EXHIBIT 1
GENERAL ELECTRIC COMPANY
("COMPANY")
COMMON STOCK
UNDERWRITING AGREEMENT
March 8, 2004
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Vice President and Treasurer
Ladies and Gentlemen:
On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we offer to purchase, on and subject to the terms
and conditions of, and utilizing terms as defined in, the Underwriting Agreement
Standard Provisions dated as of March 8, 2004 ("STANDARD PROVISIONS"), which is
attached hereto, the following securities ("COMMON STOCK") on the following
terms:
COMMON STOCK, $.06 PAR VALUE
A. Number of Shares: 119,385,000
B. Initial Public Offering Price Per Share: $31.83
C. Purchase Price Per Share by Underwriters: $31.5117
D. Dealer Concession: $0.155000
E. Reallowance Concession: $0
F. Information Furnished by or on Behalf of the Underwriters for Use in the
Prospectus:
1. The names and corresponding number of shares set forth in the table of
underwriters in the first paragraph of text under the caption
"Underwriting".
2. The fourth paragraph of text under the caption "Underwriting"
concerning the terms of the offering by the underwriters.
3. The sixth, seventh and eighth paragraphs of text under the caption
"Underwriting" concerning stabilization and overallotments by the
underwriters.
G. Name and Address of Representatives:
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
Xxxxxxx, Sachs & Co.
X.X. Xxxxxx Securities Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
H. Additional Provisions: In addition to the agreements and conditions set
forth in the Standard Provisions, the Company agrees as follows:
1. The Company hereby agrees that it will not, during the period ending 90
days after the date of the Prospectus, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
The restrictions contained in the preceding paragraph shall not apply to
(A) the Common Stock to be sold hereunder, (B) the issuance of shares of Common
Stock in connection with the acquisition of Amersham plc, (C) the grant by the
Company of stock options, restricted stock or other awards pursuant to the
Company's benefit plans in effect as of the date hereof, (D) the issuance of
shares of Common Stock by the Company pursuant to the terms of any director or
employee stock option plan, stock ownership plan, dividend reinvestment plan or
any other similar plan of the Company in effect as of the date hereof, (E) the
issuance by the Company of shares of Common Stock upon the exercise of an option
or warrant or the conversion of a security outstanding upon completion of the
offering of Common Stock, (F) issuances by the Company of shares of Common Stock
in connection with the acquisition of another corporation or entity or the
acquisition of the assets or properties of any such corporation or entity, so
long as the aggregate amount of such issuances does not exceed $1 billion, (G)
transactions by any person other than the Company relating to shares of Common
Stock or other securities acquired in open market transactions after the
completion of the offering of the Common Stock and (H) transactions by the
Company to repurchase shares of its Common Stock in the open market.
2. The obligations of the Underwriters to purchase and pay for the Common
Stock are subject to the conditions that
a) At Closing Time, the Representative shall have received executed
"lock-up" agreements, each substantially in the form attached hereto, from each
officer (with a title of senior vice-president or above) and director of the
Company relating to sales and certain other dispositions of shares of Common
Stock or certain other securities, and such lock-up agreements shall be in full
force and effect; and
b) at Closing Time, the Representative shall have received the
opinion, dated such date, of Xxxxx Xxxxxxxxxx LLP to the effect that the
statements in the Prospectus under the heading "Material United States Federal
Income and Estate Tax Considerations for Non-United States Holders" provide, in
all material respects, a fair and accurate summary of the matters referred to
therein.
3. The underwriters represent, warrant and agree as to the information
contained in the ninth paragraph of the text under the caption "Underwriting" in
the Prospectus.
4. The underwriters represent and agree as to the information contained in
the second sentence of the eleventh paragraph of text under the caption
"Underwriting" in the Prospectus.
5. The underwriters represent and agree as to the information contained in
the second sentence of the thirteenth paragraph of text under the caption
"Underwriting" in the Prospectus.
-----------------
The Representatives named above and executing this Underwriting Agreement
represent that the Underwriters have authorized the Representatives to enter
into this Underwriting Agreement and to act hereunder on their behalf.
The respective number of shares of Common Stock to be purchased by each of
the Underwriters are set forth opposite their names in Schedule I hereto.
The provisions of the Standard Provisions are incorporated herein by
reference.
The Closing will take place at 9 A.M., New York City time, on March 12,
2004, at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
Please signify your acceptance by signing the enclosed response to us in the
space provided and returning it to us.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX, SACHS & CO.
X.X. XXXXXX SECURITIES INC.
as Representatives for themselves and the
other underwriters named in Schedule I
attached hereto
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Accepted:
GENERAL ELECTRIC COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
SCHEDULE I
COMMON STOCK
UNDERWRITER NUMBER OF SHARES
----------- ----------------
Xxxxxx Xxxxxxx & Co. Incorporated ............................. 25,023,097
Citigroup Global Markets Inc................................... 25,023,096
Xxxxxxx, Sachs & Co............................................ 25,023,096
X.X. Xxxxxx Securities Inc..................................... 25,023,096
Banc of America Securities LLC................................. 2,029,545
BNP Paribas Securities Corp.................................... 2,029,545
Credit Suisse First Boston LLC ................................ 2,029,545
Deutsche Bank Securities Inc................................... 2,029,545
HSBC Securities (USA) Inc...................................... 2,029,545
Xxxxxx Brothers Inc............................................ 2,029,545
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...................................... 2,029,545
UBS Securities LLC............................................. 2,029,545
Banca IMI S.p.A................................................ 611,251
Xxxxxxxx & Partners, L.P....................................... 611,251
Loop Capital Markets, LLC...................................... 611,251
Xxxxxxxx Capital Partners, L.P................................. 611,251
The Xxxxxxxx Capital Group, L.P................................ 611,251
Total 119,385,000
-----------------
[FORM OF DIRECTOR & OFFICER LOCK-UP LETTER]
_____________, 2004
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
Xxxxxxx, Sachs & Co.
X.X. Xxxxxx Securities Inc.
AS REPRESENTATIVES OF THE UNDERWRITERS
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The undersigned understands that you, as representatives of the several
underwriters (the "Representatives"), propose to enter into or have entered into
an Underwriting Agreement (the "UNDERWRITING Agreement") with General Electric
Company, a New York corporation (the "COMPANY"), providing for the public
offering (the "PUBLIC OFFERING") by the several underwriters, including the
Representatives (the "UNDERWRITERS"), of shares (the "SHARES") of the Common
Stock, $.06 par value, of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 30 days after the date of the final
prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) the sale of any Shares to the Underwriters pursuant to the Underwriting
Agreement, (b) transactions relating to shares of Common Stock or such other
securities described above acquired in open market transactions after the
completion of the Public Offering, (c) shares of Common Stock sold pursuant to
any Rule 10b5-1 plan existing on the date of the Underwriting Agreement, (d) the
transfer of Common Stock as a gift or gifts, provided that the donee or donees
thereof agree
to be bound in writing by the restrictions set forth herein, (e) the transfer of
Common Stock to any member of the immediate family of the undersigned provided
that the transferee or transferees agree to be bound in writing by the
restrictions set forth herein, (f) the transfer of Common Stock to any trust or
foundation, provided that the trustee of the trust or foundation agrees to be
bound in writing by the restrictions set forth herein, and provided further that
any such transfer shall not involve a disposition for value, (g) the transfer of
Common Stock to an entity controlled by the undersigned provided the transferee
agrees to be bound in writing by the restrictions set forth herein, (h) the
transfer of Common Stock pursuant to the laws of testamentary or intestate
descent, provided that the transferee or transferees agree(s) to be bound in
writing by the restrictions set forth herein or (i) transfers of Common Stock
with the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of
the Underwriters. For purposes of this agreement, "immediate family" shall mean
any relationship by blood, marriage or adoption, not more remote than first
cousin. In addition, the undersigned agrees that, without the prior written
consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it
will not, during the period commencing on the date hereof and ending 30 days
after the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions.
Very truly yours,
-------------------------------------------
(Name)
-------------------------------------------
(Address)
Date:
GENERAL ELECTRIC COMPANY
COMMON STOCK AND/OR WARRANTS TO PURCHASE COMMON STOCK
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
March , 2004
Ladies and Gentlemen:
General Electric Company, a New York corporation (the "COMPANY"), may from
time to time enter into one or more underwriting agreements in the form attached
as Exhibit A hereto (each an "UNDERWRITING AGREEMENT") that provide for the sale
of certain of its securities specified in the particular Underwriting Agreement
(the "DESIGNATED SECURITIES"). The basic provisions set forth herein to the
extent applicable to securities of the type represented by the Designated
Securities will be incorporated by reference in any such Underwriting Agreement
relating to a particular issue of Designated Securities. Each Underwriting
Agreement will be entered into, with such additions and deletions as the parties
thereto may determine and shall be specified in such Underwriting Agreement. The
Underwriting Agreement may appoint a lead underwriter or underwriters
(collectively, the "REPRESENTATIVE") for the particular issue of Designated
Securities and will specify the underwriters participating in such offering (the
"UNDERWRITERS", which term shall include any Underwriter substituted pursuant to
Section 9 hereof). The obligation of the Company to issue and sell any of the
Designated Securities and the obligation of the Underwriters to purchase any of
the Designated Securities shall be evidenced by the Underwriting Agreement with
respect to the Designated Securities specified therein. The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement." The obligations of the Underwriters under this
Agreement shall be several and not joint. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as defined therein.
The terms and rights of any particular issue of Designated Securities shall
be as specified in the Underwriting Agreement relating thereto and (i) if the
Designated Securities are shares of the Company's common stock, par value $.06
per share ("COMMON STOCK"), in the Company's Certificate of Incorporation, as
amended, and By-laws, as amended, (ii) if the Designated Securities are warrants
("WARRANTS"), in or pursuant to a warrant agreement (the "WARRANT AGREEMENT")
identified in the Underwriting Agreement and (iii) if the Designated Securities
are Common Stock subject to the warrants ("WARRANT COMMON STOCK"), pursuant to
the Company's Certificate of Incorporation, as amended, and By-laws, as amended.
An Underwriting Agreement shall be in the form of an executed writing (which may
be in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted.
A registration statement in respect of the Designated Securities has been
filed with the Securities and Exchange Commission (the "COMMISSION"); the
registration statement has been declared effective by the Commission; and no
stop order suspending the effectiveness of the registration statement has been
issued and no proceeding for the purpose has been initiated or threatened by the
Commission. The Company proposes to file pursuant to Rule 424 under the
Securities Act of 1933 (the "1933 ACT") a prospectus supplement specifically
relating to the Designated Securities and has previously advised the
Underwriters of all information to be set forth therein. The term "REGISTRATION
STATEMENT" means the registration statement as amended to the date of this
Agreement, including the information, if any, deemed to be a part thereof under
the rules and regulations of the 1933 Act (the "1933 ACT REGULATIONS") and any
related Registration Statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations. The term "BASIC PROSPECTUS" means the prospectus included in the
Registration Statement. The term "PROSPECTUS" means the Basic Prospectus
together with the prospectus supplement specifically relating to the Designated
Securities, as first filed with the Commission pursuant to Rule 424 (the
"PROSPECTUS SUPPLEMENT"). The term "PRELIMINARY PROSPECTUS" means a preliminary
prospectus supplement specifically relating to the Designated Securities
together with the Basic Prospectus.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
Preliminary Prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or Preliminary Prospectus,
as the case may be, prior to the execution of the applicable Underwriting
Agreement; and all references in this Agreement to amendments or supplements to
the Registration Statement, Prospectus or Preliminary Prospectus shall be deemed
to include the filing of any document under the Securities Exchange Act of 1934,
as amended (the "1934 ACT") which is incorporated by reference in the
Registration
Statement, Prospectus or Preliminary Prospectus, as the case may be, after the
execution of the applicable Underwriting Agreement.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each Underwriter named in the applicable Underwriting Agreement,
as of the date thereof and as of the Closing Time (as defined below) as follows:
(1) each document filed by the Company pursuant to the 1934 Act which
is incorporated by reference in the Prospectus complied when so filed in
all material respects with the Exchange Act and the rules and regulations
thereunder, and each document, if any, hereafter filed by the Company and
so incorporated by reference in the Prospectus will comply when so filed
with the 1934 Act and the rules and regulations thereunder;
(2) the Registration Statement and the Prospectus comply, and the
Registration Statement and the Prospectus (and any amendments and
supplements thereto, other than supplements relating only to securities,
other than the Designated Securities) will as of the Closing Time comply,
in all material respects with the 1933 Act and the 1933 Act Regulations.
(3) each Preliminary Prospectus, if any, relating to the Designated
Securities filed pursuant to Rule 424 under the 1933 Act complied when so
filed in all material respects with the 1933 Act and the 1933 Act
Regulations; and
(4) each part of the Registration Statement at the time such part
became effective did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus as of the
date of the prospectus supplement relating to the Designated Securities did
not, and the Prospectus (as amended or supplemented, other than as to
supplements relating only to securities other than the Designated
Securities) as of the Closing Time will not, contain any 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;
except that these representations and warranties do not apply to statements or
omissions in the Registration Statement, any Preliminary Prospectus or the
Prospectus, or any amendments or supplements to the foregoing, based upon
information furnished to the Company in writing by any Underwriter expressly for
use therein.
SECTION 2. SALE AND DELIVERY; CLOSING.
(b) Delayed Delivery Contracts. Pursuant to the applicable Underwriting
Agreement, the Company will agree to sell to the several Underwriters named in
Schedule I thereto and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, will agree to purchase from the Company severally and not jointly, (i)
the number of shares of Common Stock set forth opposite their names in Schedule
I thereto, less their respective number of shares of the Contract Common Stock
(as hereinafter defined), if any, determined as provided below, and/or (ii)
Warrants to purchase the number of shares of Warrant Common Stock set forth
opposite their names in Schedule I thereto, less their respective amounts of the
Contract Warrants (as hereinafter defined), if any, determined as provided
below, all at the respective purchase prices set forth in such Underwriting
Agreement. Common Stock and, if applicable, Warrants to be purchased pursuant to
delayed delivery contracts are hereinafter referred to as "CONTRACT COMMON
STOCK" and "CONTRACT WARRANTS", respectively, and collectively as the "CONTRACT
SECURITIES".
If so indicated in the applicable Underwriting Agreement, the Company may
authorize the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth therein pursuant to delayed
delivery contracts substantially in the form of Exhibit D attached hereto but
with such changes therein as the Company may authorize or approve (hereinafter
referred to as "DELAYED DELIVERY CONTRACTS"). Delayed Delivery Contracts are to
be with institutional investors approved by the Company and described in the
Prospectus. The aggregate number of shares of Contract Common Stock and the
aggregate number of shares of Warrant Common Stock for which Contract Warrants
are exercisable shall not exceed the respective amounts set forth in Schedule I
to the applicable Underwriting Agreement. As of the Closing Time, the Company
will pay to the Representative as compensation, for the accounts of the
Underwriters, the fee specified in the applicable Underwriting Agreement in
respect of all Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
If the Designated Securities are Common Stock, the deduction for the
Contract Common Stock referred to above shall become effective upon execution
and delivery by the Company and the several institutional investors of the
Delayed Delivery Contracts and such deduction for each Underwriter shall be in
the amount which shall bear the same proportion to the total number of shares of
Contract Common Stock as the number of shares of Common Stock set forth opposite
the name of the respective Underwriter bears to the aggregate number of shares
of Common Stock set forth in Schedule I to the applicable Underwriting
Agreement, except to the extent that the Representative determines that such
deduction shall be otherwise than in such proportions, and so advises the
Company in writing.
If the Designated Securities are Warrants and Warrant Common Stock, the
deduction for the Contract Warrants referred to above shall become effective
upon execution and delivery by the Company and the several institutional
investors of the Delayed Delivery Contracts and such deduction for each
Underwriter shall be in the amount which shall bear the same proportion to the
total number of shares of Warrant Common Stock for which Contract Warrants are
exercisable as the number of shares of Warrant Common Stock for which Warrants
are exercisable set forth opposite the name of the respective Underwriter bears
to the aggregate number of shares of Warrant Common Stock for which Warrants are
exercisable set forth in Schedule I to the applicable Underwriting Agreement,
except to the extent that the Representative determines that such deduction
shall be otherwise than in such proportions, and so advises the Company in
writing.
(c) SALES TO UNDERWRITERS. The several commitments of the Underwriters to
purchase the Designated Securities pursuant to the applicable Underwriting
Agreement shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(d) PAYMENT. Designated Securities to be purchased by each Underwriter
pursuant to the Underwriting Agreement relating thereto, in such authorized
number of shares and registered in such names as the Representative may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representative for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor in the funds and in the manner specified in such
Underwriting Agreement, all at the place and time and date specified in such
Underwriting Agreement or at such other place and time and date as the
Representative and the Company may agree upon in writing, such time and date
being herein called the "CLOSING TIME" for such Designated Securities.
Concurrently with the delivery of and payment for the Designated
Securities, the Company will deliver to the Representative for the accounts of
the Underwriters a check payable or wire transfer to the order of the party
designated in the Underwriting Agreement relating to such securities in the
amount of any compensation payable by the Company to the Underwriters in respect
of any Delayed Deliver Contracts as provided in paragraph (a) of this Section 2
and in the Underwriting Agreement related to such securities.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter of the Designated Securities as follows:
(e) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company will comply in respect of the Designated Securities with the
requirements of the 1933 Act Regulations, as applicable, and will promptly
effect the filings necessary pursuant to Rule 424 and will take such steps as it
deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424 was received for filing by the Commission and, in the event that
it was not, it will promptly file the Prospectus.
(f) DELIVERY OF REGISTRATION STATEMENTS AND PROSPECTUSES. The Company will
furnish to the Representative and counsel for the Underwriters, without charge,
copies of the Registration Statement (including exhibits thereto) and each
amendment thereto which shall become effective on or prior to the Closing Time
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Prospectus and the
Prospectus relating to the Designated Securities and any amendments thereof and
supplements thereto as the Representative may reasonably request.
(g) CONTINUED COMPLIANCE WITH SECURITIES LAWS. If at any time when the
Prospectus relating to the Designated Securities is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Designated
Securities, any event shall occur as a result of which it is necessary, in the
opinion of counsel for the Company, to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Prospectus comply with such requirements, and the Company will furnish to
the Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(h) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Designated Securities for
offering and sale under the securities laws of such jurisdictions as the
Representative may reasonably request; PROVIDED, HOWEVER, that the Company shall
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction.
(i) EARNINGS STATEMENT. The Company will make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after the date of each Underwriting Agreement, an earnings statement of
the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the 1933 Act and the 1933 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of its obligations under the Underwriting Agreement,
including (i)the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii)the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of any warrant agent and its
counsel, (iii)the qualification of the Designated Securities under state
securities laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, and any amendment thereto, (iv)the
printing and delivery to the Underwriters of copies of each preliminary
prospectus and the Prospectus and any amendments or supplements thereto and
(v)the fees and expenses incurred with respect to the listing of the Designated
Securities.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Designated Securities pursuant to the
applicable Underwriting Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(j) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus; and the Representative shall have received at the
Closing Time a certificate of the Company, dated the date of Closing Time and
signed by an officer of the Company, to the foregoing effect. The officer making
such certificate may rely upon the best of his knowledge as to proceedings
pending or threatened.
(k) At Closing Time, the Representative shall have received the opinion,
dated such date, of Xxxxxx X. Xxx, Esq., or Xxxxxxx X. XxXxxxxx, Esq., corporate
counsel and chief corporate and securities counsel, respectively, or such other
person named in the Underwriting Agreement relating to the Designated
Securities, substantially to the effect set forth in Exhibit B hereto.
(l) At Closing Time, the Representative shall have received the opinion,
dated such date, of Xxxxx Xxxxxxxxxx LLP, counsel for the Company, relating to
the Designated Securities, substantially to the effect set forth in Exhibit C
hereto.
(m) At Closing Time, the Representative shall have received the opinion,
dated such date, of counsel for the Underwriters, relating to the Designated
Securities and such other matters as the Representative may reasonably request.
(n) At Closing Time, the Representative shall have received from KPMG LLP a
letter dated such date containing statements and information of the
type ordinarily included in accountants' "COMFORT LETTERS" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and Prospectus.
SECTION 6. (a)INDEMNIFICATION. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus or the Prospectus (if used within the
period set forth in paragraph (c) of Section 3 hereof and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by any Underwriter expressly for the use therein; PROVIDED, HOWEVER,
that the foregoing indemnity with respect to any Preliminary Prospectus or any
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any losses, claims, damages or liabilities otherwise covered by
this paragraph purchased Designated Securities, or to the benefit of any person
controlling such Underwriter, if a copy of the Prospectus (as then amended and
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person if required by law so to have been delivered, at or prior to the written
confirmation of the sale of Designated Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers and any person controlling the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to information furnished in writing by such Underwriter expressly for
use in the Registration Statement, the Prospectus or any Preliminary Prospectus,
or any amendments or supplements thereto.
Promptly after receipt by any person of notice of any claim or the
institution of any proceeding (including any governmental investigation) in
respect of which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "INDEMNIFIED PARTY") shall notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall be entitled to participate therein, and, to the
extent that it elects (upon notice to the indemnified party), jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. If the indemnifying
party shall not have so elected to assume such defense, then, upon request of
the indemnified
party, the indemnifying party shall retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. If the indemnifying
party shall so elect to assume such defense, the indemnifying party shall not be
liable to the indemnified party pursuant to this Section 6 for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof; provided, however, that any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i)the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii)the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Anything hereinabove to the contrary notwithstanding, any reference in this
Section 6 to counsel reasonably satisfactory to , or designated by, the
indemnified party shall mean (i) in the case of parties indemnified pursuant to
the second preceding paragraph, counsel reasonably satisfactory, or designated
by, the Representative on behalf of all parties so indemnified pursuant to such
paragraph and (ii) in the case of parties indemnified pursuant to the first
preceding paragraph, counsel reasonable satisfactory, or designated by, the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgement for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(o) CONTRIBUTION. If the indemnification provided for in paragraph (a) of
Section 6 is unavailable as a matter of law to an indemnified party in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities Section 7if the indemnifying
party is the Company, in such proportion as is appropriate to reflect the
relative benefit received by the Company on the one hand and the Underwriters on
the other from the offering of the Designated Securities, Section 8if an
Underwriter is the indemnifying party, in such proportion as is appropriate to
reflect the Underwriter's relative fault on the one hand and that of the Company
on the other hand in connection with the statements or omissions or alleged
statements or omissions which resulted in such losses, claims, damages or
liabilities, or (iii) if the allocation provided by claims (i) or clause (ii)
above, as the case may be, is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefit referred
to in clause (i) above or the relative fault referred to in clause (ii) above,
as the case may be, but also such relative fault (in cases
covered by clause (i)) or such relative benefit (in cases covered by clause
(ii)) as well as any other relevant equitable considerations. The relative
benefit received by the Company on the one hand and the Underwriters 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,
in each case as set forth in the Prospectus. The relative fault of the Company
on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omissions.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this paragraph were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations provided for, in the respective cases, in clauses (i),
(ii), and (iii) of the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Designated
Securities underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provision of this
paragraph (b) concerning contribution, no indemnifying party shall be required
to make contribution in any circumstances in which such party would not have
been required to provide indemnification by the terms of paragraph (a). Nothing
herein contained shall be deemed to constitute a waiver by an indemnified party
of such party's rights, if any, to receive contribution pursuant to Section
11(f) of the 1933 Act or other applicable law. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
section are several, in proportion to the respective amounts of Designated
Securities underwritten by each of such Underwriters, and not joint.
In the event that the indemnifying party is one or more of the
Underwriters, then the Representative shall act on behalf of the indemnifying
party with respect to receipt of notice, agreement as to retention of separate
counsel and consent to settlement, and the indemnified party may rely upon the
action of the Representative as binding upon each such indemnifying party for
purposes of this section.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Designated Securities. The provisions of Section 6 shall survive the
termination or cancellation of this Agreement.
SECTION 10. TERMINATION. The Underwriters may terminate this Agreement by
notice given by the Representative to the Company if, after the execution and
delivery of the applicable Underwriting Agreement and prior to the Closing Time,
(i)trading in securities generally on the New York Stock Exchange shall have
been suspended or materially limited; (ii)a general moratorium on commercial
banking activities in the State of New York or the United States shall have been
declared by the appropriate authorities or (iii)there shall have occurred any
material outbreak, or material escalation, of hostilities or other national or
international calamity or crisis, of such magnitude and severity in its effect
on the financial markets of the United States, in the reasonable judgment of the
Representative, as to prevent or materially impair the marketing, or enforcement
of contracts for sale, of the Designated Securities.
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Designated
Securities which it or they are obligated to purchase under the applicable
Underwriting Agreement (the "DEFAULTED SECURITIES"), then the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour
period, then:
(p) if the number of Defaulted Securities does not exceed 10% of the number
of Designated Securities to be purchased on such date pursuant to such
Underwriting Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such
Underwriting Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(q) if the number of Defaulted Securities exceeds 10% of the number of
Designated Securities to be purchased on such date pursuant to such Underwriting
Agreement, such Underwriting Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the applicable Underwriting Agreement either the Representative or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or the Prospectus or in any other documents or arrangements.
SECTION 12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or faxed and confirmed to them, at the address of the Representative
described in the applicable Underwriting Agreement; or, if sent to the Company,
will be mailed, delivered or faxed and confirmed to it, at 0000 Xxxxxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000; attention [Xxxxxxx X. XxXxxxxx, Esq.]
SECTION 13. PARTIES. This Agreement shall each inure to the benefit of and
be binding upon the Company, the Representative and any other Underwriters and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 6 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof and thereof are intended
to be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 15. EFFECT OF HEADINGS. The Article and Section headings herein are
for convenience only and shall not affect the construction hereof.
EXHIBIT A
GENERAL ELECTRIC COMPANY
("COMPANY")
COMMON STOCK AND/OR WARRANTS
TO PURCHASE COMMON STOCK
UNDERWRITING AGREEMENT
, 20
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Attention: ______________
Ladies and Gentlemen:
On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we offer to purchase, on and subject to the terms and
conditions of, and utilizing terms as defined in, the Underwriting Agreement
Standard Provisions (Common Stock and/or Warrants) dated as of November 26, 2003
("STANDARD PROVISIONS"), which is attached hereto, the following securities
("DESIGNATED SECURITIES") on the following terms:
I. COMMON STOCK, $.06 PAR VALUE
A. Number of Shares:
B. Initial Public Offering Price Per Share: $
C. Purchase Price Per Share by Underwriters: $
D. Exchanges on Which Listed
E. Overseas Paying Agents:
F. Dealer Concession:
G. Reallowance Concession:
H. Overallotment Option [include only if applicable]:
I. Delayed Delivery Contracts [include only if applicable]:
1. Delivery Date:
2. Minimum number of shares for each contract:
3. Maximum aggregate number of shares for all contracts:
4. Fee: $
J. Information Furnished by or on Behalf of the Underwriters for Use in the
Prospectus:
K. Address(es) of Representative(s):
II. COMMON STOCK WARRANTS
(include only if applicable)
A. Warrant Agreement:
B. Number of Common Stock Warrants to be issued:
C. Common Stock Warrant Agreement:
D. Form of Common Stock Warrants: Registered
E. Issuable jointly with Common Stock: [Yes] [No]
1. [Number of Common Stock Warrants issued with each share of Common
Stock:]
2. [Detachable Date:]
F. Date from which Common Stock Warrants are exercisable:
G. Date on which Common Stock Warrants expire:
H. Exercise price of Common Stock Warrants:
I. Purchase Price $
J. Number of shares of Warrant Common Stock purchasable upon exercise of one
Common Stock Warrant:
K. Aggregate Number of Shares:
L. Initial Public Offering Price Per Share: $
M. Purchase Price by Underwriters:
N. Overseas Paying Agents:
O. Dealer Concession:
P. Reallowance Concession:
Q. Method of Payment:
R. Delayed Delivery Contracts [include only if applicable]:
1. Delivery Date:
2. Minimum number of shares for each contract:
3. Maximum aggregate number of shares for all contracts:
4. Fee: $
S. Information Furnished by or on Behalf of the Underwriters for Use in the
Prospectus:
T. Address(es) of Representative(s):
Name and Address of Representative:
The Representative named above and executing this Underwriting Agreement
represents that the Underwriters have authorized the Representative to enter
into this Underwriting Agreement and to act hereunder on their behalf.
The respective number of shares of Common Stock and, if any, number of
Common Stock Warrants to be purchased by each of the Underwriters are set forth
opposite their names in Schedule I hereto.
The provisions of the Standard Provisions are incorporated herein by
reference.
The Closing will take place at A.M., New York City time, on , 20 , at the
offices of [Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000].
Please signify your acceptance by signing the enclosed response to us in
the space provided and returning it to us.
Very truly yours,
By:
---------------------------------------
Name:
Title:
as Representative for itself and the
other underwriters named in Schedule I
attached hereto
Accepted:
GENERAL ELECTRIC COMPANY
By:
-------------------------------------
Name:
Title:
SCHEDULE I
COMMON STOCK
UNDERWRITER NUMBER OF SHARES
COMMON STOCK WARRANTS
UNDERWRITER NUMBER OF COMMON STOCK
WARRANTS
EXHIBIT B
FORM OF OPINION OF COMPANY'S CORPORATE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(B)
(i) The Company has been duly incorporated, is validly
existing and is in good standing under the laws of the State
of New York.
(ii) [For Common Stock] The Common Stock has been duly
authorized by the Company. The Common Stock, when issued and
delivered by the Company pursuant to the Underwriting
Agreement, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other
similar rights of any securityholder of the Company. No holder
of the Common Stock is or will be subject to personal
liability by reason of being such a holder. The form of
certificate used to evidence the Common Stock is in due and
proper form and complies with the applicable statutory
requirements, with any applicable requirements of the charter
or by-laws of the Company and with the requirements of The New
York Stock Exchange.
(iii) [For Warrants] The Warrant Agreement, if any, has
been duly authorized, executed and delivered by the Company.
(iv) [For Warrants] The Warrants, if any, have been duly
authorized, executed and delivered by the Company.
(v) [For Warrant Common Stock] The Warrant Common Stock,
if any, has been duly authorized.
(vi) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(vii) The Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company.
(viii) Neither the execution and delivery of this
Agreement nor the issuance and sale of the Designated
Securities by the Company as provided herein will contravene
the Restated Certificate of Incorporation, as amended, or
by-laws, as amended, of the Company or result in any
violation, in any material respect, of any of the terms or
provisions of any law or regulation or of any indenture,
mortgage or other agreement or instrument known to such
counsel by which the Company or any of its subsidiaries is
bound. In addition, such opinion shall state that, based upon
the review and discussion of the contents of the Registration
Statement and the Prospectus and any amendments and
supplements thereto (including the documents of the Company
incorporated therein by reference) by him or members of his
staff who report to him with certain
officials of the Company, but without independent check or
verification except as stated in such opinion, such counsel
(1) believes that each document incorporated by reference in
the Prospectus which was filed by the Company pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") (except as to financial statements and schedules and
other financial and statistical data contained, referred to or
incorporated by reference therein or omitted therefrom, as to
which, in each case, such counsel need not express any belief)
did comply, when so filed, as to form in all material respects
with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (2) believes that the
Registration Statement and the Prospectus and any supplements
or amendments thereto as of their respective effective or
issue dates (except for (a) financial statements and schedules
and other financial and statistical data contained, referred
to or incorporated by reference therein or omitted therefrom
and (b) supplements relating only to securities other than the
Securities, as to which, in each case, such counsel need not
express any belief) complied as to form in all material
respects with the Act and the rules and regulations of the
Commission thereunder, and (3) believes that (except for (a)
financial statements and schedules and other financial and
statistical data contained, referred to or incorporated
therein or omitted therefrom and (b) supplements relating only
to securities other than the Securities, as to which, in each
case, such counsel need not express any belief) each part of
the Registration Statement at the time such part became
effective did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and that the Prospectus did not contain, as of the
date of the Prospectus Supplement relating to the Designated
Securities, or the Prospectus (as amended or supplemented,
other than as to supplements relating only to securities other
than the Designated Securities), does not contain any untrue
statement of a material fact or omit 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.
In rendering such opinion, such counsel (1) may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
and public officials and (2) may state that such counsel expresses no opinion as
to laws, rules, regulations, consents, approvals, authorizations or other orders
other than those of the State of New York and the federal law of the United
States of America, provided that no opinion need be expressed on or in respect
to the New York securities laws or "BLUE SKY" laws.
EXHIBIT C
FORM OF OPINION OF XXXXX XXXXXXXXXX LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(C)
(ix) If the Designated Securities are Common Stock and
assuming the Common Stock has been duly authorized by the Company,
the Common Stock, when issued and delivered by the Company pursuant
to the Underwriting Agreement, will be validly issued, fully paid
and non-assessable and will not be subject to preemptive or other
similar rights of any securityholder of the Company. No holder of
the Common Stock is or will be subject to personal liability by
reason of being such a holder. The form of certificate used to
evidence the Common Stock is in due and proper form and complies
with the applicable statutory requirements, with any applicable
requirements of the charter or by-laws of the Company and with the
requirements of The New York Stock Exchange;
(x) If the Designated Securities are Warrants and assuming the
Warrant Agreement has been duly authorized, executed and delivered
by the Company, the Warrant Agreement is a valid and binding
agreement of the Company, enforceable in accordance with its terms
(subject to applicable equitable principles and except as may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally);
(xi) If the Designated Securities are Warrants and assuming
the Warrants have been duly authorized and, when countersigned in
accordance with the provisions of the Warrant Agreement and
delivered to and paid for by the Underwriters (or, in the case of
Contract Warrants, by purchasers pursuant to Delayed Delivery
Contracts), the Warrants will be valid and binding obligations of
the Company, enforceable in accordance with their terms (subject to
applicable equitable principles and except as may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors, rights generally);
(xii) If the Designated Securities are Warrant Common Stock
and assuming the Warrant Common Stock has been duly authorized by
the Company, the Warrant Common Stock, when delivered upon exercise
of the Warrants as provided in the Warrant Agreement, will be
validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder
of the Company. No holder of the Warrant Common Stock will be
subject to personal liability by reason of being such a holder. The
form of certificate used to evidence the Warrant Common Stock is in
due and proper form and complies with the applicable statutory
requirements, with any applicable requirements of the
charter or by-laws of the Company and with the requirements of The
New York Stock Exchange;
(xiii) If Delayed Delivery Contracts are entered into,
assuming the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company, the Delayed Delivery
Contracts are valid and binding agreements of the Company,
enforceable in accordance with their terms (subject to applicable
equitable principles and except as may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally); and
(xiv) The statements in the Prospectus under the heading
"DESCRIPTION OF COMMON STOCK" and under any similar heading in the
prospectus supplement relating to the Designated Securities,
insofar as such statements purport to summarize certain provisions
of the Designated Securities, are accurate in all material
respects.
Incorporated Documents shall mean the Company's annual, quarterly and
current reports that are incorporated by reference in the Prospectus relating to
the Designated Securities.
In rendering such opinion, such counsel (1) may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
and public officials and (2) may state that such counsel expresses no opinion as
to laws, rules, regulations, consents, approvals, authorizations or other orders
other than those of the State of New York and the federal law of the United
States of America, provided that no opinion need be expressed on or in respect
to the New York securities laws or "BLUE SKY" laws.
EXHIBIT D
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from General Electric Corporation
( the "COMPANY"), and the Company agrees to sell to the undersigned, on
_____________, 200_, (the "DELIVERY DATE"), _____________ of the Company's
[Common Stock/Warrants] (the "SECURITIES") offered by the Company's Prospectus
dated __________, 200_, and related Prospectus Supplement dated ____________,
200_, receipt of a copy of which is hereby acknowledged, at a purchase price of
____ per [share/Warrant], and on the further terms and conditions set forth in
this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 AM, New York City time, on the Delivery Date to or upon the
order of the Company in [New York Clearing House (next day)/immediately
available] funds, at your office or at such other place as shall be agreed
between the Company and the undersigned, upon delivery to the undersigned of the
Securities in definitive fully registered form and in such authorized number of
shares and registered in such names as the undersigned may request by written on
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
number of shares equal to the aggregate number of shares of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the Delivery
Date,
shall have sold to certain underwriters (the "UNDERWRITERS") such number of
Securities as is to be sold to them pursuant to the Underwriting Agreement
referred to in the Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York without reference to choice of law principles.
Company Name
----------------------------------------------
(Name of Purchaser)
By:
-------------------------------------------
(Signature and title of Officer)
----------------------------------------------
(Address)
Accepted:
GENERAL ELECTRIC COMPANY
By:
--------------------------------------------
Name:
Title:
