thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law), (B) the Senior Debt
Securities will have been validly authorized and,
when duly executed, authenticated and delivered in
accordance with the Senior Indenture, upon payment
thereof as provided in this Agreement, will be
validly issued and outstanding, and will constitute
legally binding obligations of the Company entitled
to the benefits of the Senior Indenture, except as
enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement
thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law) and (C) the Senior
Debt Securities and the Senior Indenture will conform
in all material respects to the descriptions thereof
contained in the U.S. Prospectus and International
Prospectus.
(p) with respect to all Securities which are
Subordinated Debt Securities --
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(i) The Subordinated Indenture, including
any amendments and supplements thereto, pursuant to
which the Subordinated Debt Securities will be
issued, will conform with the requirements of the
Trust Indenture Act on the Closing Date.
(ii) The execution, delivery and performance
by the Company of this Agreement and any Delayed
Delivery Contracts and compliance by the Company with
the provisions contained herein, in the Subordinated
Debt Securities and in the Subordinated Indenture
will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon
any of the respective assets of the Company or any of
its Subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement,
indenture or instrument, or result in a violation of
the articles or certificate of incorporation or
amended regulations of the Company or any of its
Subsidiaries or any law, order, rule or regulation of
any court or governmental agency having jurisdiction
over the Company, any of its Subsidiaries or their
respective properties; and, except as required by the
Act, the Trust Indenture Act, the Securities Exchange
Act and applicable state securities laws or foreign
laws, no consent, authorization or order of, or
filing or registration with, any court or
governmental agency is required for the issuance and
sale of the Subordinated Debt Securities or the
execution, delivery and performance of this
Agreement, the Delayed Delivery Contracts, if any,
and the Subordinated Indenture.
(iii) On the Closing Date, (A) the
Subordinated Indenture will have been validly
authorized, executed and delivered by the Company and
will constitute the legally binding obligation of the
Company, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law), (B) the Subordinated Debt
Securities will have been validly authorized and,
when duly executed, authenticated and delivered in
accordance with the Subordinated Indenture, upon
payment therefor as provided in this Agreement, will
be validly issued and outstanding, and will
constitute legally binding obligations of the Company
entitled to the benefits of the Subordinated
Indenture, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
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of whether enforcement is considered in a proceeding
in equity or at law) and (C) the Subordinated Debt
Securities and the Subordinated Indenture will
conform in all material respects to the descriptions
thereof contained in the U.S. Prospectus and
International Prospectus.
(q) with respect to all Securities which are
Convertible Subordinated Debt Securities --
(i) On the Closing Date, the Company will have
reserved and will, at all times, keep available for
issuance upon the conversion of the Convertible
Subordinated Debt Securities such number of its
authorized but unissued Common Shares deliverable
upon conversion of the Convertible Subordinated Debt
Securities as will be sufficient to permit the
conversion in full of all outstanding Convertible
Subordinated Debt Securities.
(ii) On the Closing Date, the Common Shares will
conform in all material respects to the description
thereof contained in the U.S. Prospectus and
International Prospectus.
(iii) All corporate action required to be taken
for the authorization, issuance and delivery of the
Common Shares issuable upon conversion of the
Convertible Subordinated Debt Securities has been
validly taken; when issued and delivered in
accordance with the terms of the Convertible
Subordinated Indenture, such Common Shares will be
validly issued, fully paid and nonassessable; and the
issuance of the Convertible Subordinated Debt
Securities is not, and the issuance of any such
Common Shares will not be, subject to the preemptive
rights of any stockholder of the Company.
(r) with respect to all Securities which are
Registered Warrant Securities --
(i) The Senior Indenture, including any
amendments and supplements thereto, pursuant to which
the Senior Debt Securities will be issued upon
exercise of the Registered Warrant Securities, will
conform with the requirements of the Trust Indenture
Act on the Closing Date.
(ii) The execution, delivery and performance by
the Company of this Agreement and any Delayed
Delivery Contracts and compliance by the Company with
the provisions contained herein, in the Registered
Warrant Securities, in the Senior Debt Securities
issuable upon exercise of
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the Registered Warrant Securities, in the Warrant
Agreement and in the Senior Indenture will not
conflict with, result in the creation or imposition
of any lien, charge or encumbrance upon any of the
respective assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute
a default under, any material agreement, indenture or
instrument, or result in a violation of the articles
or certificate of incorporation or amended
regulations of the Company or any of its Subsidiaries
or any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the
Company, any of its Subsidiaries or their respective
properties; and, except as required by the Act, the
Trust Indenture Act, the Securities Exchange Act and
applicable state securities laws, no consent,
authorization or order of, or filing or registration
with, any court or governmental agency is required
for the issuance and sale of the Registered Warrant
Securities and the Senior Debt Securities issuable
upon exercise of the Registered Warrant Securities or
the execution, delivery and performance of this
Agreement, the Delayed Delivery Contracts, if any,
the Warrant Agreement and the Senior Indenture.
(iii) On the Closing Date, (A) the Warrant
Agreement and the Senior Indenture will have been
validly authorized, executed and delivered by the
Company and will constitute the legally binding
obligation of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law), (B) the Registered Warrant
Securities will have been validly authorized and,
when duly executed, authenticated and delivered in
accordance with the Subordinated Indenture, upon
payment therefor as provided in this Agreement, will
be validly issued and outstanding, and will
constitute legally binding obligations of the
Company, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law), (C) the Registered Warrant
Securities, the Warrant Agreement, the Senior Debt
Securities issuable upon the exercise of the
Registered Warrant Securities and the Senior
Indenture will conform in all material respects to
the descriptions thereof contained in the U.S.
Prospectus and International Prospectus and (D) the
Senior Debt Securities issuable upon the exercise
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of the Registered Warrant Securities will have been
validly authorized and, when issued and delivered in
accordance with the terms of the Registered Warrant
Securities and the Senior Indenture, will be validly
issued and outstanding, and will constitute legally
binding obligations of the Company entitled to the
benefits of the Senior Indenture, except as
enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement
thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(s) with respect to all Securities which are
Registered Preferred Shares --
(i) The execution, delivery and performance by
the Company of this Agreement and any Delayed
Delivery Contracts and compliance by the Company with
the provisions contained herein, in the Registered
Preferred Shares and in the Certificate of
Designations will not conflict with, result in the
creation or imposition of any lien, charge or
encumbrance upon any of the respective assets of the
Company or any of its Subsidiaries pursuant to the
terms of, or constitute a default under, any material
agreement, indenture or instrument, or result in a
violation of the articles or certificate of
incorporation or amended regulations of the Company
or any of its Subsidiaries or any law, order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, any of its
Subsidiaries or their respective properties, and,
except as required by the Act, the Securities
Exchange Act and applicable state securities laws or
foreign laws, no consent, authorization or order of,
or filing or registration with, any court or
governmental agency is required for the issuance and
sale of the Registered Preferred Shares, or the
execution, delivery and performance of this Agreement
or the Delayed Delivery Contracts, if any.
(ii) The authorization, creation, issuance and
sale of the Registered Preferred Shares and
compliance by the Company with all of the provisions
of the Certificate of Designations are within the
corporate powers of the Company.
(iii) On the Closing Date, the Registered
Preferred Shares will have been validly authorized
and, when duly executed, authenticated and
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delivered, upon payment therefor as provided in this
Agreement, will be validly issued, fully paid and
nonassessable.
(iv) If the Registered Preferred Shares are
convertible into Common Shares, on the Closing Date
any Common Shares issuable upon conversion of the
Registered Preferred Shares will have been duly
authorized by the Company and, when issued and
delivered in accordance with the Registered Preferred
Shares and the Certificate of Designations, will be
validly issued, fully paid and nonassessable.
(v) If the Registered Preferred Shares are
convertible into Common Shares, on the Closing Date
the Company will have reserved and will, at all
times, keep available for issuance upon the
conversion of the Registered Preferred Shares such
number of its authorized but unissued Common Shares
deliverable upon conversion of the Registered
Preferred Shares as will be sufficient to permit the
conversion in full of all outstanding Registered
Preferred Shares.
(vi) All corporate action required to be taken
for the authorization, issuance and delivery of any
shares of Common Shares issuable upon conversion of
the Registered Preferred Shares has been validly
taken, and the issuance of the Registered Preferred
Shares is not, and the issuance of any such shares of
Common Shares will not be, subject to any preemptive
rights of any stockholder of the Company.
(t) with respect to all Securities which are
Registered Common Shares.
(i) The execution, delivery and performance by
the Company of this Agreement and compliance by the
Company with the provisions contained herein, will
not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon
any of the respective assets of the Company or any of
its Subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement,
indenture or instrument, or result in a violation of
the articles or certificate of incorporation or
amended regulations of the Company or any of its
Subsidiaries or any law, order, rule or regulation of
any court or governmental agency having jurisdiction
over the Company, any of its Subsidiaries or their
respective properties, and, except as required by the
Act, the Securities Exchange Act and applicable state
securities laws or foreign laws, no consent,
authorization or order of, or filing or registration
with, any court or governmental agency
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is required for the issuance and sale of the
Registered Common Shares, or the execution, delivery
and performance of this Agreement.
(ii) All corporate action required to be taken
for the authorization, issuance and delivery of the
Registered Common Shares has been validly taken, and
the issuance of the Registered Common Shares is not,
and will not be, subject to any preemptive rights of
any stockholder of the Company.
Any certificate signed by any officer of the Company and
delivered to the Representatives, the Managers or to counsel for the
Underwriters pursuant to this Agreement shall be deemed to be a representation
and warranty by the Company to each Underwriter (or each Manager) as to the
matters covered thereby.
3. Purchase and Offering of Securities. The obligation
of the Underwriters, if any, and the obligation of the Managers, if any, to
purchase the Securities will be evidenced by an exchange of telegraphic or other
written communications ("Terms Agreement"(1) ) at the time the Company
determines to sell the Securities. All references herein to this Agreement
include the applicable Terms Agreement. The Terms Agreement will incorporate by
reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters or
Managers, the names of any Representatives, the principal amount or number of
shares to be purchased by each Underwriter and Manager, and the purchase price
to be paid by the Underwriters and Managers and, if the Securities include
Registered Debt Securities, Registered Preferred Shares or Registered Warrant
Securities, the terms of such Securities not already specified in the Indenture
, Certificate of Designations or Warrant Agreement, respectively, including,
but not limited to,
interest or dividend rate, maturity, redemption provisions and sinking fund
requirements, whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below), expiration
date and conversion terms (if any such terms are to be applicable). If the
Company grants the Underwriters (or Managers) an option to purchase additional
Securities to cover over-allotments, the terms of such option (or options) will
be specified in the Terms Agreement. The Terms Agreement will also specify the
time and date of delivery and payment (such time and date, or such other time
not later than seven full business days thereafter as the Representatives (and
the Managers) and the Company agree as the time for payment and delivery, being
herein and in the Terms Agreement referred to as the "Closing Date"(2) ), the
place of delivery and payment and any details of the terms of offering that
should be reflected in the prospectus supplement (or prospectus supplements)
relating to the offering of the Securities.
----------------
(1) Any such Terms Agreement relating to the purchase of such Securities by
the Manager or Managers will be referred to therein as a "Subscription
Agreement".
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(2) If the Company grants the Underwriters (and
Managers) an option to purchase additional Securities to cover over-allotments,
such Terms Agreement will specify the time for the delivery of and payment for
such Securities, which such time may be the Closing Date.
The obligations of the Underwriters and Managers to purchase
the Securities will be several and not joint. It is understood that the
Underwriters and Managers propose to offer the Securities for sale as set forth
in the U.S. Prospectus and International Prospectus, respectively. The
certificates for the Securities delivered to the Underwriters and Managers on
the Closing Date will be in definitive form and, if applicable, fully registered
form and in such denominations, and will be registered in such names, as the
Underwriters and Managers may reasonably request.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
(and the Managers) to solicit offers to purchase Securities pursuant to delayed
delivery contracts substantially in the form of Annex I attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters (and to the Managers, if applicable), the fee
set forth in such Terms Agreement in respect of the principal amount or number
of shares of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters (and Managers) will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters (and Managers) and the aggregate principal amount or number
of shares of Securities to be purchased will be reduced pro rata in proportion
of the aggregate principal amount or number of shares of Securities set forth
opposite each Underwriter's (and Manager's) name in such Terms Agreement, except
to the extent that the Representatives (or Managers) determine and agree that
such reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives (and Managers) not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
4. Certain Agreements of the Company. The Company agrees
with the several Underwriters that it will furnish to Shearman & Sterling,
counsel for the Underwriters, as many signed copies of the registration
statement as they may reasonably request relating to the Registered Securities,
including all exhibits, in the form in which it became effective and of all
amendments thereto and that, in connection with each offering of Securities:
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(a) The Company will prepare the U.S. Prospectus and
the International Prospectus each in a form to which the
Underwriters shall not reasonably object. The Company will
file the U.S. Prospectus with the Commission pursuant to and
in accordance with Rule 424(b)(1) or Rule 424(b)(2) (or, if
applicable and if consented to by the Representatives,
subparagraph (5), which consent will not be unreasonably
withheld) not later than the second business day following the
execution and delivery of the Terms Agreement; if the
Securities to be purchased by the Managers are to be
registered under the Registration Statement, the Company will
file the International Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(1) or Rule 424(b)(2)
(or, if applicable and if consented to by the Managers,
subparagraph (5), which consent will not be unreasonably
withheld) not later than the second business day following the
execution and delivery of the Subscription Agreement.
(b) The Company will, during the period following the
date of the Terms Agreement as, in the opinion of counsel for
the Underwriters, any U.S. Prospectus or International
Prospectus is required by law to be delivered, advise the
Representatives (and Managers) promptly of any proposal to
amend or supplement the Registration Statement or the U.S.
Prospectus or International Prospectus, will furnish the
Representatives (and Managers) with copies of any such
amendment or supplement or other documents proposed to be
filed within a reasonable time in advance of filing, and will
afford the Representatives (and Managers) a reasonable
opportunity to comment upon any such proposed amendment or
supplement or other documents; and the Company will also
advise the Representatives (and Managers) promptly of the
filing of any such amendment or supplement.
(c) The Company will advise the Representatives (and
Managers) (i) of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or
of any part thereof and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued, (ii) when any post-effective
amendment to the Registration Statement relating to or
covering the Securities becomes effective, (iii) of any
request or proposed request by the Commission for (A) an
amendment or supplement to the Registration Statement (insofar
as the amendment or supplement relates to or covers the
Securities), the U.S. Prospectus or International Prospectus
or any document incorporated by reference in any of the
foregoing or (B) any additional information and (iv) of
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threat of any proceeding
for that purpose.
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(d) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the U.S. Prospectus or
International Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, or if in the reasonable judgment of
the Underwriters (reasonably concurred in by the Company) it
shall be necessary or desirable during such period to amend or
supplement the U.S. Prospectus or International Prospectus,
the Company promptly will prepare and file with the
Commission, subject to subsection 4(b) hereof, an amendment or
supplement which will correct such statement or omission or
otherwise amend or supplement the U.S. Prospectus and
International Prospectus. Neither the Representatives' (or
Managers') consent to, nor the Underwriters' (or Managers')
delivery of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 5.
(e) As soon as practicable after the date of each
Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of
at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement
to become effective prior to the date of such Terms Agreement
and (iii) the date of the Company's most recent Annual Report
on Form 10-K filed with the Commission prior to the date of
such Terms Agreement, which will satisfy the provisions of
Section 11(a) of the Act.
(f) The Company will furnish to the Representatives
(and Managers) copies of the Registration Statement (including
all exhibits, the form of Senior Indenture, the form of
Subordinated Indenture, the form of Warrant Agreement, the
form of Certificate of Designations and this Agreement), any
related preliminary prospectus, any related preliminary
prospectus supplement, the U.S. Prospectus and International
Prospectus and all amendments and supplements to such
documents, in each case, in such quantities as are reasonably
requested and as soon as available, and, in the case of the
U.S. Prospectus and the International Prospectus, to use its
best efforts to make available copies thereof not later than
12:00 noon, New York City time, on the business day next
succeeding the date of the applicable Terms Agreement.
(g) The Company will arrange for the qualification of
the Securities for sale under the securities laws of such
jurisdictions in the United States and Canada as the
Representatives may reasonably designate and will continue
such qualifications in effect so long as required for the
distribution.
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(h) During the period of five years after the date of
any Terms Agreement, the Company will furnish to the
Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for
such year; and the Company will furnish to the Representatives
(and Managers) (i) as soon as publicly available, a copy of
each report or definitive proxy statement of the Company filed
with the Commission under the Securities Exchange Act, or
mailed to stockholders and (ii) from time to time, such other
publicly available information concerning the Company as the
Representatives (and Managers) may reasonably request.
(i) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters for any expenses (including
reasonable fees and disbursements of counsel) incurred by them
in connection with qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives
(and Managers) may reasonably designate and the printing of
memoranda relating thereto, for any fees paid to any Trustee,
for any fees charged by investment rating agencies for the
rating of the Securities (if applicable), for the filing fees
of the National Association of Securities Dealers, Inc. and
any state relating to the Securities, for the fees and
expenses of listing the Securities on any securities exchange
or market, if the Securities are to be listed on any
securities exchange or market, and for expenses incurred in
distributing the U.S. Prospectus and International Prospectus,
any preliminary prospectuses and any preliminary prospectus
supplements to Underwriters (or Managers).
(j) If and to the extent specified in the Terms
Agreement, for a period beginning at the time of execution of
the Terms Agreement and ending such numbers of days after the
Closing Date as specified in the Terms Agreement, without the
prior consent of the Representatives (and Managers), the
Company will not offer, sell, contract to sell or otherwise
dispose of any securities that are similar in terms to the
Securities other than in those circumstances specified in the
terms Agreement.
(k) Until the termination of the offering of the
Securities, to timely file all documents, and any amendments
to previously filed documents, required to be filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act.
(l) If the Terms Agreement specifies that the
Securities are to be listed on any stock exchange or exchanges
or market, to apply prior to the Closing Date, unless
otherwise agreed to by the Representatives, for the listing of
the Securities
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on such exchange or exchanges or market, and to use its
reasonable best efforts to complete such listings.
(m) The Company will comply (and has complied) with
all of the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida statutes, and all regulations
promulgated thereunder relating to issuers doing business with
Cuba.
(n) The Company will not be or become, at any time
prior to the expiration of one year after the date of the
applicable Terms Agreement, an open-end investment company,
unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
5. Conditions of the Obligations of the Underwriters and
Managers. The obligations of the several Underwriters (and Managers) to purchase
and pay for the Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the written statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement,
the Representatives (and Managers) shall have received a
letter, dated the date of delivery thereof, of Ernst & Young
LLP (the Company's independent accountants) confirming that
they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations
thereunder and stating in effect that:
(i) in their opinion, the financial statements
and schedules examined by them and included in the
prospectus or prospectuses contained in the
Registration Statement relating to the Registered
Securities, as amended at the date of such letter,
comply in form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations.
(ii) they have, as indicated in their report or
reports attached to such letter, made a review of any
unaudited financial statements included in such
prospectus in accordance with standards established
by the American Institute of Certified Public
Accountants.
(iii) on the basis of the review referred to in
(ii) above, a reading of the latest available interim
financial statements of the Company, and
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inquiries of officials of the Company who have
responsibility for financial and accounting matters
and other specified procedures, nothing came to their
attention that caused them to believe that the
unaudited financial statements, if any, included in
such prospectus or prospectuses do not comply in form
in all material respects with the applicable
accounting requirements of the Act, the Securities
Exchange Act and the related published Rules and
Regulations or are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included in such U.S.
Prospectus and International Prospectus.
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and
other financial information contained in such
prospectus or prospectuses (in each case to the
extent that such dollar amounts, percentages and
other financial information are derived from the
general accounting records of the Company and its
Subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly
from such records by analysis or computation) with
the results obtained from inquiries, a reading of
such general accounting records and other procedures
specified in such letter and have found such dollar
amounts, percentages and other financial information
to be in agreement with such results, except as
otherwise specified in such letter.
(v) from the date of the latest balance sheet of
the Company and its Subsidiaries included or
incorporated by reference in the Prospectuses to a
specified date not more than five days from the date
of such letter, there was not any change in the
capital stock of the Company (other than by reason of
shares issued pursuant to the Company's employee or
director stock option plans, or stock ownership
plans, stock bonus plans, stock compensation plans or
dividend reinvestment plans or upon conversion of
convertible securities or in connection with
acquisitions or distributions previously disclosed to
the Representatives and Managers), any increase in
the long-term debt or short-term debt of the Company
and its consolidated Subsidiaries or any decrease in
consolidated net assets of the Company and its
consolidated Subsidiaries, in each case as compared
with amounts shown in such latest balance sheet or
any decrease in consolidated net sales or the total
or per share amounts of consolidated net income, in
each case as compared with the comparable period in
the preceding year, except in each case for changes,
increases or decreases which the Prospectuses
disclose have occurred or may occur or which are
described in such letter or letters.
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(vi) they have read the unaudited pro forma
financial information, if any, contained in the U.S.
Prospectus and the International Prospectus and
nothing came to their attention that caused them to
believe that the unaudited pro forma financial
information does not comply in all material respects
with the applicable requirements of Rule 11.02 of
Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts
in the compilation of the unaudited pro forma
financial information.
All financial statements and schedules included in material
incorporated by reference into such Prospectuses shall be deemed included in
such Prospectuses for purposes of this subsection.
On or prior to the date of the Terms Agreement, the
Representatives (and Managers) shall have received a letter from an accounting
firm acceptable to the Underwriters (and Managers), dated the date thereof, with
respect to any financial statements of an entity other than the Company which
are included in the U.S. Prospectus and the International Prospectus and not
covered by the letter required to be delivered by Ernst & Young LLP, covering
substantially the same required statements described above.
(b) The U.S. Prospectus, and, if applicable, the
International Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and
Section 4(a) of this Agreement. No stop order suspending the
effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the
Commission.
(c) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest
audited statements included in the U.S. Prospectus and the
International Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity whether
or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than
as set forth or contemplated in the U.S. Prospectus and the
International Prospectus, and (ii) since the respective dates
as of which information is given in the U.S. Prospectus and
the International Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated
in the U.S. Prospectus and the International Prospectus, the
effect of which, in any such
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case described in clause (i) or (ii), is reasonably expected
to have a material adverse effect upon the business,
properties, financial condition, results of operations or
prospects of the Company and its subsidiaries, taken as a
whole;
(d) Subsequent to the execution of the Terms
Agreement (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by
Fitch IBCA Investors Service L.P., Xxxxx'x Investors Service,
Inc. or Standard & Poor's Ratings Group, and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities or
preferred stock;
(e) Subsequent to the execution of the Terms
Agreement, there shall not have occurred (i) a suspension or
material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the
effect of any such event specified in this clause (iv) in the
reasonable judgment of the Underwriters (or Managers) makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in
the manner contemplated in the U.S. Prospectus and the
International Prospectus;
(f) The Representatives (and Managers) shall have
received an opinion, dated the Closing Date, of Xxxxxx X.
Xxxxxxxx, Executive Vice President and General Counsel of the
Company:
(i) with respect to all Securities, to the effect
stated in Annex II-A.
(ii) with respect to all Securities which are
Senior Debt Securities, to the effect stated in Annex
II-B.
(iii) with respect to all Securities which are
Subordinated Debt Securities, to the effect stated in
Annex II-C.
(iv) with respect to all Securities which are
Registered Warrant Securities, to the effect stated
in Annex II-D.
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(v) with respect to all Securities which are
Registered Preferred Shares, to the effect stated in
Annex II-E.
(vi) with respect to Securities that are
Registered Common Shares, to the effect stated in
Annex II-F.
Such counsel shall further state in that opinion that
he has participated in the preparation of the Registration
Statement and the Prospectuses, and no facts have come to his
attention that lead him to believe that (i) the Registration
Statement (except for the financial statements, supporting
schedules or other financial data included or incorporated
therein, or omitted therefrom, as to which such counsel need
express no opinion), at the time the Registration Statement
became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or (ii) the Prospectuses, on the date of this
Agreement or at the Closing Date (except for the financial
statements, supporting schedules or other financial data
included or incorporated therein, or omitted therefrom, as to
which such counsel need express no opinion), contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. Insofar as such opinion relates to
or involves matters of law of any jurisdiction other than
Ohio, the opinion may be given in reliance on an opinion of
counsel of that jurisdiction, a copy of which opinion shall be
furnished to each Representative (and Manager), in which case
the opinion shall state that he believes that each
Representative (and Manager) and he are entitled to so rely.
(g) The Representatives (and the Managers) shall have
received from Shearman & Sterling, counsel for the
Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the
Prospectuses, the indentures, Warrant Agreement or Certificate
of Designations and other related matters as they are prepared
to opine, and the Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters. In rendering such
opinion, Shearman & Sterling may rely as to the incorporation
of the Company and all other matters governed by the law of
the State of Ohio upon the opinion of Xxxxxx X. Xxxxxxxx
referred to above.
(h) The Representatives (and Managers) shall have
received a certificate, dated the Closing Date, of the
President or any Vice-President and a
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principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no
stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are
contemplated by the Commission and certifying as to the
matters in subsections (c) and (d) of this Section 5 and such
other matters as the Underwriter may reasonably request.
(i) The Representatives (and Managers) shall have
received a separate letter ("bring-down letter"), dated the
Closing Date, of Ernst & Young LLP, if applicable, and any
other accounting firm with respect to the financial
statements, if any contemplated by the last paragraph of
subsection (a) of this Section 5 which state in effect that
they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations
thereunder and stating, as of the date of the bringdown letter
(or, with respect to matters involving changes or developments
since the respective dates as of which specified financial
information is given in the U.S. Prospectus and the
International Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial
information and other matters covered by the initial letter
and confirming the conclusions and findings set forth in their
original letter contemplated in subsection (a) of this Section
5.
The Company will furnish the Representatives (and
Managers) with such conformed copies of such opinions,
certificates, letters and documents as they reasonably
request.
(j) Payment for and delivery of the Securities to be
purchased by the Underwriters will occur simultaneously with
the payment for and delivery of the Securities, if any, to be
purchased by the Managers.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Underwriter and each
Manager against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter and such Manager
may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, the U.S. Prospectus
and International Prospectus, or any amendment or supplement
thereto, or any related preliminary
29
25
prospectus or preliminary prospectus supplement, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
will reimburse each Underwriter and each Manager for any legal
or other expenses reasonably incurred by such Underwriter and
such Manager in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if
any, specifically for use in the U.S. Prospectus or by any
Manager specifically for use in the International Prospectus.
(b) Each Underwriter and each Manager, severally and
not jointly, will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the U.S.
Prospectus and International Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are
based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically
for use in the U.S. Prospectus, or by any Manager specifically
for use in the International Prospectus, and will reimburse
any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party
under this Section 6 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party
(absent material prejudice) of the commencement thereof; but
the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b)
above. In case any such action is brought against any
indemnified party and it notifies the
30
26
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying
party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are
the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this
Section 6 is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a)
or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters and Managers on the other from
the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the
Underwriters and Managers on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company
on the one hand and the Underwriters and Managers on the other
shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters and
Managers. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company or the Underwriters and Managers and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters and Managers agree
that it would not be just and equitable if
31
27
contribution pursuant to this subsection (d) were determined
by pro rata allocation (even if the Underwriters and Managers
were treated as one entity for such purpose) or by any other
method which does not take account of the equitable
contributions referred to above in this subsection (d).
The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter or Manager shall be required to
contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter or Manager
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the
Underwriters and Managers in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section
6 shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
Underwriter or any Manager within the meaning of the Act; and
the obligations of the Underwriters and Managers under this
Section 6 shall be in addition to any liability which the
respective Underwriters and Managers may otherwise have and
shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if
any, who controls the Company within the meaning of the Act.
7. Default of Underwriters or Managers. If any
Underwriter or Underwriters (or Manager or Managers) default in their
obligations to purchase Securities under the Terms Agreement and the aggregate
principal amount or number of shares, as the case may be, of the Securities that
such defaulting Underwriter or Underwriters (or Manager or Managers) agreed but
failed to purchase does not exceed 10% of the total principal amount or number
of shares, as the case may be, of the Securities, the Representatives (and the
Managers) may make arrangements satisfactory to the Company for the purchase of
such Securities by other persons, including any of the Underwriters (or
Managers), but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters (or non-defaulting Manager or Managers) shall be
obligated
32
28
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters (or such defaulting Manager or Managers) agreed but failed to
purchase. If any Underwriter or Underwriters (or Manager or Managers) so default
and the aggregate principal amount or number of shares, as the case may be, of
the Securities with respect to which such default or defaults occur exceeds 10%
of the total principal amount or number of shares, as the case may be, of the
Securities to be purchased by the Underwriters or Managers, as the case may be,
and arrangements satisfactory to the Representatives and the Managers, and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement or Terms Agreements will
terminate without liability on the part of any non-defaulting Underwriter and
any non-defaulting Manager, or the Company, except as provided in Section 8
herein. As used in this Agreement, the term "Underwriter" and "Manager" includes
any person substituted for an Underwriter or a Manager, respectively, under this
Section 7. Nothing herein will relieve a defaulting Underwriter or defaulting
Manager from liability for its default. The respective commitments of the
several Underwriters and Managers, for the purposes of this Section 7, shall be
determined without regard to any reduction in the respective Underwriters'
obligations to purchase the principal amounts or numbers of shares, as the case
may be, of the Securities set forth opposite their names in the Terms Agreement
as a result of Delayed Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
8. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters and
Managers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter or Manager, the Company
or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Securities.
If the Terms Agreement is terminated pursuant to Section 7 herein or if for any
reason the purchase of the Securities by the Underwriters or Managers under the
Terms Agreement is not consummated, the Company and the Underwriters (and
Managers) shall remain responsible for the expenses to be paid or reimbursed by
each of them pursuant to Section 4 herein, and the respective obligations of the
Company and the Underwriters and the Managers pursuant to Section 6 herein shall
remain in effect. If the purchase of the Securities by the Underwriters and the
Managers is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 7, the Company will reimburse
the Underwriters and the Managers for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
33
29
9. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters and the Managers, will be mailed,
delivered or telegraphed and confirmed to them at their addresses furnished to
the Company in writing for the purpose of communications hereunder or, if sent
to the Company, will be mailed, delivered or telegraphed and confirmed to it at
Eaton Center, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention:
Secretary.
10. Successors. This Agreement will inure to the benefit
of and be binding upon the Company and such Underwriters and Managers, if any,
as are identified in the corresponding Terms Agreements and their respective
successors and the officers and directors and controlling persons referred to in
Section 6 herein, and no other person will have any right or obligation
hereunder.
11. Applicable Law. THIS AGREEMENT AND THE TERMS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
34
1
[The following form of Delayed Delivery Contract will be attached as an annex to
the related Underwriting Agreement and will also be printed separately for
execution purposes. (Omit "Annex I" in execution copies.)]
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on____________ __, __***.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
XXXXX CORPORATION
c/o [REPRESENTATIVE]
[Address]
[Address]
Attention: _________________________
Gentlemen:
The undersigned hereby agrees to purchase from Xxxxx
Corporation, an Ohio corporation ("Company"), and the Company agrees to sell to
the undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on _________, __ ("Delivery Date"),]
[$]__________________ [shares]
--principal amount--of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated ___________, __ and a
Prospectus Supplement dated _______, __ relating thereto, receipt of copies of
which is hereby acknowledged, at [__% of the principal amount thereof plus
accrued interest, if any,] [$_______ per share plus accrued dividends, if any,]
and on the further terms and conditions set forth in this Delayed Delivery
Contract ("Contract").
*** Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
35
2
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in
the--principal--amounts set forth below:
[Principal Amount]
Delivery Date [Number of Shares]
------------- ------------------
------------- ----------------
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on--the--each--Delivery Date shall be made to the Company
or its order by wire transfer, payable to the order of the Company in Federal
(same day) funds at the office of ____________________ at ___.M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to [the][such] Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on [the][each] Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at [the][such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total [principal
amount][number of shares] of the Securities less the [principal amount][number
of shares] thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
36
3
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
--------------------------------------
(Name of Purchaser)
By
-----------------------------------
--------------------------------------
(Title of Signatory)
--------------------------------------
--------------------------------------
(Address of Purchaser)
Accepted, as of the above date.
XXXXX CORPORATION
By
--------------------------------
Title:
37
XXXXX CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
---------------
XXXXX CORPORATION
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we--We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed as an
exhibit to the Company's registration statement on Form S-3 (No. )
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
PRINCIPAL AMOUNT: $
INTEREST: [___% per annum, from ______________, payable
semiannually on _____________ and ______________, commencing ______________, to
holders of record on the preceding _______________ or _______________, as the
case may be.] [Zero coupon.]
38
2
MATURITY: ___________________, 20__.
OPTIONAL REDEMPTION:
SINKING FUND:
OTHER TERMS:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
______________. Underwriters' fee is ___% of the principal amount of the
Contract Securities.]
PURCHASE PRICE: ___% of principal amount, plus accrued
interest[, if any,] from ______________________.
EXPECTED REOFFERING PRICE: ___% of principal amount, subject
to change by the undersigned.
CLOSING: _____ A.M. on _________________, at _____________, by
wire transfer, payable to the order of the Company in Federal (same day) funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective principal amounts of the Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
[If appropriate, insert--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Securities will be made available for checking and
packaging at the office of ___________________ at least 24 hours prior to the
Closing Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
39
3
[Please signify your acceptance in writing of the foregoing
not later than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE] [Insert
name(s) of other
Representatives or
Underwriters] [On behalf
of--themselves-- itself--and
as Representative[s] of the
Several] [As] Underwriter[s]
By [REPRESENTATIVE]
By
----------------------------------
[Insert Title]
40
4
SCHEDULE A
PRINCIPAL
UNDERWRITER AMOUNT
----------- ------
[UNDERWRITER] $
Total $
=====
41
To: [REPRESENTATIVE]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to $______ million principal amount of our [Insert
title of Securities]. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement filed as an exhibit to the undersigned's
registration statement on Form S-3 (No.__________) ("Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or, to the knowledge of the undersigned, are contemplated by the Securities and
Exchange Commission and, subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the Underwriting
Agreement), there has been no material adverse change in the financial position
or results of operations of the undersigned and its Subsidiaries except as set
forth in or contemplated by the Prospectus.
Very truly yours,
Xxxxx Corporation
By
---------------------------
[Insert Title]
42
XXXXX CORPORATION
("COMPANY")
PREFERRED--COMMON--STOCK
TERMS AGREEMENT
---------------
XXXXX CORPORATION
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we--We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed as an
exhibit to the Company's registration statement on Form S-3 (No. )
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
TITLE:
NUMBER OF SHARES: _______ [("Firm Securities")]
[In addition, the Company hereby grants the Underwriters [and
the Managers] an option, exercisable from time to time by the Representatives
(as defined below), to purchase upon written notice from the Representatives
given to the Company not more than 30 days subsequent to the First Closing Date
an aggregate of not more than ___________ additional shares of Securities
("Option Securities") to cover over-allotments at the same price per share as
the Firm Securities and on the same terms, including the terms specified in
Section 5 of the Underwriting Agreement (other than the time for delivery of and
payment for the Option Securities). [Unless otherwise agreed between the
Representatives and [Lead Manager] on behalf of itself and the other Managers,
(i) Option Securities to be so purchased by the Underwriters shall be in the
same proportion as the aggregate amount of Firm Securities to be purchased by
the
43
2
Underwriters bear to the aggregate amount of Firm Securities to be purchased by
the Underwriters and Managers and (ii) Option Securities to be so purchased by
the Managers shall be in the same proportion as the aggregate amount of Firm
Securities to be purchased by the Managers bear to the aggregate amount of Firm
Securities to be purchased by the Underwriters and Managers.] The Company agrees
to sell to the Underwriters [Managers] such Option Securities and the
Underwriters [Managers] agree, severally and not jointly, to purchase such
Option Securities. Such Option Securities shall be purchased for the account of
each Underwriter [Manager] in the same proportion as the number of shares of
Firm Securities set forth opposite such Underwriter's [Manager's] name in
Schedule A hereto bears to the total number of shares of Firm Securities
(subject to adjustment by the Representatives to eliminate fractions) and may be
purchased by the Underwriters [Managers] only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Option Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Option Securities or any portion thereof may be surrendered and
terminated at any time upon notice by the Representatives to the Company.]
(1) DIVIDEND RATE:
(1) OPTIONAL REDEMPTION:
(1) SINKING FUND:
(1) CONVERSION RIGHTS:
(1) DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
______________. Underwriters' fee is $ _______ per share of the Contract
Securities.]
PURCHASE PRICE: $________ per share [If preferred stock issue, insert--
plus accrued dividends[, if any,] from ____________].
EXPECTED REOFFERING PRICE: $_______ per share, subject to change by the
undersigned.
----------
(1) To be included only if Terms Agreement relates to preferred stock.
44
3
CLOSING: _____ A.M. on _________________, at _____________,
by wire transfer, payable to the order of the Company in Federal (same day)
funds [("First Closing Date)].
[The time for the delivery of and payment for the Option
Securities, being herein referred to as the "Second Closing Date", which may be
the First Closing Date, shall be determined by the Representatives but shall be
not earlier than three nor later than seven business days after written notice
of election to purchase the Option Securities is given. The Company will deliver
the Option Securities to the Representatives [Lead Manager] for the accounts of
the several Underwriters [Managers] against payment of the purchase price
therefor by wire transfer, payable to the order of the Company in Federal (same
day) funds, at the offices of Shearman & Sterling. Payment shall be made in U.S.
dollars. The certificates for the Option Securities will be in definitive form,
in such denominations and registered in such names as the Representatives [Lead
Manager] requests upon reasonable notice prior to the Second Closing Date and
will be made available for checking and packaging at the above office of [Lead
Manager], or, at the option of [Lead Manager], at the office of The Depository
Trust Company, at a reasonable time in advance of the Second Closing Date.]
(2) UNDERWRITER[S']['S] COMPENSATION: $______________, payable
to the [Representative[s] [Lead Manager] for the proportionate accounts of the]
Underwriter[s] [Manager[s]] on the Closing Date.
OTHER TERMS:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]]:
The respective numbers of shares of the Firm Securities to be
purchased by each of the Underwriters [Managers] are set forth opposite their
names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your consent, amend
this offer to add additional Underwriters [Managers] and reduce the number of
shares to be purchased by the Underwriters [Managers] listed in Schedule A
hereto by the number of shares to be purchased by such additional Underwriters
[Managers].]
-------------
(2) Include if purchase is at public offering price and compensation payable
separately.
The Securities will be made available for checking and
packaging at the office of ___________________, or at the option of
______________________, at the office of The Depository Trust Company, at least
24 hours prior to the Closing Date.
45
4
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
[Please signify your acceptance in writing of the foregoing
not later than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE]
[Insert name(s) of other
Representatives or
Underwriters]
[On behalf of--themselves--
itself--and as Representative[s] of
the Several] [As] Underwriter[s]
[By REPRESENTATIVE]
By
----------------------------------
[Insert Title]
[LEAD MANAGER]
[Insert name(s) of other
Managers]
By
--------------------------
By
----------------------------------
[Attorney-in-Fact]
46
5
SCHEDULE A
NUMBER OF
UNDERWRITER[MANAGER] SHARES
-------------------- ------
[Underwriter]...........................
Total......................... ======
47
5
To: [REPRESENTATIVES]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
[LEAD MANAGER]
[Insert name(s) of other Managers
c/o [LEAD MANAGER]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to ______ shares(1) of our [Insert title of
Securities].
We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. ) ("Underwriting Agreement") are true and correct, no
stop order suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has been issued
and no proceedings for that purpose have been instituted or, to the knowledge of
the undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial position or results of operations of
the undersigned and its Subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus.
Very truly yours,
Xxxxx Corporation
By
-----------------------------
[Insert Title]
------------------
(1) and up to an additional _________ Option Securities pursuant to the option
described therein.
48
XXXXX CORPORATION
("COMPANY")
WARRANT SECURITIES
TERMS AGREEMENT
---------------
XXXXX CORPORATION
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we--We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement filed as an
exhibit to the Company's registration statement on Form S-3 (No. )
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
NUMBER TO BE ISSUED:
DEBT WARRANT AGENT:
ISSUABLE JOINTLY WITH DEBT SECURITIES:
DATE FROM WHICH WARRANT SECURITY IS EXERCISABLE:
DATE ON WHICH WARRANT SECURITY EXPIRES:
EXERCISE PRICE(S):
49
2
INITIAL PUBLIC OFFERING PRICE:
PURCHASE PRICE:
TITLE OF WARRANT SECURITIES:
OTHER TERMS:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
______________. Underwriters' fee is ___% of the principal amount of the
Contract Securities.]
PURCHASE PRICE: ___% of principal amount, plus accrued
interest[, if any,] from ___________________.
EXPECTED REOFFERING PRICE: ___% of principal amount, subject
to change by the undersigned.
CLOSING: _____ A.M. on _________________, at _____________, by
wire transfer, payable to the order of the Company in Federal (same day) funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective number of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
[If appropriate, insert--It is understood that we may, with
your consent, amend this offer to add additional Underwriters and reduce the
number to be purchased by the Underwriters listed in Schedule A hereto by the
number to be purchased by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Securities will be made available for checking and
packaging at the office of ___________________ at least 24 hours prior to the
Closing Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
50
3
[Please signify your acceptance in writing of the foregoing
not later than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE]
[Insert name(s) of other
Representatives or
Underwriters]
[On behalf of--themselves--
itself--and as Representative[s] of
the Several] [As] Underwriter[s]
By [REPRESENTATIVE]
By_________________________________
[Insert Title]
51
4
SCHEDULE A
UNDERWRITER NUMBER
----------- ------
[Underwriters]....................
Total
======
52
5
To: [REPRESENTATIVE]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to ______ number of our [Insert title of Securities].
We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. ) ("Underwriting Agreement") are true and correct, no
stop order suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has been issued
and no proceedings for that purpose have been instituted or, to the knowledge of
the undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial position or results of operations of
the undersigned and its Subsidiaries except as set forth in or contemplated by
the Prospectus.
Very truly yours,
Xxxxx Corporation
By
---------------------
[Insert Title]
53
ANNEX II-A
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(i)
(A) The Company and the Significant Subsidiaries have been
duly incorporated and are validly existing and in good standing under the laws
of their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations in all jurisdictions in
which their respective ownership of property or the conduct of their respective
businesses requires such qualification (except where the failure to so qualify
would not have a material adverse effect upon the business, properties,
financial condition, results of operations or prospects of the Company and its
Subsidiaries taken as a whole), and have all power and authority necessary to
own their respective properties and conduct the businesses in which they are
engaged and, except as may be disclosed in the Registration Statement and except
to the extent of shares owned of record by directors for the purpose of
qualifying as such, all outstanding shares of capital stock of the Significant
Subsidiaries are owned by the Company directly, or indirectly through wholly
owned Subsidiaries, free and clear of any lien, pledge and encumbrance or any
claim of any third party, and except that as of June 30, 1999, 338,117 shares of
Aeroquip-Xxxxxxx, Inc. capital stock had not been tendered to the Company in
connection with the acquisition by the Company of Aeroquip-Xxxxxxx, Inc.;
(B) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the purchasers thereunder, are valid
and legally binding obligations of the Company;
(C) The Registration Statement is effective under the Act, no
stop order suspending its effectiveness has been issued, and no proceeding for
that purpose is pending or, to the knowledge of such counsel, threatened by the
Commission;
(D) No order directed to any document incorporated by
reference in the Prospectuses has been issued and, to the knowledge of such
counsel, no challenge has been made to the accuracy or adequacy of any such
document;
(E) The documents incorporated by reference in the
Registration Statement and the Prospectuses (except for the financial
statements, supporting schedules and other financial data included or
incorporated therein, or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Securities Exchange
Act and the rules and regulations thereunder;
54
(F) The Registration Statement and the Prospectuses (except
that no opinion need be expressed as to the financial statements, supporting
schedules and other financial data contained or incorporated therein, or omitted
therefrom) comply as to form in all material respects with the requirements of
the Act and the Rules and Regulations;
(G) The statements made in the Prospectuses under the
following (or comparable) captions: "Description of Debt Securities,"
"Description of Common Shares," "Description of Debt Warrants," and "Description
of Preferred Shares", insofar as they purport to summarize the provisions of
documents or agreements specifically referred to therein, fairly present the
information called for with respect thereto by Form S-3 under the Act;
(H) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or any of its
Subsidiaries which is required to be disclosed in the Prospectuses which is not
disclosed and correctly summarized therein;
(I) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations, or which are required to
be filed as exhibits to any document incorporated by reference in the
Prospectuses by the Securities Exchange Act or the rules and regulations
thereunder, which have not been filed as exhibits to the Registration Statement
or to such document or incorporated therein by reference as permitted by the
Rules and Regulations or the rules and regulations of the Commission under the
Securities Exchange Act;
(J) To the best of such counsel's knowledge, neither the
Company nor any Significant Subsidiary is in violation of its articles or
certificate of incorporation or in default under any material agreement,
indenture or instrument; and
(K) The Company is not, and after giving effect to the
offering and sale of the Securities, will not be an "investment company", as
such term is defined in the Investment Company Act of 1940.
55
ANNEX II-B
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(ii)
(A) The Senior Indenture has been validly authorized by the
Company, duly executed and delivered by the Company and the Senior Trustee and
duly qualified under the Trust Indenture Act and is a valid and legally binding
instrument of the Company, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(B) The Senior Debt Securities not subject to Delayed Delivery
Contracts have been validly authorized, duly executed by authorized officers of
the Company, duly authenticated by the Senior Trustee or the authenticating
agent and delivered, and are the validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits of the Senior Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(C) The Senior Debt Securities subject to a Delayed Delivery
Contract, if any, have been validly authorized and, when duly executed,
authenticated, issued and delivered to, and paid for by, the respective
purchasers thereof under the related Delayed Delivery Contracts, such Senior
Debt Securities will be validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits of the Senior Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(D) The Senior Debt Securities and the Senior Indenture
conform in all material respects to the statements concerning them in the
Registration Statement and the Prospectuses; and
(E) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance by the
Company with the provisions contained herein and in the Senior Debt Securities
and the Senior Indenture will not, in any way that would have a
56
material adverse effect upon the Company and its Subsidiaries taken as a whole,
conflict with, or result in the creation or imposition of, any lien, charge or
encumbrance upon any of the assets of the Company or any of its Subsidiaries
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation of the
articles or certificate of incorporation of the Company or any Significant
Subsidiary or any law, order, rule or regulation of any court or governmental
agency having jurisdiction over the Company, and any of its Subsidiaries or
their property; and no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance by the Company of this Agreement and the
Delayed Delivery Contracts, if any, except such as may be required by the Act,
the Trust Indenture Act, the Securities Exchange Act, state securities laws or
foreign laws.
57
ANNEX II-C
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(iii)
(A) The Subordinated Indenture has been validly authorized by
the Company, duly executed and delivered by the Company and the Subordinated
Trustee and duly qualified under the Trust Indenture Act and is a valid and
legally binding instrument of the Company, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(B) The Subordinated Debt Securities not subject to Delayed
Delivery Contracts have been validly authorized, duly executed by authorized
officers of the Company, duly authenticated by the Subordinated Trustee or the
authenticating agent and delivered, and are the validly issued, outstanding and
legally binding obligations of the Company, entitled to the benefits of the
Subordinated Indenture, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(C) The Subordinated Debt Securities subject to a Delayed
Delivery Contract, if any, have been validly authorized and, when duly executed,
authenticated, issued and delivered to, and paid for by, the respective
purchasers thereof under the related Delayed Delivery Contracts, such
Subordinated Debt Securities subject to a Delayed Delivery Contract will be
validly issued, outstanding and legally binding obligations of the Company,
entitled to the benefits of the Subordinated Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law);
(D) The Subordinated Debt Securities, the Subordinated
Indenture and, in the case of Subordinated Debt Securities that are convertible
into Registered Common Shares ("Convertible Subordinated Debt Securities"), the
Registered Common Shares conform in all material respects to the statements
concerning them in the Registration Statement and the Prospectuses;
58
(E) In the case of Convertible Subordinated Debt Securities,
the Registered Common Shares issuable upon the conversion of the Convertible
Subordinated Debt Securities have been duly authorized and validly reserved for
issuance by the Company and, when issued and delivered in accordance with the
terms of the Convertible Subordinated Indenture, will be validly issued, fully
paid and nonassessable;
(F) In the case of Convertible Subordinated Debt Securities,
all corporate action required to be taken for the authorization, issuance and
delivery of the Registered Common Shares issuable upon conversion of the
Convertible Subordinated Debt Securities has been validly taken, and the
issuance of the Convertible Subordinated Debt Securities is not, and the
issuance of any such Registered Common Shares will not be, subject to the
preemptive rights of any stockholder of the Company; and
(G) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance by the
Company with the provisions contained herein and in the Subordinated Debt
Securities and the Subordinated Indenture will not, in any way that would have a
material adverse effect upon the Company and its Subsidiaries taken as a whole,
conflict with, or result in the creation or imposition of, any lien, charge or
encumbrance upon any of the assets of the Company or any of its Subsidiaries
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation of the
articles or certificate of incorporation of the Company or any Significant
Subsidiary or any law, order, rule or regulation of any court or governmental
agency having jurisdiction over the Company, any of its Subsidiaries or their
property; and no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution, delivery
and performance by the Company of this Agreement and the Delayed Delivery
Contracts, if any, except such as may be required by the Act, the Trust
Indenture Act, the Securities Exchange Act, state securities laws or foreign
laws.
59
ANNEX II-D
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(iv)
(A) The Warrant Agreement has been validly authorized by the
Company, and duly executed and delivered by the Company and the Warrant Agent
and is a valid and legally binding instrument of the Company, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law);
(B) The Registered Warrant Securities not subject to a Delayed
Delivery Contract have been validly authorized, duly executed by authorized
officers of the Company, duly authenticated by the Warrant Agent and delivered,
and are the validly issued, outstanding and legally binding obligations of the
Company, entitled to the benefits of the Warrant Agreement, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law);
(C) The Registered Warrant Securities subject to a Delayed
Delivery Contract, if any, have been validly authorized and, when duly executed,
authenticated, issued and delivered to, and paid for by, the respective
purchasers thereof under the related Delayed Delivery Contracts, such Registered
Warrant Securities will be validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits of the Warrant Agreement,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(D) The Senior Indenture has been validly authorized by the
Company, duly executed and delivered by the Company and the Senior Trustee and
duly qualified under the Trust Indenture Act and is a valid and legally binding
instrument of the Company, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general
60
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(E) The Senior Debt Securities issuable upon exercise of the
Registered Warrant Securities have been validly authorized and, when executed,
authenticated, issued and delivered in accordance with the terms of the
Registered Warrant Securities and the Senior Indenture, will be the validly
issued, outstanding and legally binding obligations of the Company, entitled to
the benefits of the Senior Indenture, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(F) The Registered Warrant Securities, the Warrant Agreement,
the Senior Debt Securities issuable upon the exercise of the Registered Warrant
Securities and the Senior Indenture conform in all material respects to the
statements concerning them in the Registration Statement and the Prospectuses;
and
(G) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance by the
Company with the provisions contained herein and in the Registered Warrant
Securities, in the Warrant Agreement, in the Senior Debt Securities and in the
Senior Indenture, if applicable, will not, in any way that would have a material
adverse effect upon the Company and its subsidiaries taken as a whole, conflict
with, or result in the creation or imposition of, any lien, charge or
encumbrance upon any of the assets of the Company or any of its Subsidiaries
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation of the
articles or certificate of incorporation of the Company or any Significant
Subsidiary or any law, order, rule or regulation of any court or governmental
agency having jurisdiction over the Company, any of its Subsidiaries or their
property; and no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution, delivery
and performance by the Company of this Agreement and the Delayed Delivery
Contracts, if any, except such as may be required by the Act, the Trust
Indenture Act, the Securities Exchange Act, state securities laws or foreign
laws.
61
ANNEX II-E
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(v)
(A) The Registered Preferred Shares not subject to a Delayed
Delivery Contract have been duly and validly authorized and issued and are fully
paid and nonassessable;
(B) The Registered Preferred Shares subject to a Delayed
Delivery Contract, if any, have been validly authorized and, when duly executed,
issued and delivered to, and paid for by, the respective purchasers thereof
under the related Delayed Delivery Contracts, such Registered Preferred Shares
will be duly and validly issued and fully paid and nonassessable;
(C) If the Registered Preferred Shares are convertible into
Registered Common Shares, the Registered Common Shares issuable upon conversion
of the Registered Preferred Shares have been duly authorized and validly
reserved for issuance by the Company and, when issued and delivered in
accordance with the terms of the Registered Preferred Shares and the Certificate
of Designations, will be validly issued, fully paid and nonassessable;
(D) The Registered Preferred Shares and the Registered Common
Shares conform in all material respects to the statements concerning them in the
Registration Statement and the Prospectuses;
(E) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance by the
Company with the provisions contained herein and in the Registered Preferred
Shares and the Certificate of Designations will not, in any way that would have
a material adverse effect upon the Company and its Subsidiaries taken as a
whole, conflict with, or result in the creation or imposition of, any lien,
charge or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument known to such counsel, or result in a
violation of the articles or certificate of incorporation of the Company or any
Significant Subsidiary or any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of its
Subsidiaries or their property; and no consent, authorization or order of, or
filing or registration with, any court or governmental agency is required for
the execution, delivery and performance by the Company of this Agreement and the
Delayed Delivery Contracts, if any, except such as may be required by the Act,
the Securities Exchange Act, state securities laws or foreign laws; and
(F) All corporate action required to be taken for the
authorization, issuance and delivery of any Registered Common Shares issuable
upon conversion of the Registered
62
Preferred Shares has been validly taken, and the issuance of the Registered
Preferred Shares is not, and the issuance of any such Registered Common Shares
will not be, subject to any preemptive rights of any stockholder of the Company.
63
ANNEX II-F
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(vi)
(A) The Registered Common Shares have been duly and validly
authorized and issued and are fully paid and nonassessable;
(B) The Registered Common Shares conform in all material
respects to the statements concerning them in the Registration Statement and the
Prospectuses;
(C) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of this
Agreement and compliance by the Company with the provisions contained herein
will not, in any way that would have a material adverse effect upon the Company
and its Subsidiaries taken as a whole, conflict with, or result in the creation
or imposition of, any lien, charge or encumbrance upon any of the assets of the
Company or any of its Subsidiaries pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument known to such counsel, or
result in a violation of the articles or certificate of incorporation of the
Company or any Significant Subsidiary or any law, order, rule or regulation of
any court or governmental agency having jurisdiction over the Company, any of
its Subsidiaries or their property; and no consent, authorization or order of,
or filing or registration with, any court or governmental agency is required for
the execution, delivery and performance by the Company of this Agreement, except
such as may be required by the Act, the Securities Exchange Act, state
securities laws or foreign laws; and
(D) The issuance of any such Registered Common Shares will not
be subject to any preemptive rights of any stockholder of the Company.
