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Exhibit B-2
[NAME OF ISSUER]
DEBT SECURITIES
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
[NAME OF ISSUER]
STANDARD PURCHASE PROVISIONS -
DEBT SECURITIES
From time to time, [Name of Issuer], a corporation organized and
existing under the laws of the State of Delaware (the "Company"), may enter into
purchase agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth herein
may be incorporated by reference in any such purchase agreement (the "Purchase
Agreement"). The Purchase Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as "this Agreement." The
term "Securities" shall mean the Debt Securities of the Company to be sold by
the Company pursuant to the applicable Purchase Agreement. Unless otherwise
defined herein, terms defined in the Purchase Agreement are used herein as
therein defined.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission thereunder (collectively called the "Act"),
with the Securities and Exchange Commission (the "Commission"), a registration
statement on Form S-3 (including a prospectus), relating to the Securities,
which pursuant to Item 12 of Form S-3 incorporates by reference documents which
the Company has filed in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively called the "Exchange Act"). Such registration statement has been
declared effective by the Commission. Promptly upon the execution of this
Agreement, the Company will prepare a prospectus supplement relating to the
Securities (the "Prospectus Supplement"). The Company has furnished to you, for
use by the Underwriters (as defined herein) and dealers, copies of one or more
preliminary prospectuses and the documents so incorporated therein (each
thereof, including the doc- uments so incorporated therein, is herein called the
"Preliminary Prospectus"). The terms Registration Statement and Prospectus shall
have the meanings ascribed to them in the Purchase Agreement.
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1. Introductory. The Company proposes to issue and sell from time to time
Securities registered under the Registration Statement. The Securities will
be issued pursuant to an Indenture, dated , to as Trustee (the "Trustee"),
as supplemented and amended, including a supplemental indenture pertaining
to the particular series of Securities involved in the offering (the
"Indenture"), and will have varying designations, interest rates and times
of payment of any interest, maturities, redemption provisions and other
terms, with all such terms for any particular series of the Securities
being determined at the time of the sale and set forth in the Purchase
Agreement and the Prospectus Supplement relating to such series of
Securities. The Securities involved in any such offering are hereinafter
referred to as the "Purchased Securities," and the firm or firms, as the
case may be, which agree to purchase the same are hereinafter referred to
as the "Underwriters" of the Purchased Securities. The terms "you" and
"your" refer to those Underwriters who sign the Purchase Agreement either
on behalf of themselves only or on behalf of themselves and as
representatives of the several Underwriters named in Schedule A thereto, as
the case may be. Purchased Securities to be purchased by Underwriters are
herein referred to as "Underwriters' Securities," and any Purchased
Securities to be purchased pursuant to Delayed Delivery Contracts (as
defined below) as hereinafter provided are herein referred to as "Contract
Securities."
2. Delivery and Payment. The Company will deliver the Underwriters' Securities
to you for the accounts of the Underwriters at the place specified in the
Purchase Agreement, against payment of the purchase price by wire transfer
of immediately available funds (as agreed to by the parties and specified
in the Purchase Agreement), at the time set forth in this Agreement [or at
such other time not later than seven full business days thereafter] as you
and the Company determine, such time being herein referred to as the "time
of purchase." Unless otherwise provided for in the Purchase Agreement, the
Underwriters' Securities so to be delivered will be in definitive fully
registered form registered in such authorized denominations and in such
names as you request in writing not later than 10:00 A.M.,1 on the third
business day prior to the time of purchase, or, if no such request is
received, in the names of the respective Underwriters in the amounts agreed
to be purchased by them pursuant to this Agreement. For the purpose of
expediting the checking of the Underwriters' Securities, the Company agrees
to make the Underwriters' Securities available to you (at the place
specified in the Purchase Agreement) in definitive form not later than
10:00 A.M. on the first businessday preceding the time of purchase.2
If any Purchase Agreement provides for sales of Purchased Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to
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(1) Times mentioned herein are New York City Time
(2)* As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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purchase Contract Securities pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto (the "Delayed Delivery
Contracts") with such changes therein as the Company may 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. At the time of purchase the Company
will pay you as compensation, for the accounts of the Underwriters, the
compensation set forth in such Purchase Agreement in respect of the principal
amount of Contract Securities. The Underwriters 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 shall be deducted from the Purchased Securities to be purchased by
the several Underwriters and the aggregate principal amount of Purchased
Securities to be purchased by each Underwriter shall be reduced pro rata in
proportion to the principal amount of Purchased Securities set forth opposite
each Underwriter's name in such Purchase Agreement, except to the extent that
you determine that such reduction shall be otherwise allocated and so advise the
Company.
3. Certain Covenants of the Company. The Company agrees:
a) As soon as possible after the execution and delivery of this
Agreement to file, or mail for filing, the Prospectus with the
Commission pursuant to its Rule 424 under the Act and, if and when
required at any time after such execution and delivery, to file
amendments to the applications the Company has previously filed
with any state regulatory agencies having jurisdiction to govern
the Company's issuance of its securities setting forth, among other
things, the necessary information with respect to the price and
terms of the Purchased Securities and the terms of offering of the
Purchased Securities;
b) To file no amendment or supplement to the Registration Statement or
Prospectus (other than a required filing under the Exchange Act)
subsequent to the execution of this Agreement to which you object
in writing;
c) To furnish such proper information as may be required and otherwise
to cooperate in qualifying the Purchased Securities for sale under
the laws of such jurisdictions as you may designate and in
determining their eligibility for investment under the laws of such
jurisdictions; provided that the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
d) To the extent not previously furnished to you, to furnish to you
two signed copies of the Registration Statement, as initially filed
with the Commission, of all amendments thereto, and of all
documents incorporated by reference herein (including all exhibits
filed therewith, other than exhibits which have previously been
furnished to you), two signed copies of each consent and
certificate of independent accountants and of each other person who
by his profession gives
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authority to statements made by him and who is named in the
Registration Statement as having prepared, certified or reviewed
any part thereof, and to furnish to you sufficient unsigned copies
of the foregoing (other than exhibits, including consents filed as
exhibits, to the Registration Statement) for distribution of a copy
to you and to each of the other Underwriters;
e) To deliver to the Underwriters without charge in New York City as
soon as practicable after the execution and delivery of this
Agreement and thereafter from time to time to furnish to the
Underwriters, without charge, as many copies of the Prospectus in
final form and any documents incorporated by reference therein at
or after the date thereof (or as amended or supplemented, if the
Company shall have made any amendment or supplement after the
effective date of the Registration Statement) as you or the
respective Under-writers may reasonably request for the purposes
contemplated by the Act;
f) To advise you promptly (confirming such advice in writing) of any
official request made by the Commission for amendments to the
Registration Statement or Prospectus or for additional information
with respect thereto, or of official notice of institution of
proceedings for, or the entry of, a stop order suspending the
effectiveness of the Registration Statement and, if such order
should be entered by the Commission, to make every reasonable
effort to obtain the lifting or removal thereof as soon as
possible, or of the suspension of qualification of the Purchased
Securities for offering or sale in any jurisdiction or of the
initiation or threatening of any proceeding for any such purpose;
g) To apply the net proceeds from the sale of the Purchased Securities
in the manner set forth in the Prospectus;
h) To furnish to you during a period of five years from the time of
purchase (i) as soon as practicable after the end of each fiscal
year, a copy of its annual report to shareholders for such year;
(ii) from time to time, copies of any reports or other
communications which it shall file with the Commission or any
governmental agency substituted therefor under the Exchange Act or
sent to its public stockholders, or holders of the Purchased
Securities, and (iii) such other information as you may from time
to time reasonably request regarding the financial condition and
operations of the Company;
i) To furnish to any other Underwriter copies of such of the financial
statements, reports or other information referred to in the
foregoing subparagraphs (h)(i) and (ii) as such Underwriter may,
from time to time during the period you are entitled to receive
them, request;
j) To advise the Underwriters of the happening of any event known to
the Company within the time during which a prospectus relating to
the Purchased Securities is required to be delivered under the Act
which, in the judgment of the Company,
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would require the making of any change in the Prospectus or any
amended or supplemented Prospectus or in the information
incorporated by reference therein so that as thereafter delivered
to purchasers such Prospectus will not include an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, and on request to prepare and furnish to the
underwriters and to dealers and other persons designated by you
such amendments or supplements (including appropriate filings under
the Exchange Act) to the Prospectus as may be necessary to reflect
any such change, provided that the Company shall be so obligated
only so long as the Company is notified of unsold allotments
(failure by the Underwriters to so notify the Company cancels the
Company's obligation under this Section 3(j));
k) As soon as practicable, to make generally available to its security
holders an earnings statement (as contemplated by Rule 158 under
the Act) covering a period of twelve months after the effective
date of the Registration Statement;
l) To pay the fees and expenses of counsel for the Underwriters, and
to reimburse the Underwriters for their reasonable out-of-pocket
expenses incurred in contemplation of the performance of this
Agreement, in the event that the Underwriters' Securities are not
delivered to and taken up and paid for by the Underwriters
hereunder for any reason whatsoever except the failure or refusal
of any Underwriter to take up and pay for Underwriters' Securities
for some reason not permitted by the terms of this Agreement, the
Underwriters agreeing to pay the fees and expenses of counsel for
the Underwriters in any other event;
m) To pay all expenses, fees and taxes (other than transfer taxes and
fees and disbursements of counsel for the Underwriters except as
set forth under 3(l) above or (iv) below) in connection with (i)
the preparation and filing of the Registration Statement, each
Preliminary Prospectus and the Prospectus, any documents
incorporated by reference therein at or after the date thereof and
any amendments or supplements thereto, and the printing or
reproduction and furnishing of copies of each thereof to the
Underwriters and to dealers, (ii) the issue, sale and delivery of
the Purchased Securities, (iii) the printing or reproduction of
this Agreement and the opinions and letters referred to in Section
4(a) hereof, (iv) the qualification of the Purchased Securities for
sale and determination of their eligibility for investment under
state laws as aforesaid, including the legal fees and all filing
fees and disbursements of counsel for the Underwriters and all
other filing fees, and the printing or reproduction and furnishing
of copies of the "Blue Sky Survey" and the "Legal Investment
Survey" to the Underwriters and to dealers, (v) the rating of the
Purchased Securities by national rating agencies and (vi) the
performance of the Company's other obligations hereunder;
n) To furnish to you as early as practicable prior to the time of
purchase, but no later than two business days prior thereto, a copy
of the latest available unaudited
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interim consolidated financial statements, if any, of the Company
which have been read by the Company's independent public
accountants as stated in their letters to be furnished pursuant to
Section 4(a) of this Agreement; and
o) If a public offering of the Purchased Securities is to be made, not
to offer or sell any of its other debt securities which are
substantially similar to the Purchased Securities prior to ten days
after the time of purchase without your consent.
4. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the following conditions:
a) That, at the time of purchase, you shall receive the signed
opinions of counsel for the Company and counsel for the
Underwriters, substantially in the forms heretofore furnished to
you, addressed to the Underwriters (with reproduced or conformed
copies thereof for each of the other Underwriters); and that, at
the time of purchase, you shall receive the signed letters of the
independent public accountants of the Company, substantially in the
form heretofore furnished to you and in substance satisfactory to
you addressed to the Underwriters (with reproduced or conformed
copies thereof for each of the other Underwriters);
b) That, at or before 5:30 P.M. on the date hereof, or at such later
time and day as you may have from time to time consented to in
writing or by telephone, confirmed in writing, such orders of state
authorities which are necessary to permit the issue, sale and
delivery of the Purchased Securities, if any, shall have been
issued; at the time of purchase such orders shall be in full force
and effect; and prior to such time of purchase no stop order with
respect to the effectiveness of the Registration Statement shall
have been issued under the Act by the Commission and at such time
of purchase no proceedings therefor shall be pending or threatened;
c) That, at the time the Registration Statement became effective, the
Registration Statement 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 at the time of purchase the Prospectus shall
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, in the light of the circumstances under
which they were made, not misleading, other than any statement
contained in, or any matter omitted from, the Registration
Statement or the Prospectus in reliance upon, and in conformity
with, information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with
reference to such Underwriter in the Registration Statement or
Prospectus;
d) That, subsequent to the respective dates as of which information is
given in the Registration Statement and in the Prospectus, at the
time the Prospectus is first
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filed, or mailed for filing, pursuant to Rule 424 under the Act,
and prior to the time of purchase, in your opinion no material
adverse change, or any development involving a prospective material
adverse change, in the condition of the Company, financial or
otherwise, shall have taken place (other than as referred to in or
contemplated by the Registration Statement and Prospectus as of
such time);
e) That the Company shall have performed all of its obligations under
this Agreement which are to be performed by the terms hereof at or
before the time of purchase;
f) That, since the date of this Agreement, there shall not have
occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Act (other than as referred to in or
contemplated by the Registration Statement and the Prospectus as of
such time);
g) That the Company shall, at the time of purchase, deliver to you
(with reproduced or conformed copies thereof for each of the other
Underwriters) a signed certificate of two of its executive officers
stating that, subsequent to the respective dates as of which
information is given in the Registration Statement and in the
Prospectus, at the time the Prospectus is first filed, or mailed
for filing, pursuant to Rule 424 under the Act, and prior to the
time of purchase, no material adverse change, or any development
involving a prospective material adverse change, in the condition
of the Company, financial or otherwise, shall have taken place
(other than as referred to in or contemplated by the Registration
Statement and Prospectus as of such time) and also covering the
matters set forth in (c) and (e) of this Section 4; and
h) That the Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
5. Termination of Agreement. The obligations of the several Underwriters
hereunder shall be subject to termination in your absolute discretion,
if, at any time prior to the time of purchase, trading in securities on
the New York Stock Exchange shall have been suspended (other than a
temporary suspension to provide for an orderly market) or minimum prices
shall have been established on the New York Stock Exchange, or if a
banking moratorium shall have been declared either by the United States
or New York State authorities, or if after the execution of this
Agreement the United States shall have declared war in accordance with
its constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on the financial
markets
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of the United States as, in your judgment, to make it impracticable to
market the Purchased Securities.
If you elect to terminate this Agreement as provided in this Section 5,
the Company and each other Underwriter shall be notified promptly in writing or
by telephone, confirmed in writing.
If the sale to the Underwriters of the Underwriters' Securities, as
herein contemplated, is not carried out by the Underwriters for any reason
permitted hereunder or if such sale is not carried out because the Company shall
be unable to comply with any of the terms thereof, the Company shall not be
under any obligation or liability under this Agreement (except to the extent
provided in Sections 3(l), 3(m), 7(b) and 9 hereof), and the Underwriters shall
be under no obligation or liability to the Company (except to the extent
provided in Sections 8(b) and 9 hereof) or to one another under this Agreement.
6. Increase in Underwriters' Commitments: If any Underwriter shall default
in its obligation to take up and pay for the Purchased Securities to be
purchased by it hereunder and if the principal amount of the Purchased
Securities which all Underwriters so defaulting shall have so failed to
take up and pay for does not exceed 10% of the total principal amount of
the Purchased Securities, the non-defaulting Underwriters shall take up
and pay for (in addition to the principal amount of the Purchased
Securities they are obligated to purchase pursuant to this Agreement)
the principal amount of the Purchased Securities agreed to be purchased
by all such defaulting Underwriters, as herein provided. Such Purchased
Securities shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the
event no such designation is made, such Purchased Securities shall be
taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the principal amount of the Purchased Securities set
opposite the names of all such non-defaulting Underwriters in Schedule A
to the Purchase Agreement.
Without relieving any defaulting Underwriter of its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Purchased Securities hereunder unless all of the Underwriters'
Securities are purchased by the Underwriters (or by substituted Underwriters
selected by you with the approval of the Company or selected by the Company with
your approval).
If a new underwriter or underwriters are substituted by the Underwriters
or by the Company for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Company or you will have the right to postpone
the time of purchase for a period of not exceeding five business days in order
that necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
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The term Underwriter as used in this Agreement will refer to and include
any underwriter substituted under this Section 6 with like effect as if such
substituted underwriter had originally been named in Schedule A to the Purchase
Agreement.
7. Warranties and Representations of and Indemnity by the Company.
a) The Company warrants and represents that, when the Registration
Statement became effective, the Registration Statement complied in
all material respects, and, when the Prospectus is first filed, or
mailed for filing, pursuant to Rule 424 under the Act, the
Prospectus will comply in all material respects with the provisions
of the Act, and that neither will contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company makes no warranty
or representation with respect to any statement contained in, or
any matter omitted from, the Registration Statement or the
Prospectus in reliance upon and in conformity with information
furnished in writing by or on behalf of any Underwriter through you
to the Company expressly for use with reference to the Underwriter
in the Registration Statement or Prospectus. The Company also
warrants and represents that the documents incorporated by
reference in the Prospectus comply in all material respects with
the requirements of the Exchange Act and any additional documents
deemed to be incorporated by reference in the Prospectus will, when
they are filed with the Commission, comply in all material respects
with the requirements of the Exchange Act, and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein, or necessary to make the
statements therein, in the light of the circumstances under which
they are made, not misleading.
b) The Company agrees to indemnify and hold harmless each Underwriter,
and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and
against any loss, expense, liability or claim (including the
reasonable fees and expenses of counsel and other reasonable
expenses in connection with investigating, defending or settling
any such claim) which arises out of or is based upon any alleged
untrue statement of a material fact in the Registration Statement,
any prospectus contained in the Registration Statement at the time
it became effective or the Prospectus, or any related preliminary
prospectus, or arises out of or is based upon any alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements made therein not misleading. The
foregoing shall not cover any such loss, expense, liability or
claim, however, which arises out of or is based upon any alleged
untrue statement of a material fact contained in, and in conformity
with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with
reference to the Underwriter in, any such documents or arises out
of or is based upon any alleged omission to state a
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material fact in connection with such information required to be
stated in any such documents or necessary to make such information
not misleading.
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such action
and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses. Such Underwriter or controlling
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of such counsel
shall have been authorized in writing by the Company in connection with the
defense of such action or the Company shall not have employed counsel to have
charge of the defense of such action or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the Company (in
which case the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses of one counsel (in addition to local counsel) for all
indemnified parties selected by you shall be borne by the Company. Anything in
this paragraph to the contrary notwithstanding, the Company shall not be liable
for any settlement of any such claim or action effected without its written
consent. The Company's indemnity agreement contained in this Section 7(b) and
its warranties and representations contained in this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or controlling person, and shall survive any termination of this
Agreement or the issuance and delivery of the Purchased Securities. The Company
agrees promptly to notify the Underwriters of the commencement of any litigation
or proceedings against the Company or any of its officers or directors in
connection with the issue and sale of the Purchased Securities or with such
Registration Statement or Prospectus.
8. Warranties and Representations of and Indemnity by Underwriters.
a) Each Underwriter warrants and represents that the information
furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use with reference to such
Underwriter in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary prospectus
does not contain an untrue statement of a material fact and does
not omit to state a material fact in connection with such
information required to be stated in the Registration Statement at
the time it became effective or the Prospectus, or any related
preliminary prospectus or necessary to make such information not
misleading. Each Underwriter, in addition to other information
furnished by such Underwriter or on its behalf through you to the
Company in writing expressly for use with reference to such
Underwriter in the Registration Statement and Prospectus, hereby
furnishes to the Company in writing expressly for use with
reference to such Underwriter the statements with respect to the
terms
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of offering of the Purchased Securities by the Underwriters set
forth on the cover page of the Prospectus Supplement and under
"Underwriting" therein.
b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors and its officers from and against any
loss, expense, liability or claim (including the reasonable fees
and expenses of counsel and other reasonable expenses in connection
with investigating, defending or settling any such claim) which
arises out of or is based upon any alleged untrue statement of a
material fact contained in, and in conformity with information
furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use with reference to such
Underwriter in, the Registration Statement, any prospectus
contained in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary prospectus,
or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be
stated in such documents or necessary to make such information not
misleading.
If any action is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing or by telephone, confirmed in writing, of the institution
of such action and such Underwriter shall assume the defense of such action,
including the employment of counsel and payment of expenses. The Company or such
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the Company
or such person unless the employment of such counsel shall have been authorized
in writing by such Underwriter in connection with the defense of such action or
such Underwriter shall not have employed counsel to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses for all indemnified parties of one counsel (in addition to local
counsel) selected by the Company shall be borne by such Underwriter. Anything in
this paragraph to the contrary notwithstanding, no Underwriter shall be liable
for any settlement of any such claim or action effected without the written
consent of such Underwriter. The indemnity agreement on the part of each
Underwriter contained in this Section 8(b) shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or such
person, and shall survive any termination of this Agreement or the issuance and
delivery of the Purchased Securities. Each Underwriter agrees promptly to notify
the Company of the commencement of any litigation or proceedings against such
Underwriter in connection with the issue and sale of the Purchased Securities or
with such Registration Statement or Prospectus.
9. Contribution. If the indemnification provided for in Sections 7(b) or
8(b) above is unavailable in respect of any losses, expenses,
liabilities or claims referred to therein,
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then the parties entitled to indemnification by the terms thereof shall
be entitled to contribution to liabilities and expenses except to the
extent that contribution is not permitted under the Act or the Exchange
Act. In determining the amount of contribution to which the respective
parties are entitled, there shall be considered the relative benefits
received by each party from the offering of the Purchased Securities
(taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company and the Underwriters and such controlling
persons agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even
if the Underwriters and such controlling persons were treated as one
entity for such purpose). Notwithstanding the provisions of this Section
9, no indemnifying Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by such Underwriter and distributed to the
public were offered to the public exceeds the amount of any damages
which such Underwriter otherwise has been required to pay by reason of
such untrue statement 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 contribution agreement contained in this Section 9 shall remain in
full force and effect regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its officers or
directors or any controlling person and shall survive any termination of
this Agreement or the issuance and delivery of the Purchased Securities.
10. Notices. All statements, requests, notices and agreements shall be in
writing or by telegram and, if to the Underwriters, shall be sufficient
in all respects if delivered or sent by registered mail to the address
furnished in writing for the purpose of such statements, requests,
notices and agreements hereunder, and, if to the Company shall be
sufficient in all respects if delivered or sent by registered mail to
the Company at [Name of Issuer/Address], Attention: .
11. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this agreement.
12. Parties in Interest. The Agreement herein set forth has been and is made
solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Sections 7, 8
and 9 hereof, and their respective successors, assigns, executors and
administrators, and no other person shall acquire or have any right
under or by virtue of this Agreement. Nothing in this Agreement is
intended or
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shall be construed to give to any other person, firm or corporation
(including, without limitation, any purchaser of the Purchased
Securities from an Underwriter or any subsequent holder thereof or any
purchaser of any Contract Securities or any subsequent holder thereof)
any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Securities from any Underwriter
or any subsequent holder thereof or any purchaser, as such purchaser, of any
Contract Securities or any subsequent holder thereof.
13. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
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Schedule I
DELAYED DELIVERY CONTRACT
Dated: _______________, 199
[NAME OF ISSUER]
[ADDRESS]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from [Name of Issuer] (the
"Company"), and the Company agrees to sell to the undersigned,
$___________________ principal amount of the Company's [state title of issue]
(the "Securities") offered by the Company's Prospectus dated ___________, 199__
and a Prospectus Supplement dated ___________, 199__, receipt of copies of which
is hereby acknowledged, at a purchase price of ____% of the principal amount
thereof plus accrued interest and on the further terms and conditions set forth
in this contract.
The undersigned agrees to purchase such Securities in the principal
amounts and on the delivery dates (the "Delivery" "Dates") set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
-------- --------- --------------
---------------- $--------------- ----------------
---------------- $--------------- ----------------
---------------- $--------------- ----------------
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company by wire transfer of
immediately available at Corporate Trust Office of ___________________ (or at
such other place as the undersigned and the Company shall agree) at 11:00 A.M.,
New York City Time, on such Delivery Date upon issuance and delivery to the
undersigned of the Securities to be purchased by the
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undersigned on such Delivery Date in such authorized denominations and, unless
otherwise provided herein, registered in such names as the undersigned may
designate by written or telegraphic communications addressed to the Company not
less than five full business days prior to such Delivery Date.
The obligation of the Company to sell and deliver, and of the
undersigned to take delivery of and make payment for, Securities on each
Delivery Date shall be subject to the conditions that (1) the purchase of
Securities to be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the undersigned is
subject, (2) the sale of the Securities by the Company pursuant to this contract
shall not at the time of delivery be prohibited under the laws of any
jurisdiction to which the Company is subject and (3) the Company shall have
sold, and delivery shall have taken place, to the Underwriters of such principal
amount of the Securities as is to be sold and delivered to them. In the event
that Securities are not sold to the undersigned because one of the foregoing
conditions is not met, the Company shall not be liable to the undersigned for
damages arising out of the transactions covered by this contract.
Promptly after completion of the sale and delivery 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 opinions of counsel
for the Company delivered to the Underwriters.
Failure to take delivery of and make payment for Bonds by any purchaser
under any other Delayed Delivery Contract shall not relieve the undersigned of
its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the laws of the jurisdictions
to which the undersigned is subject from purchasing the Securities hereby agreed
to be purchased and (b) the undersigned does not contemplate selling the
Securities which it has agreed to purchase hereunder prior to the Delivery Date
therefor.
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. This contract
shall be governed by and construed in accordance with the laws of the State of
New York. This contract may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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It is understood that the acceptance of any Delayed Delivery Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If the 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 signed.
Yours very truly,
____________________________________
By ____________________________________
____________________________________
____________________________________
Address
Accepted, as of the date first above written
[Name of Issuer]
By_________________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
[NAME OF ISSUER]
PURCHASE AGREEMENT
DEBT SECURITIES
_______________, 1996
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[Name of Issuer]
[ADDRESS]
Dear Sirs:
Referring to the Debt Securities, ______% Series due (the
"Securities"), of [Name of Issuer] (the "Company") covered by registration
statement on Form S-3 (No. 333- ), such registration statement including (i) the
prospectus included therein, dated , 1996, as supplemented by a prospectus
supplement dated ______________, 19 in the form first filed under Rule 424 and
any additional prospectus supplements relating to the Securities filed under
Rule 424 (such prospectus as so supplemented, including each document
incorporated by reference therein is hereinafter called the "Prospectus") and
(ii) all documents filed as part thereof or incorporated by reference therein,
is hereinafter called the "Registration Statement" on the basis of the
representations, warranties and agreements contained in this Agreement, but
subject to the terms and conditions herein set forth, the purchaser or
purchasers named in Schedule A hereto (the "Underwriters") severally agree to
purchase and the Company agrees to sell to each Underwriter the principal amount
of the Company's Securities having the terms described below (the "Purchased
Securities") set forth opposite the name of each Underwriter on Schedule A
hereto.
The price at which the Purchased Securities shall be purchased from
the Company by the Underwriters shall be ______%. The initial public offering
price shall be ______%. The Purchased Securities will be offered by the
Underwriters as set forth in the Prospectus relating to such Purchased
Securities.
The Purchased Securities will have the following terms:
Title of Securities: ____________________________
Interest rate: ____________________________
Interest Payment Dates: ____________________________
____________________________
____________________________
____________________________
____________________________
Maturity: ____________________________
Redemption Provisions: ____________________________
____________________________
____________________________
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Other:
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
____________________________
Payment for the Purchased Securities shall be made in the following
funds: ____________________________
The time of purchase shall be: ____________________________
The place(s) at which the Purchased Securities shall be delivered and
sold shall be: ____________________________
Delayed Delivery Contracts: ______________________________
Notices to the Underwriters shall be sent to the following address or
telecopier number:
If we are acting as Representative(s) for the several Underwriters
named in Schedule A hereto, we represent that we are authorized to act for such
several Underwriters in connection with the transactions contemplated in this
Agreement, and that, if there are more than one of us, any action under this
Agreement taken by any of us will be binding upon all the Underwriters.
All of the provisions contained in the document entitled "[Name of
Issuer] Standard Purchase Provisions - Debt Securities," a copy of which has
been previously furnished to us, are hereby incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Company and each Underwriter in
accordance with its terms.
Very truly yours,
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[Firm Name]
By ________________________________
Title:
[Firm Name]
By ________________________________
Title:
Acting on behalf of and as
Representative(s) of the
several Underwriters named
in Schedule A hereto.*
The foregoing Purchase Agreement is hereby confirmed as of the date first above
written.
[NAME OF ISSUER]
By ___________________________
Title:
------------------
* To be deleted if the Purchase Agreement is not executed by one or more
Underwriters acting as Representative(s) of the Underwriters for purposes of
this Agreement.
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