FORM OF
MOTOROLA, INC.
(a Delaware corporation)
Debt Securities
Debt Warrants
Common Stock
Common Stock Warrants
Units
UNDERWRITING AGREEMENT
----------------------
___________, _____
To the Representatives of the
several Underwriters named in
the respective Terms Agreements
hereinafter described
Dear Sirs:
Motorola, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell, at up to an aggregate initial public offering price of $1,000,000,000,
or the equivalent thereof in one or more foreign currencies or composite
securities, including the euro, in one or more series, its (i) unsecured debt
securities (the "Debt Securities") which may be senior (the "Senior Securities")
or subordinated (the "Subordinated Securities"), (ii) warrants to purchase the
Debt Securities (the "Debt Warrants"), (iii) shares of its common stock, $3 par
value per share (the "Common Stock"), and (iv) warrants to purchase Common Stock
(the "Common Stock Warrants") in one or more offerings on terms determined at
the time of sale. The Debt Securities, Debt Warrants, Common Stock and Common
Stock Warrants may be offered separately or as a part of units consisting of one
or more such securities (the "Units"; and together with the Debt Securities,
Debt Warrants, Common Stock and Common Stock Warrants, the "Offered
Securities"). The Debt Securities and the Units containing the Debt Securities
(collectively, the "Offered Debt Securities") will be issued under one of
several indentures depending upon the particular issuance. The Senior
Securities will be issued under an indenture dated as of May 1, 1995 between the
Company and Xxxxxx Trust and Savings Bank, as Trustee (the "Senior Indenture").
The Subordinated Securities will be issued under an indenture between the
Company and a trustee to be named in the Terms Agreement (as defined below)
relating to any Subordinated Securities (the "Subordinated
Indenture"). The Senior Indenture and Subordinated Indenture are sometimes
referred to as the "Indentures." The Debt Warrants, Common Stock Warrants and
Units containing either of the foregoing (collectively, the "Warrants") will be
issued under one or more warrant agreements (the "Warrant Agreements") between
the Company and the Warrant Agent identified in such Warrant Agreement. Each
issue of the Offered Debt Securities and Warrants may vary, as applicable, as to
the aggregate principal amount, maturity date or dates, interest rate or rates
and timing of payments thereof, redemption provisions, conversion provisions,
exercise provisions and sinking fund requirements, if any, and any other
variable terms which the applicable Indenture or Warrant Agreement, as the case
may be, contemplates may be set forth in the Offered Debt Securities and
Warrants as issued from time to time.
Whenever the Company determines to make an offering of Offered Securities,
it will enter into an agreement substantially in the form of Exhibit A hereto
(the "Terms Agreement") providing for the sale of such Offered Securities to,
and the purchase and offering thereof by, the underwriter or underwriters named
therein (the "Underwriters" or "you", which terms shall include the underwriter
or underwriters named therein whether acting alone in the sale of the Offered
Securities or as members of an underwriting syndicate). The Terms Agreement
relating to each offering of the Offered Securities shall specify, where
applicable, the principal amount of the Offered Securities to be issued, the
name or names of the Underwriters participating in such offering (subject to
substitution as provided in Section 9 hereof) and the principal amount of the
Offered Securities which each severally agrees to purchase, the name or names of
the Underwriters acting as manager or co-managers in connection with such
offerings, if any (the "Representatives", which term shall include each
Underwriter in the event that there shall be no manager or co-managers), the
price at which the Offered Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the date, time and place of
delivery and payment, the number of shares to be issued in the case of the
issuance of the Common Stock, and, to the extent not otherwise specified in the
applicable Indenture or Warrant Agreement in the case of the issuance of the
Offered Debt Securities or Warrants, their terms. Each offering of the Offered
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of
such Offered Securities.
2
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-______) relating to
(i) the Offered Securities and (ii) the Common Stock issuable upon conversion or
exercise of the Offered Securities in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "1933 Act"), and has filed such amendments thereto as
may have been required to the date hereof. Such registration statement, as
amended, has been declared effective by the Commission, and the Indentures have
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement, as amended, and the prospectus relating to
the sale of the Offered Securities by the Company constituting a part thereof,
including all documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively; provided,
however, that a supplement of the Prospectus contemplated by Section 3(a)(ix)
hereof (a "Prospectus Supplement") shall be deemed to have supplemented the
Prospectus only with respect to the offering of Offered Securities to which such
Prospectus Supplement relates. If the Company elects to rely on Rule 434 under
the rules and regulations of the 1933 Act (the "1933 Act Regulations"), all
references to the Prospectus shall be deemed to include, without limitation, the
form of prospectus and the abbreviated term sheet, taken together, provided to
the Underwriters by the Company in reliance on Rule 434 of the 1933 Act
Regulations (the "Rule 434 Prospectus"). If the Company files a registration
statement to register a portion of the Offered Securities and relies on Rule
462(b) of the 1933 Act Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to both the registration statement referred to above (No. 333-
_____) and the Rule 462 Registration Statement, as each such registration
statement may be amended pursuant to the 1933 Act.
SECTION 1. Representations and Warranties. (a) The Company represents
------------------------------
and warrants to each Underwriter as of the date hereof and as of the date of the
applicable Terms Agreement (such latter date being hereinafter referred to as
the "Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of
3
the applicable Representation Date, complied in all material respects with
the 1933 Act and the 1933 Act Regulations. The Registration Statement, at
the time the Registration Statement became effective (or, if an amendment
to the Registration Statement or an annual report on Form 10-K has been
filed by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the most recent such
filing) did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, did not contain an 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; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter, or on behalf of any Underwriter by the Representatives,
expressly for use in the Registration Statement or Prospectus.
(ii) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together and with the other information in
the Prospectus, at the time the Registration Statement and any amendments
thereof became or become effective under the 1933 Act and at each
Representation Date, did not 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 light of the
circumstances under which they are made, not misleading.
(iii) The Company and its subsidiaries considered as a whole have not
sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth,
incorporated by reference or contemplated
4
in the Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
otherwise stated or incorporated therein, there has not been any change in
the capital stock (other than upon exercise of outstanding stock options or
upon conversion of convertible securities outstanding on the date of the
most recent balance sheet included in the Prospectus or pursuant to the
Company's employee stock ownership plan or pursuant to the Company's
employee stock purchase plans or the Company's employee savings and profit
sharing plan), any significant increase in the long-term debt of the
Company and its subsidiaries taken as a whole, or any material adverse
change, or any development which the Company has reasonable cause to
believe will involve a prospective material adverse change, in or affecting
the general affairs, management, consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole, or, other than the Company's regular
quarterly dividend, any dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(iv) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to conduct its business as described in
the Prospectus with only such exceptions as are not material to the
business of the Company and its subsidiaries considered as a whole.
(v) The authorized capitalization is as set forth or incorporated by
reference in the Prospectus and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable.
(vi) The execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the applicable Indenture in the case of the
issuance of the Offered Debt Securities, and the applicable Warrant
Agreement in the case of the issuance of the Warrants, and the consummation
of the transactions contemplated herein and therein have been duly
authorized by all necessary corporate action and will not conflict with or
constitute a breach of, or a default under, any material contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company is a party or by which the Company is
bound; nor will
5
such action result in a violation of the provisions of the Company's
Restated Certificate of Incorporation or bylaws of the Company, as amended,
or any applicable law, rule, regulation, judgment, order or administrative
or court decree.
(vii) Other than (a) as set forth, incorporated by reference, or
contemplated in the Prospectus and (b) litigation incident to the kind of
business conducted by the Company and its subsidiaries, which in the case
of those items in (b) individually and in the aggregate is not material to
the Company and its subsidiaries considered as a whole, there are no legal
or governmental proceedings pending to which the Company and its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or its subsidiaries, the Company has reasonable cause to believe
would individually or in the aggregate have a material adverse effect on
the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole; and,
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(viii) No consent, approval or authorization of any court or
governmental authority or agency is necessary in connection with the sale
of the Offered Securities or the consummation of the other transactions
contemplated by this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement in the case of the issuance of the Warrants,
or the applicable Indenture in the case of the issuance of the Offered Debt
Securities, except as may be required under the 1933 Act or 1933 Act
Regulations, the 1934 Act or 1934 Act Regulations, the 1939 Act or state
securities laws.
(ix) The Company has complied and will comply with the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to
issuers doing business in Cuba.
(x) The Company has reviewed its operations and the operations of
its subsidiaries and has made inquiries of material suppliers, vendors and
customers to evaluate the extent to which the business or operations of the
Company or any of its subsidiaries may be affected by the Year 2000
Problem. As a result of such review, at the date hereof the
6
Company has no reason to believe, and does not believe, that the Year 2000
Problem, including costs of remediation, will have a material adverse
effect on the consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
whole. The Year 2000 Problem shall mean any significant risk that computer
hardware or software or embedded microchips used in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission
or other utilization of data or in the operation of mechanical or
electrical systems of any kind will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as effectively
as in the case of dates or time periods occurring prior to January 1, 2000.
(b) In the event the Offered Securities are Offered Debt Securities, the
Company additionally represents and warrants to each Underwriter as of the
Representation Date that the Offered Debt Securities to be issued and sold
pursuant to this Agreement have been duly authorized, and when issued,
authenticated and delivered pursuant to this Agreement, against payment of the
consideration set forth in the Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture under which they are to be issued, which will be substantially in the
form included as an exhibit to the Registration Statement; the applicable
Indenture has been duly authorized, and when duly executed and delivered by the
Company and the applicable Trustee, will constitute a valid and legally binding
instrument enforceable against the Company in accordance with its terms subject,
as to enforcement, to bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Offered Debt Securities
denominated other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the making of payments
outside the United States; and the Offered Debt Securities and the applicable
Indenture conform in all material respects to the descriptions thereof in, or
incorporated by reference into, the Prospectus and the applicable Prospectus
Supplement.
(c) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company makes the following
7
additional representations and warranties to each Underwriter as of the
Representation Date:
(i) The shares of Common Stock initially issuable upon conversion or
exercise, as the case may be, have been duly authorized and reserved for
issuance, and when issued and delivered, pursuant to the terms of the
Indenture or Warrant Agreement, as the case may be, will be validly issued,
fully paid and non-assessable.
(ii) Holders of Offered Securities receiving shares of Common Stock
issued upon the conversion or exercise of such Offered Securities, as the
case may be, will also be entitled, to the same extent as will all shares
of Common Stock issuable at such time otherwise than upon the conversion or
exercise of such Offered Securities, to one preferred share purchase right
(a "Right") in respect of each share of Common Stock so received; each such
Right has been duly authorized, and when issued and delivered in accordance
with the terms of the Rights Agreement, dated as of November 5, 1998,
between the Company and Xxxxxx Trust and Savings Bank, as amended, (the
"Rights Agreement"), will have been duly executed, issued and delivered;
the Rights Agreement has been duly authorized, executed and delivered by
the Company and Xxxxxx Trust and Savings Bank and is enforceable against
the Company in accordance with its terms, subject, as to enforcement, to
general equity principles; and the Rights and the Rights Agreement conform
in all material respects to the descriptions thereof included in or
incorporated by reference into the Prospectus and the applicable Prospectus
Supplement.
(iii) The Common Stock conforms in all material respects to the
description thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement and is not subject to
preemptive or other similar rights.
(d) In the event the Offered Securities are Warrants, the Company
additionally represents and warrants to each Underwriter as of the
Representation Date that the Warrants to be issued and sold pursuant to this
Agreement have been duly authorized, and when issued, authenticated and
delivered pursuant to this Agreement, against payment of the consideration set
forth in the Terms Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Warrant Agreement under
which they are to be issued, which will be
8
substantially in the form included as an exhibit to the Registration Statement;
the applicable Warrant Agreement has been duly authorized, and when duly
executed and delivered by the Company and the applicable Warrant Agent, will
constitute a valid and legally binding instrument enforceable in accordance with
its terms subject, as to enforcement, to bankruptcy, insolvency, reorganization
or other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Warrants and the applicable
Warrant Agreement conform in all material respects to the descriptions thereof
in, or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement.
(e) In the event the Offered Securities are shares of Common Stock or Units
containing shares of Common Stock, the Company makes the following additional
representations and warranties to each Underwriter as of the Representation
Date:
(i) The Common Stock to be issued and sold pursuant to this Agreement
has been duly authorized, and when issued and delivered pursuant to this
Agreement, against payment of the consideration set forth in the applicable
Terms Agreement, will be validly issued and fully paid and non-assessable.
(ii) The Offered Securities will be entitled, to the same extent as
all other shares of Common Stock issued or to be issued by the Company, to
one Right in respect of each share of Common Stock so received; each such
Right has been duly authorized, and when issued and delivered in accordance
with the terms of the Rights Agreement will have been duly executed, issued
and delivered; the Rights Agreement has been duly authorized, executed and
delivered by the Company and Xxxxxx Trust and Savings Bank and is
enforceable against the Company in accordance with its terms, subject, as
to enforcement, to general equity principles; and the Rights and the Rights
Agreement conform to the descriptions thereof included in or incorporated
by reference into the Prospectus and the applicable Prospectus Supplement.
(iii) The Common Stock conforms in all material respects to the
description thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement and is not subject to
preemptive or other similar rights.
(f) In the event the Offered Securities are Debt Warrants or Units
containing Debt Warrants, the Company makes the following
9
additional representations and warranties to each Underwriter as of the
Representation Date:
(i) The debt securities initially issuable upon the exercise of such
Offered Securities, have been duly authorized, and, when issued, will be
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the indenture under which they will be issued.
(ii) The debt securities issuable upon exercise of the Debt Warrants
conform in all material respects to the description thereof included in or
incorporated by reference into the Prospectus and the applicable Prospectus
Supplement.
(g) In the event the Offered Securities are Warrants or Offered Debt
Securities convertible into Common Stock, the Company additionally represents
and warrants to each Underwriter as of the Representation Date that upon
issuance and delivery of such Warrants or Debt Securities in accordance with (i)
this Agreement and the applicable Terms Agreement, and (ii) the applicable
Warrant Agreement or Indenture, as the case may be, the Warrants shall be
exercisable at the option of the holder thereof for shares of Common Stock or
debt securities, as the case may be, in accordance with the terms of the
Warrants and the applicable Warrant Agreement, and such Debt Securities shall be
convertible at the option of the holder thereof for shares of Common Stock in
accordance with the terms of such Debt Securities and the applicable Indenture.
(h) Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with an
offering of Offered Securities shall be deemed a representation and warranty by
the Company as to the matters covered thereby, to each Underwriter.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
----------------------------------------------
(a) The several commitments of the Underwriters to purchase the Offered
Securities pursuant to any Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
10
(b) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters shall be made at the place set
forth in the applicable Terms Agreement, or at such other place as shall be
agreed upon by the Representatives and the Company, on the third business day
(unless postponed in accordance with the provisions of Section 9) following the
date of the applicable Terms Agreement, unless the Offered Securities are priced
after 4:30 p.m. New York time in which case such payment and delivery will be
made on the fourth business day following the date of the applicable Terms
Agreement (unless postponed in accordance with the provisions of Section 9), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (each such time and date
being referred to as a "Closing Time"). Payment shall be made to the Company by
certified or official bank check or checks drawn in New York Clearing House
funds or similar next day funds payable to the order of the Company, against
delivery to the Representatives for the respective accounts of the Underwriters
of the Offered Securities to be purchased by them.
(c) Certificates for the Offered Securities shall be in such denominations
and registered in such names as the Representatives may request in writing at
least one business day before the applicable Closing Time. The certificates for
the Offered Securities, which may be in temporary form, will be made available
for examination and packaging by the Representatives in New York City not later
than 3:00 p.m. on the last business day prior to the applicable Closing Time.
SECTION 3. Covenants. (a) The Company covenants with each Underwriter as
---------
follows:
(i) From the date of the applicable Terms Agreement, and for so long
as a Prospectus is required to be delivered in connection with the sale of
the Offered Securities covered by such Terms Agreement, the Company will
notify the Representatives immediately, and confirm the notice in writing,
(A) of the effectiveness of any amendment to the Registration Statement,
(B) of the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference into the Registration
Statement or Prospectus, (C) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any Prospectus Supplement, or the documents incorporated therein, (D) of
any request by the Commission for any amendment to the Registration
Statement or
11
any amendment or supplement to the Prospectus, or the documents
incorporated therein, or for additional information, (E) of the suspension
of the qualification of (i) the Offered Securities, or (ii) the shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise of the Offered Securities, in the case of the
issuance of Offered Securities convertible into or exercisable for Common
Stock, for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for any such purpose, and (F) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any order preventing or suspending the use
of the Prospectus or any preliminary prospectus supplement, or the
initiation of any proceedings for any such purpose. The Company will use
every reasonable effort to prevent the issuance of any stop order or any
order preventing or suspending the use of the Prospectus or any preliminary
prospectus supplement or suspending such qualification, and, in the event
of the issuance of a stop order or any order preventing or suspending the
use of the Prospectus or any preliminary prospectus supplement or
suspending such qualification, to obtain the lifting thereof at the
earliest possible moment.
(ii) From the date of the applicable Terms Agreement, and for so long
as a Prospectus is required to be delivered in connection with the sale of
the Offered Securities covered by such Terms Agreement, the Company will
give the Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus (including any
revised prospectus which the Company proposes for use by you in connection
with the offering of the Offered Securities which differs from the
prospectus on file with the Commission at the time the Registration
Statement became effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations,
or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933
Act Regulations) and will furnish them with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which
you or your counsel shall reasonably object.
12
(iii) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
(iv) The Company will deliver to each of the Representatives two
copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and, if applicable, documents incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act) and
will also deliver to the Representatives, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, as many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) as the
Representatives may reasonably request.
(v) Prior to 1:00 p.m., New York City time, on the business day next
succeeding the date of the applicable Terms Agreement and from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, the Company will furnish to the Representatives
in New York City such number of copies of the Prospectus (as amended or
supplemented) as the Representatives may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(vi) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the Prospectus
(in form and substance satisfactory to your counsel) so that, as so amended
or supplemented, 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, in light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, and the Company will
furnish to the Representatives a reasonable number of copies of such
amendment or supplement.
13
(vii) The Company will endeavor, in cooperation with you, to qualify
the Offered Securities and, in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, the shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise, as the case may be, for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representatives may designate; provided, however, that the Company shall
not be obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service of
process in any jurisdiction. In each jurisdiction in which the Offered
Securities, or in the case of the issuance of Offered Securities
convertible into or exercisable for Common Stock, such shares of Common
Stock (including the Rights associated therewith), have been so qualified,
the Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for so
long as may be required to complete such distribution of such Offered
Securities.
(viii) With respect to each sale of Offered Securities, the Company
agrees that it will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the
period covered thereby, earnings statements (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a twelve-month period
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement relating to such Offered Securities.
(ix) If the Company elects not to rely on Rule 434 under the 1933
Act Regulations, immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth,
where applicable, the principal amount or number of shares, as the case may
be, of the Offered Securities covered thereby, the name or names of the
Underwriters (subject to substitution as provided in Section 9 hereof) and
the principal amount or number of shares, as the case may be, of the
Offered Securities which each severally has agreed to purchase, the name or
names of the Representatives, the price at which the Offered Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, the other
terms of the Offered Securities
14
to the extent not otherwise specified in the applicable Indenture or
Warrant Agreement, as the case may be, in the event the Offered Securities
are Offered Debt Securities or Warrants, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing pursuant
to Rule 424 of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus and such
Prospectus Supplement as the Representatives shall reasonably request. If
the Company elects to rely on Rule 434 of the 1933 Act Regulations,
immediately following the execution of each Terms Agreement, the Company
will (i) prepare an abbreviated term sheet that complies with the
requirements of Rule 434 of the 1933 Act Regulations, (ii) provide the
Underwriters with copies of the form of the Rule 434 Prospectus in such
number as the Underwriters may reasonably request and (iii) file or
transmit for filing with the Commission the form of Prospectus complying
with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule
424(b) of the 1933 Act Regulations by the close of business in New York on
the business day immediately succeeding the date of the Terms Agreement.
(b) In the event the Offered Securities are Offered Debt Securities, Debt
Warrants or Units containing Debt Warrants, the Company additionally covenants
with each Underwriter that the Company will not contract to sell or announce or
make any offering, sale or other disposition of any debt securities of the
Company having a maturity greater than one year during the period beginning from
the date of any Terms Agreement and continuing through the later of the
termination of trading restrictions with respect to the Offered Securities, as
notified to the Company by the Representatives, or the applicable Closing Time
except for (i) proposed issues of debt securities with respect to which the
Company shall have advised the Representatives in writing prior to the execution
hereof and (ii) except for such other debt securities with respect to which the
Representatives have given their prior written consent.
(c) In the event the Offered Securities are shares of Common Stock, Units
containing shares of Common Stock or are convertible into or exercisable for
Common Stock, the Company additionally covenants with each Underwriter as
follows:
(i) The Company will not contract to sell or announce or make any
offering, sale or other disposition of any shares of
15
Common Stock or any securities convertible into or exchangeable for shares
of Common Stock (collectively, "Common Equity Securities"), nor will the
Company sell or grant options, rights or warrants with respect to any
Common Equity Securities (except under the Company's stock option and other
employee incentive and benefit plans existing on the date of the applicable
Terms Agreement, except for sales of Common Equity Securities under
currently effective secondary shelf registration statements, except for no
more than 2,700,000 shares of Common Stock issued as consideration for
acquisitions and except for Common Stock issued upon conversion of
outstanding convertible securities) in each case during a period of 90 days
after the commencement of the public offering of the Offered Securities
referenced in Section 3(c) hereof, except for (a) proposed issues of Common
Equity Securities with respect to which the Company shall have advised the
Representatives in writing prior to the execution hereof and (b) except for
such other Common Equity Securities with respect to which the
Representatives have given their prior written consent.
(ii) The Company will use its best efforts to effect the listing of
(A) Offered Securities that are shares of the Common Stock and (B) shares
of the Common Stock issuable upon the conversion or exercise of the Offered
Securities, as the case may be, on the New York Stock Exchange (and/or such
other exchanges or trading markets on which the Common Stock is then listed
or admitted for trading), and to cause such Offered Securities to be
registered under the 1934 Act.
(iii) In the case of the issuance of Offered Securities convertible
into or exercisable for Common Stock, the Company agrees to reserve and
keep available at all times, free of preemptive rights, shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations to
issue shares of Common Stock upon conversion or exercise of the Offered
Securities, as the case may be.
SECTION 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement and each
Terms Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the copying of
this Agreement, each Terms Agreement, the Indentures, in the case of the
issuance of the Offered Debt Securities, and the Warrant Agreements, in the case
of the issuance of the Warrants, (iii) the preparation, issuance and delivery to
the Underwriters of the certificates for the Offered
16
Securities, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Offered Securities and, in the case of
the issuance of Offered Securities convertible into or exercisable for Common
Stock, the shares of Common Stock (including the Rights associated therewith)
issuable upon the conversion or exercise of the Offered Securities, as the case
may be, under securities laws in accordance with the provisions of Section
3(a)(vii), including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of any preliminary prospectuses and of the Prospectus and any
amendments or supplements (including any preliminary prospectus supplements)
thereto, including, if applicable, the abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vii) the copying and
delivery to the Underwriters of copies of the Blue Sky survey, (viii) in the
case of the issuance of Offered Debt Securities, the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indentures, (ix) in the case of the issuance of Warrants,
the fees and expenses of the Warrant Agent, including the fees and disbursements
of counsel for the Warrant Agent in connection with the Warrant Agreements, (x)
where applicable, any fees payable in connection with the rating of the Offered
Securities, (xi) where applicable, the filing fee payable to the National
Association of Securities Dealers, Inc. incident to any required review of the
terms of the sale of the Offered Securities, (xii) where applicable, the fees
and expenses incurred in connection with the listing of the Offered Securities,
and in the case of the issuance of Offered Securities convertible into or
exercisable for Common Stock, the shares of Common Stock issuable upon the
conversion or exercise of the Offered Securities, as the case may be, on the New
York Stock Exchange (and/or such other exchanges or trading markets on which the
Common Stock is then listed or admitted for trading), and (xiii) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. Except as provided in
this Section and in Sections 6 and 7, the Underwriters will pay all of their own
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes on resale of any of the Offered Securities by them, and any
advertising expenses which they may incur.
If a Terms Agreement is terminated by the Representatives in accordance
with the provisions of Section 5, other than solely as
17
the result of a material adverse change in the financial markets in the United
States as provided for in Section 5(f)(iii), the Company shall reimburse you for
all out-of-pocket expenses, including the reasonable fees and disbursements of
your counsel, reasonably incurred by you in making preparations for the
purchase, sale and delivery of the Offered Securities.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
---------------------------------------
the Underwriters to purchase the Offered Securities pursuant to any Terms
Agreement are subject, in the discretion of the Representatives, to the accuracy
of the representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) At the applicable Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission; all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction; and the Prospectus as
amended or supplemented in relation to the applicable Offered Securities shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for filing pursuant to the 1933 Act and the
1933 Act Regulations.
(b) At the applicable Closing Time, you shall have received the favorable
opinion, dated as of the applicable Closing Time, of Xxxxx X. Xxxxxxx, Senior
Counsel, of the Law Department of the Company, or another attorney employed by
the Company who is acceptable to the Representatives (the "Company Attorney's
Opinion") (except in the case of (A) item (1)(vii), where applicable, insofar as
it relates to "Certain Tax Aspects", which opinion shall be delivered by a
special outside tax counsel to the Company, and (B) items (2) and (6), in each
case where applicable, which opinions shall be delivered by Xxxxxxxx & Xxxxx,
counsel to the Company, or such other counsel who is acceptable to the
Representatives (the "New York Attorney's Opinion")), in form and substance
satisfactory to your counsel.
(1) The Company Attorney's Opinion shall be to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power
18
and authority to conduct its business as described in the Prospectus.
(ii) The authorized capitalization of the Company is as set
forth or incorporated by reference in the Prospectus and all of the
issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable.
(iii) This Agreement and the applicable Terms Agreement have each
been duly authorized, executed and delivered by the Company.
(iv) A member of the Commission's staff has advised such counsel
by telephone that the Commission has entered an order declaring the
Registration Statement effective under the 1933 Act and, to the best
of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the
Commission.
(v) At the time the Registration Statement became effective and
at each Representation Date, the Registration Statement and the
Prospectus (other than the financial statements and other financial
data and supporting schedules included therein and in the documents
incorporated by reference into the Prospectus, as to which no opinion
need be rendered) appeared on its face to comply as to form in all
material respects with the applicable requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and
regulations thereunder and, where applicable, the Rule 434 Prospectus
conforms to the requirements of Rule 434 of the 1933 Act Regulations
in all material respects; the documents incorporated by reference into
the Prospectus (other than the financial statements and other
financial data and supporting schedules included therein, as to which
no opinion need be rendered), when they were filed with the
Commission, complied as to form in all material respects with the
applicable requirements of the 1934 Act and the 1934 Act Regulations;
and to the best of such counsel's knowledge, there are no contracts or
other documents required to be described or referred to in the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to
19
therein or filed or incorporated by reference thereto and the
descriptions thereof or references thereto are correct in all material
respects.
(vi) To the best of such counsel's knowledge, other than as set
forth or incorporated by reference or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject, other than
litigation incident to the kind of business conducted by the Company
and its subsidiaries, which litigation incident to the Company's
business individually and in the aggregate is not material to the
Company and its subsidiaries considered as a whole; and, to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(vii) Where applicable, the discussion in the Prospectus or the
applicable Prospectus Supplement under "Certain Tax Aspects" (or a
similar heading or headings) is a fair and accurate summary of the
matters addressed therein, based upon current law and the assumptions
stated or referred to therein.
(viii) No consent, approval, authorization, order, registration
or qualification of any court or governmental authority or agency is
required in connection with the issuance and sale of the Offered
Securities or the consummation of the other transactions contemplated
by this Agreement, the applicable Terms Agreement, the applicable
Warrant Agreement in the case of the issuance of the Warrants, or the
applicable Indenture in the case of the issuance of the Offered Debt
Securities, except such as have been obtained or rendered, as the case
may be, or such consents, approvals, authorizations, registrations or
qualifications as may be required under the securities or Blue Sky
laws of any jurisdiction in connection with the purchase and
distribution of the Offered Securities by you or the issuance of
shares of Common Stock (including the Rights associated therewith),
upon conversion or exercise of the Offered Securities, in the case of
the issuance of Offered Securities convertible into or exercisable for
Common Stock.
20
(ix) The execution and delivery of this Agreement, the applicable
Terms Agreement, the applicable Indenture in the case of the issuance
of the Offered Debt Securities, and the applicable Warrant Agreement
in the case of the issuance of the Warrants, the issuance of the
Offered Securities and the shares of Common Stock (including the
Rights associated therewith) issuable upon conversion or exercise of
the Offered Securities in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, the
compliance by the Company with all of the provisions of the Offered
Securities and the applicable Indenture and Warrant Agreement in the
case of the issuance of Offered Debt Securities or Warrants, this
Agreement and the applicable Terms Agreement and the consummation of
the transactions herein or therein contemplated do not and will not
conflict with or constitute a breach of, or a default under, (a) the
Company's Restated Certificate of Incorporation or bylaws of the
Company, as amended, (b) any indenture, mortgage, loan agreement or
note or any material contract, lease or other agreement or instrument,
in each case known to such counsel and to which the Company is a party
or by which the Company is bound, or (c) any applicable law, rule,
regulation, judgment, order or administrative or court decree known to
such counsel (except that such counsel need express no opinion in
response to this item as to compliance with any disclosure
requirements).
(2) In the event the Offered Securities are Offered Debt Securities,
the New York Attorney's Opinion shall be to the effect that:
(i) The applicable Indenture has been duly authorized, executed
and delivered by the Company and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms (provided, that such counsel may take customary exceptions to
such opinion to cover commonly known limitations on enforceability).
(ii) The Offered Debt Securities are in the form established
pursuant to the applicable Indenture, have been duly authorized,
executed and delivered by the Company, and when issued and delivered
by the Company against payment therefor in accordance with the terms
of such Indenture, will constitute Debt Securities under the terms of
such Indenture, will constitute the valid and
21
binding obligations of the Company, and will be enforceable against
the Company in accordance with their terms, and the holders thereof
will be entitled to the benefits provided by such Indenture (provided,
that such counsel may take customary exceptions to such opinion to
cover commonly known limitations on enforceability).
(iii) The applicable Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
(iv) The Offered Debt Securities and the applicable Indenture
conform to the descriptions thereof in, or incorporated by reference
in, the Prospectus and the applicable Prospectus Supplement.
(v) The statements set forth in the Prospectus and the
applicable Prospectus Supplement under "Description of Debt
Securities" (or a similar heading or headings), insofar as they
purport to constitute summaries of certain terms of the Offered Debt
Securities and the applicable Indenture are accurate in all material
respects.
(3) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company Attorney's Opinion shall
additionally be to the effect that:
(i) Holders of Offered Securities convertible into or
exercisable for Common Stock receiving shares of Common Stock issued
upon the conversion or exercise of such Offered Securities, as the
case may be, will also be entitled, to the same extent as will all
shares of Common Stock issuable at such time otherwise than upon the
conversion or exercise of such Offered Securities, to one Right in
respect of each share of Common Stock so received; each such Right has
been duly authorized, and when issued and delivered in accordance with
the terms of the Rights Agreement, will have been duly executed,
issued and delivered; the Rights Agreement, as amended, has been duly
authorized, executed and delivered by the Company and Xxxxxx Trust and
Savings Bank and is enforceable against the Company in accordance with
its terms, subject, as to enforcement, to general equity principles;
and the Rights and the Rights Agreement conform to the descriptions
thereof included in or
22
incorporated by reference into the Prospectus and the applicable
Prospectus Supplement.
(ii) Upon issuance and delivery of Offered Securities
convertible into or exercisable for Common Stock in accordance with
this Agreement and the applicable Terms Agreement, and the applicable
Indenture or Warrant Agreement, as the case may be, such Offered
Securities shall be convertible or exercisable at the option of the
holder thereof for shares of Common Stock in accordance with the terms
of such Offered Securities and the applicable Indenture or Warrant
Agreement, as the case may be; and the shares of Common Stock
initially issuable upon conversion or exercise of such Offered
Securities have been duly authorized and reserved for issuance and,
when issued and delivered pursuant to the terms of the applicable
Indenture or Warrant Agreement, as the case may be, will be validly
issued, fully paid and non-assessable.
(iii) The Common Stock conforms to the description thereof in,
or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other
similar rights; and the information in the Prospectus and the
applicable Prospectus Supplement under "Description of Capital Stock"
(or a similar heading or headings) to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(iv) The shares of Common Stock issuable upon the conversion or
exercise of such Offered Securities, as the case may be, have been
approved for listing upon notice of issuance on the New York Stock
Exchange (and/or such other principal exchanges or trading markets on
which the Common Stock is then listed or admitted for trading).
(4) In the event the Offered Securities are Warrants, the Company
Attorney's Opinion shall additionally be to the effect that:
(i) The Warrants to be issued and sold by the Company pursuant
to this Agreement and the applicable Terms Agreement have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled
23
to the benefits provided by the applicable Warrant Agreement; the
Warrants and the applicable Warrant Agreement conform to the
descriptions thereof in, or incorporated by reference into, the
Prospectus and the applicable Prospectus Supplement; and the
information in the Prospectus and the applicable Prospectus Supplement
under "Description of Securities Warrants" (or a similar heading or
headings) to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(ii) The applicable Warrant Agreement has been duly authorized,
executed and delivered by the parties thereto and constitutes a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(5) In the event the Offered Securities are shares of Common Stock or
Units containing shares of Common Stock, the Company Attorney's Opinion
shall additionally be to the effect that:
(i) The Common Stock conforms to the description thereof in, or
incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other
similar rights; and the information in the Prospectus and the
applicable Prospectus Supplement under "Description of Capital Stock"
(or a similar heading or headings) to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(ii) The Common Stock will be entitled, to the same extent as any
other shares of Common Stock issued or to be issued by the Company, to
one Right in respect of each share of Common Stock so received; each
such Right has been duly authorized, and when issued and delivered in
accordance with the terms of the Rights Agreement will have been duly
executed, issued and delivered; the Rights Agreement has been duly
authorized, executed and delivered by the Company and Xxxxxx Trust and
Savings Bank and is enforceable against the Company in accordance with
its terms, subject, as to enforcement, to general
24
equity principles; and the Rights and the Rights Agreement conform to
the descriptions thereof included in or incorporated by reference into
the Prospectus.
(iii) The Common Stock to be issued and sold pursuant to this
Agreement and the applicable Terms Agreement has been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in the Terms
Agreement, will be validly issued and fully paid and non-assessable.
(iv) The shares of Common Stock to be issued and sold pursuant
to this Agreement and the applicable Terms Agreement have been
approved for listing upon notice of issuance on the New York Stock
Exchange (and/or such other principal exchanges or trading markets on
which the Common Stock is then listed or admitted for trading).
(6) In the event the Offered Securities are Debt Warrants or Units
containing Debt Warrants, the New York Attorney's Opinion shall be to the
effect that:
(i) Upon issuance and delivery of Offered Securities
exercisable into debt securities, such Offered Securities shall be
exercisable at the option of the holder thereof for debt securities in
accordance with the terms of such Offered Securities and the
applicable Warrant Agreement; and the debt securities initially
issuable upon the exercise of such Offered Securities, have been duly
authorized, and, when issued, will constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the indenture under which they will be issued.
(ii) The statements set forth in the applicable Prospectus
Supplement describing the debt securities issuable upon exercise of
the Debt Warrants, insofar as they purport to constitute summaries of
certain terms of the debt securities, are accurate in all material
respects.
The Company Attorney's Opinion shall additionally state that nothing has
come to his or her attention that has caused him or her to believe that the
Registration Statement (other than the financial statements, financial data and
schedules included
25
therein, as to which such counsel need express no belief), at the time it became
effective or at the Representation Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (other than the financial statements, financial data and schedules
included therein, as to which such counsel need express no belief), at the
Representation Date (unless the term "Prospectus" refers to a prospectus which
has been provided to you by the Company for use in connection with the offering
of the Offered Securities which differs from the Prospectus on file at the
Commission at the Representation Date, in which case at the time it is provided
to you for such use) or at Closing Time, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) At the applicable Closing Time, you shall have received the favorable
opinion, dated as of the applicable Closing Time, of your counsel, with respect
to the matters set forth in (b)(1)(i) (insofar as it relates to the existence
and good standing of the Company), (b)(1)(iii) - (v), inclusive (in the case of
(v), insofar as it relates to the compliance of the Registration Statement and
Prospectus as to form), (b)(2)(i), (b)(2)(ii), (b)(3)(ii), (b)(3)(iii) (insofar
as it relates to the description of the Common Stock), (b)(4)(i), (b)(4)(ii),
(b)(5)(i) (insofar as it relates to the description of the Common Stock),
(b)(5)(iii), (b)(6)(i) and (b)(6)(ii) as well as the last paragraph of
subsection (b) of this Section.
(d) (i) The Company and its subsidiaries considered as a whole shall have
not sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth, incorporated by reference or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus there
shall not have been any change in the capital stock (other than upon exercise of
outstanding stock options or upon conversion of convertible securities
outstanding at the date of the most recent balance sheet included in the
Prospectus or pursuant to the Company's employee stock ownership plan or
pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan) or any significant increase in long-
term debt of the Company
26
and its subsidiaries considered as a whole or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries considered as a whole, otherwise than as set
forth or incorporated by reference or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is in your judgment
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
(e) On or after the date of the applicable Terms Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities.
(f) On or after the date of the applicable Terms Agreement there shall not
have occurred any of the following: (i) a suspension or material limitation in
trading in the Common Stock or securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New York
or Illinois declared by either Federal or state authorities; or (iii) any
material adverse change in the financial markets in the United States or the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(g) You shall have received a certificate of the Vice Chairman and Chief
Executive Officer, the President or another senior officer acceptable to you of
the Company and of the Chief Financial Officer, Controller, Treasurer or
Assistant Treasurer of the Company, dated as of the applicable Closing Time, to
the effect that (i) the Company and its subsidiaries shall not have sustained
any loss or interference with its business of the type specified in Section
5(d)(i) and there shall not have occurred any change of the type specified in
Section 5(d)(ii), (ii) there shall not have occurred any downgrading of the type
specified in Section 5(e), (iii) the applicable representations and warranties
in Section 1
27
are true and correct with the same force and effect as though expressly made at
and as of such Closing Time, (iv) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to such Closing Time, and (v) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(h) At the time of the execution of each Terms Agreement, you shall have
received from KPMG LLP a letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are independent public
accountants with respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in or incorporated by
reference into the Registration Statement or the Prospectus and covered by their
opinions therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations; (iii) based upon limited procedures set
forth in detail in such letter, nothing has come to their attention which causes
them to believe that (A) the unaudited financial statements and supporting
schedules of the Company and its subsidiaries included in or incorporated by
reference into the Registration Statement or the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act
Regulations, as the case may be, or are not presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in or
incorporated by reference into the Registration Statement or the Prospectus or
(B) at a specified date not more than three days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock of
the Company (other than upon exercise of outstanding stock options or upon
conversion of convertible securities outstanding on the date of the most recent
balance sheet included in or incorporated by reference into the Prospectus or
pursuant to the Company's employee stock ownership plan or pursuant to the
Company's stock purchase plans or the Company's employee savings and profit
sharing plan) or any increase in the consolidated long term debt of the Company
and its subsidiaries or any decrease in consolidated net current assets or net
assets as compared with the amounts shown in the most recent balance sheet
included in or incorporated by reference into the Prospectus or, during the
period from the date of the most recent financial statements included in or
incorporated by reference into the Prospectus to a specified date not more than
three days prior
28
to the date of such Terms Agreement, there were any decreases, as compared with
the corresponding period in the preceding year, in consolidated net sales, net
earnings or net earnings per share of the Company and its subsidiaries, except
in all instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv) in
addition to the examination referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in or
incorporated by reference into the Registration Statement and Prospectus and
which are reasonably specified by you, and have found such amounts, percentages
and financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries identified in
such letter.
(i) At each Closing Time, your counsel shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Offered Securities, as contemplated
herein, and related proceedings, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Offered Securities and debt securities or shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise of the Offered Securities, in the case of the issuance of
Offered Securities convertible into Common Stock or exercisable for Common Stock
or debt securities, as the case may be, as herein contemplated, shall be
satisfactory in form and substance to you and your counsel.
(j) In the case of the issuance of shares of Common Stock, Units
containing shares of Common Stock or Offered Securities convertible into or
exercisable for Common Stock, at each Closing Time, you shall have received the
written agreement of each of the persons specified in the applicable Terms
Agreement, if any, to the effect that each such person will not contract to sell
or announce or make any offering, sale or other disposition of any shares of
Common Stock, nor sell or grant any options, rights or warrants with respect to
any shares of Common Stock, in each case during a period of 90 days after the
commencement of the public offering of the Offered Securities, without your
prior written consent.
(k) The Company shall have complied with the provisions of Section 3(a)(v)
hereof.
29
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement and the applicable Terms
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to the applicable Closing Time, and such termination shall
be without liability of any party to any other party except as provided in
Section 4.
SECTION 6. Indemnification. (a) 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 as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement, including any
preliminary prospectus supplement, thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by you), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to
30
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement, including any preliminary prospectus
supplement, thereto); and further provided that this indemnity agreement does
not apply to any loss, liability, claim, damage or expense arising out of any
untrue statement or omission or alleged untrue statement or omission made in a
preliminary prospectus or preliminary prospectus supplement, as the case may be,
but eliminated or remedied in the Prospectus if a copy of the Prospectus
(excluding documents incorporated therein by reference) was not delivered by you
to the person asserting the claim arising from such untrue statement or omission
or such alleged untrue statement or omission, at or prior to the time required
by the 1933 Act.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of the Company's officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement, including any preliminary prospectus
supplement, thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement,
including any preliminary prospectus supplement, thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. In
31
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and you shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
you, as incurred, in such proportions that you are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls you within the
meaning of Section 15 of the 1933 Act shall have the same right to contribution
as you, and each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement and
the applicable Terms Agreement, or
32
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person, or by or on behalf of the Company,
and shall survive delivery of the Offered Securities to the Underwriters.
SECTION 9. Default. If one or more of the Underwriters shall fail at the
-------
applicable Closing Time to purchase the Offered Securities which it or they are
obligated to purchase under the applicable Terms 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, during such 24 hours the Representatives
shall not have completed such arrangements for the purchase of all of the
Defaulted Securities, then:
(a) if the aggregate initial public offering price of the Defaulted
Securities does not exceed 10% of the aggregate initial public offering
price of the Offered Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations under the applicable Terms Agreement (including
this Agreement as incorporated by reference therein) bear to the
underwriting obligations of all such non-defaulting Underwriters; or
(b) if the aggregate initial public offering price of the Defaulted
Securities exceeds 10% of the aggregate initial public offering price of
the Offered Securities to be purchased pursuant to such Terms Agreement,
such Terms Agreement (including this Agreement as incorporated by reference
therein) shall terminate, without any liability on the part of any non-
defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the applicable Terms Agreement or this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Representatives or the Company shall have the right
to postpone the applicable Closing
33
Time for a period not exceeding seven days in order that any required changes in
the Registration Statement, Prospectus or applicable Prospectus Supplement, or
in any other documents or arrangements, may be effected.
SECTION 10. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you as provided in the applicable Terms
Agreement; notices to the Company shall be directed to it at 0000 Xxxx Xxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000; Attention: Treasurer.
SECTION 11. Parties. This Agreement and the applicable Terms Agreement
-------
shall each inure to the benefit of and be binding upon you, the Company and your
and the Company's respective successors. Nothing expressed or mentioned in this
Agreement or the applicable Terms Agreement is intended or shall be construed to
give any person, firm or corporation, other than you, the Company and your and
the Company's respective successors and the controlling persons and officers and
directors referred to in Sections 6, 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the applicable Terms Agreement or any provision
herein or therein contained. This Agreement and the applicable Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of you, the Company and your and the Company's
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. No purchaser of the Offered Securities from you
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. Governing Law and Time. This Agreement and each Terms
----------------------
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
34
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
MOTOROLA, INC.
By ______________________________
Title: _________________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
By:
By ______________________________
Title:
Exhibit A-1
MOTOROLA, INC.
Debt Securities
TERMS AGREEMENT
---------------
_____________, ____
To: Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $___________ aggregate principal amount of its Debt
Securities. Subject to the terms and conditions set forth herein or
incorporated by reference herein, the underwriter(s) named below (the
"Underwriter(s)") hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are to
be issued under an Indenture dated as of ___________, 199_ between the Company
and ________________________________, as Trustee, shall have the following
terms:
Title:
Rank/Subordination:
Date of Maturity:
Interest Rate:
Interest Payment Dates:
Date From Which Interest Accrues:
Public Offering Price:
Purchase Price:
Redemption Provisions:
Conversion Provisions:
A-1-1
Sinking Fund Provisions:
Closing Date, Time and Location:
Manager or Co-Managers:
Current Ratings: Xxxxx'x Investors Services - __;
Standard & Poor's Corporation - __.
All of the provisions contained in the Underwriting Agreement dated as of
______________, ____, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the principal amount of the Offered
Securities set forth opposite its name.
PRINCIPAL
NAME AMOUNT
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-1-2
Exhibit A-2
MOTOROLA, INC.
_______ Shares
Common Stock
($3 Par Value Per Share)
TERMS AGREEMENT
---------------
_____________, 199_
To: Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell ___________ shares of its common stock, $3 par value
per share (the "Common Stock"). Subject to the terms and conditions set forth
herein or incorporated by reference herein, the underwriter(s) named below (the
"Underwriter(s)") hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s) shall have the
following terms:
1. The initial public offering price per share for the Common Stock
shall be $_____________.
2. The purchase price per share for the Common Stock to be paid by
you shall be $__________, being an amount equal to the initial public
offering price set forth above less $__________ per share.
3. Closing Date, Time and Location:
4. Manager or Co-Managers:
5. Names of Persons specified pursuant to Section 5(j):
A-2-1
All of the provisions contained in the Underwriting Agreement dated as of
______________, ____, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the number of shares of Common Stock set
forth opposite its name.
NUMBER OF
NAME SHARES
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-2-2
Exhibit A-3
MOTOROLA, INC.
Warrants
TERMS AGREEMENT
---------------
_____________, ____
To: Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $___________ aggregate principal amount of its
Warrants. Subject to the terms and conditions set forth herein or incorporated
by reference herein, the underwriter(s) named below (the "Underwriter(s)")
hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are to
be issued under a Warrant Agreement dated as of
_____________, ____ between the Company and _______________________ as
Warrant Agent shall have the following terms:
Title of Warrants:
Stated Value per Warrant:
Number of Warrants:
Liquidation Value:
Initial Offering Price to Public:
[$ per Warrant][Formula]
Purchase Price by Underwriters:
[$ per Warrant][Formula]
Commission Payable to Underwriters:
A-3-1
[$ per Warrant]
Exercise Price:
Exercise Provisions:
[The Warrants may be exercised in whole or in part at the option of the
Holder, on or after ________________, at the following [price or formula]
for the purchase of [such principal amount] of:
[Debt Securities] [Common Stock]
[Other exercise provisions:]
[Other terms and conditions:]
Expiration Date:
Date of Board or Committee Resolution Establishing the Terms and Conditions
of the Designated Warrants:
Other Terms:
Closing Date, Time and Location:
Manager or Co-Managers:
[Names of Persons specified pursuant to Section 5(j):]
All of the provisions contained in the Underwriting Agreement dated as of
______________, ____, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the number or Warrants set forth opposite
its name.
A-3-2
NUMBER OF
NAME WARRANTS
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
[Manager]
By:____________________________
Accepted:
Motorola, Inc.
By:____________________________
A-4-1
