IMC GLOBAL INC.
(a Delaware corporation)
Debt Securities, Warrants to Purchase Debt Securities,
Series Preferred Stock, Common Stock,
Warrants to Purchase Common Stock and Currency Warrants
___________________________________________
UNDERWRITING AGREEMENT
____________________________________________
Dated: October 20, 1998
Table of Contents
Page
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SECTION 1. Representations and Warranties 4
(a) Representations and Warranties by the Company 4
(1) Compliance with Registration Requirements 4
(2) Incorporated Documents 5
(3) Independent Accountants 5
(4) Financial Statements 5
(5) No Material Adverse Change in Business 6
(6) Good Standing of the Company 6
(7) Good Standing of Subsidiaries 6
(8) Capitalization 7
(9) Authorization of this Underwriting Agreement and Terms Agreement 7
(10) Authorization of Common Stock 7
(11) Authorization of Series Preferred Stock 7
(12) Authorization of Senior Debt Securities, Subordinated Debt Securities
and/or Convertible Debt Securities 8
(13) Authorization of the Indentures 8
(14) Authorization of Warrants 8
(15) Authorization of Warrant Agreement 9
(16) Authorization of Underlying Securities 9
(17) Descriptions of the Underwritten Securities, Underlying Securities,
Indentures and Warrant Agreement. 10
(18) Absence of Defaults and Conflicts. 10
(19) Absence of Labor Dispute. 11
(20) Absence of Proceedings. 11
(21) Accuracy of Exhibits. 11
(22) Absence of Further Requirements. 11
(23) Possession of Intellectual Property. 11
(24) Possession of Licenses and Permits. 12
(25) Title to Property. 12
(26) Commodity Exchange Act. 12
(27) Investment Company Act. 13
(28) Environmental Laws. 13
(b) Officers' Certificates 13
SECTION 2. Sale and Delivery to Underwriters; Closing 13
(a) Underwritten Securities 13
(b) Option Underwritten Securities 14
(c) Payment 14
(d) Denominations; Registration 15
i
SECTION 3 Covenants of the Company.........................................15
(a) Compliance with Securities Regulations and Commission Requests...15
(b) Filing of Amendments.............................................15
(c) Delivery of Registration Statements..............................15
(d) Delivery of Prospectuses.........................................16
(e) Continued Compliance with Securities Laws........................16
(f) Blue Sky Qualifications..........................................16
(g) Earnings Statement...............................................17
(h) Reservation of Securities........................................17
(i) Rating of Securities.............................................17
(j) DTC..............................................................17
(k) Use of Proceeds..................................................17
(l) Listing..........................................................17
(m) Restriction on Sale of Securities................................17
(n) Reporting Requirements...........................................17
SECTION 4 Payment of Expenses..............................................17
(a) Expenses.........................................................17
(b) Termination of Agreement.........................................18
SECTION 5 Conditions of Underwriters' Obligations..........................18
(a) Effectiveness of Registration Statement..........................18
(b) Opinion of Counsel for Company...................................19
(c) Opinion of Counsel for Underwriters..............................19
(d) Officers' Certificate............................................19
(e) Accountant's Comfort Letter......................................20
(f) Bring-down Comfort Letter........................................20
(g) Ratings..........................................................20
(h) Approval of Listing..............................................21
(i) No Objection.....................................................21
(j) Lock-up Agreements...............................................21
(k) Over-Allotment Option............................................21
(l) Additional Documents.............................................22
(m) Termination of Terms Agreement...................................22
SECTION 6 Indemnification..................................................22
(a) Indemnification of Underwriters..................................22
(b) Indemnification of Company, Directors and Officers...............23
(c) Actions against Parties; Notification............................24
(d) Settlement without Consent if Failure to Reimburse...............24
SECTION 7 Contribution.....................................................24
SECTION 8 Representations, Warranties and Agreements to Survive Delivery...26
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SECTION 9. Termination...............................................................26
(a) Underwriting Agreement....................................................26
(b) Terms Agreement...........................................................26
(c) Liabilities...............................................................27
SECTION 10. Default by One or More of the Underwriters................................27
SECTION 11. Notices...................................................................27
SECTION 12. Parties...................................................................28
SECTION 13. GOVERNING LAW AND TIME....................................................28
SECTION 14. Effect of Headings........................................................28
iii
IMC GLOBAL INC.
(a Delaware corporation)
Debt Securities, Warrants to Purchase Debt Securities,
Series Preferred Stock, Common Stock,
Warrants to Purchase Common Stock and Currency Warrants
UNDERWRITING AGREEMENT
October 20, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
IMC Global Inc., a Delaware corporation (the "Company"), proposes to
issue and sell up to $700,000,000 aggregate initial public offering price of its
(i) unsecured debt securities, which may be either senior (the "Senior Debt
Securities") or subordinated (the "Subordinated Debt Securities"), and which may
be convertible into shares of common stock, par value $1.00 per share ("Common
Stock"), of the Company (the "Convertible Debt Securities," and, together with
the Senior Debt Securities and the Subordinated Debt Securities, the "Debt
Securities"), (ii) warrants to purchase Debt Securities (the "Debt Warrants"),
(iii) shares of series preferred stock (the "Series Preferred Stock"), which may
be convertible into shares of Common Stock, (iv) shares of Common Stock, (v)
warrants to purchase shares of Common Stock (the "Stock Warrants") and (vi)
warrants to receive from the Company the cash value in U.S. dollars of the right
to purchase ("Currency Call Warrants") or to sell ("Currency Put Warrants," and,
together with the Currency Call Warrants, the "Currency Warrants") such foreign
currency or currency units as shall be designated by the Company at the time of
the offering, or any combination thereof, from time to time, in or pursuant to
one or more offerings on terms to be determined at the time of sale.
The Series Preferred Stock will be issued in one or more series and
each series of Series Preferred Stock may vary, as applicable, as to the title,
specific number of shares, rank, stated value, liquidation preference, dividend
rate or rates (or method of calculation), dividend payment dates, redemption
provisions, sinking fund requirements, conversion provisions (and terms of the
related Underlying Securities (as defined below)) and any other variable terms
as set forth in the applicable certificate of designations (each, the
"Certificate of Designations") relating to such
series of Series Preferred Stock.
The Senior Debt Securities will be issued in one or more series as senior
indebtedness under an indenture, dated as of August 1, 1998 (the "Senior
Indenture"), between the Company and The Bank of New York, as trustee (the
"Senior Trustee"). The Subordinated Debt Securities will be issued in one or
more series as subordinated indebtedness under an indenture (the "Subordinated
Indenture", and collectively with the Senior Indenture, the "Indentures", and
each, an "Indenture"), between the Company and a trustee to be named prior to
the offering of any Subordinated Debt Securities, as trustee (the "Subordinated
Trustee", and collectively with the Senior Trustee, the "Trustees", and each, a
"Trustee"). Each series of Debt Securities may vary, as applicable, as to title,
aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities) and any other variable terms established by or pursuant
to the applicable Indenture.
Each issue of Stock Warrants, Debt Warrants and Currency Warrants
(collectively, the "Warrants") will be issued pursuant to a separate warrant
agreement (each, a "Warrant Agreement") between the Company and the warrant
agent identified therein (each, a "Warrant Agent"). The Warrants may vary, as
applicable, as to, among other terms, title, type, specific number, exercise
dates or periods, exercise price(s), expiration date(s) and terms of the related
Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Stock Warrants,
Series Preferred Stock, Senior Debt Securities, Subordinated Debt Securities
Convertible Debt Securities, Debt Warrants or Currency Warrants, or any
combination thereof, initially issuable by the Company and "Underlying
Securities" shall mean the Common Stock, Senior Debt Securities, Subordinated
Debt Securities or Convertible Debt Securities issuable upon exercise of the
Warrants, as applicable, or upon conversion of the Series Preferred Stock or
Convertible Debt Securities, as applicable.
Whenever the Company determines to make an offering of Securities
through Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), or through an underwriting syndicate managed by Xxxxxxx
Xxxxx, the Company will enter into an agreement (each, a "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, Xxxxxxx Xxxxx and such other underwriters, if any, selected by
Xxxxxxx Xxxxx (the "Underwriters", which term shall include Xxxxxxx Xxxxx,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The
Terms Agreement relating to the offering of Securities shall specify the number
or aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in Section
10 hereof) and the name of any Underwriter other xxxx Xxxxxxx Xxxxx acting as
co-manager in connection with such offering, the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering price,
the price at which the Initial
2
Underwritten Securities are to be purchased by the Underwriters, the form, time,
date and place of delivery and payment of the Initial Underwritten Securities
and any other material variable terms of the Initial Underwritten Securities, as
well as the material variable terms of any related Underlying Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the number or aggregate
principal amount, as the case may be, of Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the Company
and Xxxxxxx Xxxxx, acting for itself and, if applicable, as representative of
any other Underwriters. Each offering of Underwritten Securities through Xxxxxxx
Xxxxx as sole Underwriter or through an underwriting syndicate managed by
Xxxxxxx Xxxxx will be governed by this Underwriting Agreement, as supplemented
by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-41713 and 333-63503)
for the registration of the Securities and the Underlying Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statements have been declared effective by the Commission and each
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the Company has filed such post-effective
amendments thereto as may be required prior to the execution of the applicable
Terms Agreement and each such post-effective amendment has been declared
effective by the Commission. Such registration statements (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), are collectively referred to herein as the "Registration
Statement"; and the final prospectus and the final prospectus supplement
relating to the offering of the Underwritten Securities, in the form first
furnished to the Underwriters by the Company for use in connection with the
offering of the Underwritten Securities, are collectively referred to herein as
the "Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to "Registration Statement" shall also be deemed to include the
Rule 462 Registration Statement; and provided, further, that if the Company
elects to rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A
3
"preliminary prospectus" shall be deemed to refer to any prospectus used before
the Registration Statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations and was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or preliminary
prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and
warrants to Xxxxxxx Xxxxx, as of the date hereof, and to each Underwriter named
in the applicable Terms Agreement, as of the date thereof, as of the Closing
Time (as defined below) and, if applicable, as of each Date of Delivery (as
defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement (or such Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition,
the Senior Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the
Registration Statement (including any Rule 462(b) Registration Statement)
and any amendments thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939 Act Regulations") and 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
not misleading. At the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, neither the Prospectus nor any amendments
and supplements thereto included or will include an untrue statement of a
material fact or omitted or will 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. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus,
when they became effective or 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").
(3) Independent Accountants. The accountants who certified the financial
statements and any supporting schedules of the Company and its
subsidiaries, of Xxxxxx Chemical Group, Inc. and its subsidiaries
("Xxxxxx"), of Xxxxxx Chemical Australia Pty Ltd. & its controlled entities
("Penrice") and of Freeport-McMoRan Inc. ("FTX") included in the
Registration Statement and the Prospectus are independent public
accountants with respect to the Company and its subsidiaries as required by
the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity
5
included therein, present fairly the financial position of the Company and
its consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of operations, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries, or such
other entity, as the case may be, for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved, except as indicated therein or in the notes thereto and,
except that data with respect to unaudited interim periods do not contain
footnote disclosure and reflect adjustments which the management of the
Company considers necessary to present fairly in all material respects the
financial information for such periods. The financial statements, together
with the related schedules and notes, of Xxxxxx included in the
Registration Statement and the Prospectus present fairly in all material
respects the financial position of Xxxxxx and its consolidated subsidiaries
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of Xxxxxx and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the periods
involved, except as indicated therein or in the notes thereto and, except
that data with respect to unaudited interim periods do not contain footnote
disclosure and reflect adjustments which the management of the Company
considers necessary to present fairly in all material respects the
financial information for such periods. The financial statements, together
with the related schedules and notes, of Penrice included in the
Registration Statement and the Prospectus present fairly the financial
position of Penrice and its controlled entities at the dates indicated and
the statement of operations, stockholders' equity and cash flows of Penrice
and its controlled entities for the periods specified; said financial
statements have been prepared in conformity with Australian GAAP applied on
a consistent basis throughout the periods involved, except as indicated
therein or in the notes thereto and, except that data with respect to
unaudited interim periods do not contain footnote disclosure and reflect
adjustments which the management of the Company considers necessary to
present fairly in all material respects the financial information for such
periods. The financial statements, together with the related schedules and
notes, of FTX included in the Registration Statement and the Prospectus
present fairly in all material respects the financial position of FTX at
the date indicated and the statement of operations, stockholders' equity
and cash flows of FTX for the periods specified; said financial statements
have been prepared in conformity with GAAP applied on a consistent basis
throughout the periods involved, except as indicated therein or in the
notes thereto and, except that data with respect to unaudited interim
periods do not contain footnote disclosure and reflect adjustments which
the management of the Company considers necessary to present fairly in all
material respects the financial information for such periods. The
supporting schedules, if any, included in the Registration Statement and
the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration
Statement and the Prospectus. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related notes
6
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein or contemplated thereby, (A)
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those arising in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for regular
quarterly dividends on the Company's outstanding common stock, there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(6) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Underwriting Agreement and the applicable Terms Agreement. The Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) (each, a "Subsidiary" and, collectively,
the "Subsidiaries") has been duly organized and is validly existing as a
corporation or partnership, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation or organization, as the case
maybe, has corporate or partnership, as the case may be, power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation or partnership, as the case may be, to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus or in
Schedule A hereto, all of the issued and outstanding capital stock of each
corporate Subsidiary has been duly authorized and validly issued, is
7
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, and all of the partnership interests of each
partnership Subsidiary have been duly authorized and validly issued and are
owned by the Company, directly or through subsidiaries, in each case free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock or
partnership interests, as the case may be, of any Subsidiary was issued in
violation of preemptive or other similar rights of any securityholder of
such Subsidiary. The only Subsidiaries of the Company are listed on
Schedule A hereto.
(8) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under such
section (except for subsequent issuances thereof, if any, contemplated
under this Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). Such shares of outstanding capital stock of the Company have
been duly authorized and validly issued by the Company and are fully paid
and non-assessable, and none of the outstanding shares of capital stock was
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms Agreement.
This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company.
(10) Authorization of Common Stock. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Common Stock,
such Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and delivered by the Company
pursuant to this Underwriting Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of the
Company. No holder of such Underwritten Securities is or will be subject
to personal liability by reason of being such a holder.
(11) Authorization of Series Preferred Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Series Preferred Stock, such Underwritten Securities have been, or as of
the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Securities, when issued and
delivered by the Company pursuant to this Underwriting Agreement and such
Terms Agreement against payment of the consideration therefor specified in
such Terms Agreement, will be validly issued, fully paid and non-assessable
and will not be subject to preemptive or other similar rights of any
securityholder of the Company. No
8
holder of such Underwritten Securities is or will be subject to personal
liability by reason of being such a holder. The applicable Certificate of
Designations will be in full force and effect prior to the Closing Time.
(12) Authorization of Senior Debt Securities, Subordinated Debt
Securities and/or Convertible Debt Securities. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Senior Debt Securities, Subordinated Debt Securities and/or Convertible
Debt Securities, such Underwritten Securities have been, or as of the date
of such Terms Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and such Terms
Agreement. Such Underwritten Securities, when issued and authenticated in
the manner provided for in the applicable Indenture and delivered against
payment of the consideration therefor specified in such Terms Agreement,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency 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 by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Underwritten Securities will be in the
form contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(13) Authorization of the Indentures. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities, Subordinated Debt Securities, Convertible Debt Securities
and/or Debt Warrants, each applicable Indenture has been, or prior to the
issuance of the Debt Securities thereunder will have been, duly authorized,
executed and delivered by the Company and, upon such authorization,
execution and delivery, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(14) Authorization of Warrants. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Warrants, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and
9
authenticated in the manner provided for in the applicable Warrant
Agreement and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and binding
obligations of the Company, entitled to the benefits provided by such
Warrant Agreement and enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law).
(15) Authorization of Warrant Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Warrants, each applicable Warrant Agreement has been, or prior to the
issuance of such Underwritten Securities will have been, duly authorized,
executed and delivered by the Company and, upon such authorization,
execution and delivery, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(16) Authorization of Underlying Securities. If the Underlying
Securities related to the Underwritten Securities being sold pursuant to
the applicable Terms Agreement include Common Stock, such Underlying
Securities have been, or as of the date of such Terms Agreement will have
been, duly authorized and reserved for issuance by the Company upon
exercise of the Stock Warrants or upon conversion of the related Series
Preferred Stock or Convertible Debt Securities, as applicable. If the
Underlying Securities include Common Stock, such Underlying Securities,
when issued upon such exercise or conversion, as applicable, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company.
No holder of such Common Stock is or will be subject to personal liability
by reason of being such a holder. If the Underlying Securities related to
the Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Senior Debt Securities, Subordinated Debt Securities
and/or Convertible Debt Securities, such Underlying Securities have been,
or as of the date of such Terms Agreement will have been, duly authorized
for issuance by the Company upon the exercise of the Debt Warrants. Such
Underlying Securities, when issued and authenticated in the manner provided
for in the applicable Indenture and delivered in accordance with the terms
of the Debt Warrants, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further
10
as enforcement thereof may be limited by requirements that a claim with
respect to any Debt Securities payable in a foreign or composite currency
(or a foreign or composite currency 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 by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(17) Descriptions of the Underwritten Securities, Underlying Securities,
Indentures and Warrant Agreement. The Underwritten Securities being sold
pursuant to the applicable Terms Agreement and each applicable Indenture
and Warrant Agreement, as of each Representation Date, and any Underlying
Securities, when issued and delivered in accordance with the terms of the
related Underwritten Securities, will conform in all material respects to
the statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
(18) Absence of Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws or partnership
agreement, as the case may be, or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults as are disclosed in the Prospectus or that would
not result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement, the applicable Terms Agreement
and each applicable Indenture, Warrant Agreement and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Company in connection with the transactions contemplated hereby or thereby
or in the Registration Statement and the Prospectus and the consummation of
the transactions contemplated herein, therein and in the Registration
Statement and the Prospectus (including the issuance and sale of the
Underwritten Securities, the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of Proceeds"
and the issuance of any Underlying Securities) and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Agreements and
Instruments (except for such conflicts, breaches, defaults or Repayment
Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws or partnership agreement, as the
case may be, of the Company or any of its subsidiaries or, to the best of
the Company's knowledge, any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having
11
jurisdiction over the Company or any of its subsidiaries or any of their
assets, properties or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness of the Company or any of its subsidiaries
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(19) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, would reasonably be expected to result in a Material
Adverse Effect.
(20) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
would, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect, or which would, individually or in the
aggregate, reasonably be expected to materially and adversely affect the
properties and assets of the Company and its subsidiaries considered as one
enterprise or the consummation of the transactions contemplated under the
Prospectus, this Underwriting Agreement, the applicable Terms Agreement or
any applicable Indenture or Warrant Agreement or the performance by the
Company of its obligations hereunder and thereunder. The aggregate of all
pending legal or governmental proceedings to which the Company or any of
its subsidiaries is a party or of which any of their respective property or
assets is the subject which are not described in the Registration Statement
and the Prospectus, including ordinary routine litigation incidental to the
business, would not reasonably be expected to result in a Material Adverse
Effect.
(21) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(22) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of its
obligations hereunder in connection with the offering, issuance or sale of
the Underwritten Securities and any related Underlying Securities or the
consummation of the transactions contemplated under the Prospectus, this
Underwriting Agreement, such
12
Terms Agreement or any applicable Indenture or Warrant Agreement.
(23) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict or invalidity or inadequacy, singly or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect.
(24) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the
failure to so possess would not have a Material Adverse Effect. The Company
and its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except as disclosed in the Prospectus or where
the failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid and in
full force and effect, except as disclosed in the Prospectus or where the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, would reasonably be expected to result in a Material Adverse
Effect.
(25) Title to Property. The Company and its subsidiaries have good
and marketable title to all material real property owned by the Company and
its subsidiaries and good title to all material personal property owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind,
except such as (A) are described in the Registration Statement and the
Prospectus or (B) would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. All of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any of its subsidiaries has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of
13
the Company or such subsidiary of the continued possession of the leased or
subleased premises under any such lease or sublease, except such as would
not, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(26) Commodity Exchange Act. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Debt Securities or
if any related Underlying Securities include Debt Securities, as the case
may be, such Debt Securities, upon issuance, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the
Commodity Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
(27) Investment Company Act. The Company is not, and upon the
issuance and sale of the Underwritten Securities as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(28) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and
14
warranty by the Company to each Underwriter as to the matters covered thereby on
the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------------------
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the number or aggregate principal amount, as the case may be, of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security, less
an amount equal to any dividends or distributions declared by the Company and
paid or payable on the Initial Underwritten Securities but not payable on the
Option Underwritten Securities. Such option, if granted, will expire 30 days
after the date of such Terms Agreement, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
Underwritten Securities upon notice by Xxxxxxx Xxxxx to the Company setting
forth the number or aggregate principal amount, as the case may be, of Option
Underwritten Securities as to which the several Underwriters are then exercising
the option and the time, date and place of payment and delivery for such Option
Underwritten Securities. Any such time and date of payment and delivery (each, a
"Date of Delivery") shall be determined by Xxxxxxx Xxxxx, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, unless otherwise agreed upon by Xxxxxxx Xxxxx
and the Company. If the option is exercised as to all or any portion of the
Option Underwritten Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total number or aggregate
principal amount, as the case may be, of Option Underwritten Securities then
being purchased which the number or aggregate principal amount, as the case may
be, of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities, subject to such adjustments as Xxxxxxx Xxxxx in its
discretion shall make to eliminate any sales or purchases of a fractional number
or aggregate principal amount, as the case may be, of Option Underwritten
Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Brown & Wood
LLP, One World Trade Center, New York, New York 10048, or at such other place as
shall be agreed upon by Xxxxxxx Xxxxx and the Company, at 9:00 A.M. (Eastern
time) on the third business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof), or
such other time not later than ten business days after such date as shall be
agreed upon by Xxxxxxx Xxxxx and the Company (such time and date of payment and
delivery being herein called
15
"Closing Time"). In addition, in the event that the Underwriters have exercised
their option, if any, to purchase any or all of the Option Underwritten
Securities, payment of the purchase price for, and delivery of such Option
Underwritten Securities, shall be made at the above-mentioned offices of Brown &
Wood llp, or at such other place as shall be agreed upon by Xxxxxxx Xxxxx and
the Company, on the relevant Date of Delivery as specified in the notice from
Xxxxxxx Xxxxx to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Xxxxxxx Xxxxx for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized Xxxxxxx Xxxxx, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. Xxxxxxx Xxxxx,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as Xxxxxxx Xxxxx may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by Xxxxxxx Xxxxx in The City of New York
not later than 10:00 A.M. (Eastern time) on the last business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
16
SECTION 3. Covenants of the Company. The Company covenants with Xxxxxxx
Xxxxx and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify Xxxxxxx Xxxxx immediately, and confirm the notice
in writing, of (i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will, during the period when the
Prospectus is required to be delivered under the 1933 Act, give Xxxxxxx Xxxxx
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act Regulations),
any Term Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
xxxxxxx Xxxxxxx Xxxxx with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which Xxxxxxx Xxxxx or counsel for the Underwriters
shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to Xxxxxxx Xxxxx and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to Xxxxxxx Xxxxx, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by
17
the 1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus as such Underwriter
may reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement 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 not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
Xxxxxxx Xxxxx may designate and will maintain such qualifications in effect for
a period of not less than one year from the date of the applicable Terms
Agreement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Underwritten Securities or any related Underlying Securities 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 a period of not less than one year from the date of such Terms
Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders an earnings
18
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement
specifies that any related Underlying Securities include Common Stock, the
Company will reserve and keep available at all times, free of preemptive or
other similar rights, a sufficient number of shares of Common Stock for the
purpose of enabling the Company to satisfy any obligations to issue such
Underlying Securities upon exercise of the related Warrants, as applicable, or
upon conversion of the Series Preferred Stock or Convertible Debt Securities, as
applicable.
(i) Rating of Securities. Unless the Underwritten Securities being sold
pursuant to the applicable Terms Agreement related solely to Common Stock or
Stock Warrants, the Company shall take all reasonable action necessary to enable
Standard & Poor's Ratings Service, a division of The XxXxxx-Xxxx Companies, Inc.
("S&P"), and Xxxxx'x Investors Service, Inc. ("Xxxxx'x") to provide their
respective credit ratings of the Underwritten Securities.
(j) DTC. The Company will cooperate with the Underwriters and use its
reasonable best efforts to permit Underwritten Securities and any related
Underlying Securities, as applicable, to be eligible for clearance and
settlement through the facilities of The Depository Trust Company (the "DTC").
(k) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(l) Listing. The Company will use its best efforts to effect the listing
of the Underwritten Securities and any related Underlying Securities, prior to
the Closing Time, on any national securities exchange or quotation system if and
as specified in the applicable Terms Agreement.
(m) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of Xxxxxxx
Xxxxx, directly or indirectly, issue, sell, offer or contract to sell, grant any
option for the sale of, or otherwise dispose of, the securities specified in
such Terms Agreement.
(n) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
19
SECTION 4. Payment of Expenses.
-------------------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and filing
of the Registration Statement (including financial statements and any schedules
or exhibits and any documents incorporated therein by reference) as originally
filed and of each amendment thereto, (ii) the preparation, printing and delivery
to the Underwriters of this Underwriting Agreement, any Terms Agreement, any
agreement among Underwriters, the Indentures, any Warrant Agreement and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Underwritten Securities or any related
Underlying Securities, (iii) the preparation, issuance and delivery of the
Underwritten Securities and any related Underlying Securities, any certificates
for the Underwritten Securities or such Underlying Securities, as applicable, to
the Underwriters, including any transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Underwritten Securities to
the Underwriters and any charges of DTC in connection therewith, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors or
agents (including transfer agents and registrars), as well as the fees and
disbursements of the Trustees and any Warrant Agent, and their respective
counsel, (v) the qualification of the Underwritten Securities and any related
Underlying Securities under state securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
any supplement thereto and any Legal Investment Survey, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, and the Prospectus and any amendments or supplements thereto, (vii) the
fees charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities and any related Underlying Securities, if
applicable, (viii) the fees and expenses incurred with respect to the listing of
the Underwritten Securities and any related Underlying Securities, if
applicable, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Underwritten Securities and any related Underlying
Securities, (x) the fees and expenses of any Underwriter acting in the capacity
of a "qualified independent underwriter" (as defined in subparagraph (b)(l5) of
Rule 2720 of the Conduct Rules of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Xxxxxxx Xxxxx in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
20
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4)
or (5), as applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434
of the 1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinions of Counsel for Company. At Closing Time, Xxxxxxx Xxxxx shall
have received (i) the favorable opinion, dated as of Closing Time, of Xxxxxxxx &
Xxxxx (a partnership including professional corporations), special counsel for
the Company, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in Exhibit B hereto and to
such further effect as counsel to the Underwriters may reasonably request and
(ii) the favorable opinion, dated as of Closing Time, of the General Counsel of
the Company, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in Exhibit C hereto and to
such further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, Xxxxxxx Xxxxx
shall have received the favorable opinion, dated as of Closing Time, of Brown &
Wood llp, counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, with respect to the
matters set forth in (1) (solely as to existence and good standing of the
Company), (2), (3) to (10), as applicable (it being understood that any opinion
required with respect to the Underwritten Securities or Underlying Securities,
as the case may be, not being subject to preemptive or other similar rights of
the securityholders of the Company shall be limited to such rights arising by
operation of law or under the charter or by-laws of the Company), (11), (12)
(solely as to the information in the Prospectus under "Description of Debt
Securities," "Description of Debt Warrants," "Description of Series Preferred
Stock and Common Stock," "Description of Stock Warrants" and "Description of
Currency Warrants" or any caption
21
purporting to describe any such Securities), (16), (17), (20) and the
penultimate paragraph of Exhibit B hereto. In giving such opinion, such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to Xxxxxxx Xxxxx. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been, since
the date of the applicable Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
Xxxxxxx Xxxxx shall have received a certificate of the President or a Vice
President of the Company and of the chief financial officer or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (iii) the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted, are pending or, to the
best of such officers' knowledge, are threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, Xxxxxxx Xxxxx shall have received from Ernst & Young
LLP, PricewaterhouseCoopers LLP, Xxxxxx Xxxxxxxx, Chartered Accountants and
Xxxxxx Xxxxxxxx LLP letters, each dated such date, in form and substance
reasonably satisfactory to Xxxxxxx Xxxxx, together with signed or reproduced
copies of such letter for each of the other Underwriters, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, Xxxxxxx Xxxxx shall have
received from Ernst & Young LLP, PricewaterhouseCoopers LLP, Xxxxxx Xxxxxxxx,
Chartered Accountants and Xxxxxx Xxxxxxxx LLP letters, each dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, unless the
Underwritten Securities being sold pursuant to the applicable Terms Agreement
relate solely to Common Stock or Stock Warrants, the Underwritten Securities
shall have the ratings accorded by any "nationally recognized statistical rating
organization", as defined by the Commission for purposes of Rule 436(g)(2) of
the 1933 Act Regulations, if and as specified in the applicable Terms Agreement,
and the Company shall have delivered to Xxxxxxx Xxxxx a letter, dated as of
22
such date, from each such rating organization, or other evidence satisfactory to
Xxxxxxx Xxxxx, confirming that the Underwritten Securities have such ratings.
Since the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to the
Underwritten Securities or any of the Company's other securities by any such
rating organization, and no such rating organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Underwritten Securities or any of the Company's
other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities shall
have been approved for listing, subject only to official notice of issuance, if
and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of Underwritten
Securities has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement, Xxxxxxx
Xxxxx shall have received, in form and substance satisfactory to it, each lock-
up agreement, if any, specified in such Terms Agreement as being required to be
delivered by the persons listed therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted an
over-allotment option by the Company in the applicable Terms Agreement and the
Underwriters exercise their option to purchase all or any portion of the Option
Underwritten Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the Company
or any of its subsidiaries hereunder shall be true and correct as of each Date
of Delivery, and, at the relevant Date of Delivery, Xxxxxxx Xxxxx shall have
received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and the chief financial officer or chief
accounting officer of the Company, confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof remains true
and correct as of such Date of Delivery.
(2) The favorable opinion of (i) Xxxxxxxx & Xxxxx (a partnership
including professional corporations), special counsel for the Company, in
form and substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten Securities
and otherwise to the same effect as the opinion required by Section 5(b)(i)
hereof, and (ii) the General Counsel of the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and otherwise to
the same effect as the opinion required by Section 5(b)(ii) hereof.
(3) The favorable opinion of Xxxxx & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
23
(4) Letters from Ernst & Young LLP, PricewaterhouseCoopers LLP,
Xxxxxx Xxxxxxxx, Chartered Accountants and Xxxxxx Xxxxxxxx LLP, in form and
substance reasonably satisfactory to Xxxxxxx Xxxxx and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to Xxxxxxx Xxxxx pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph shall
be a date not more than three business days prior to such Date of Delivery.
(5) Since the time of execution of such Terms Agreement, there shall
not have occurred a downgrading in, or withdrawal of, the rating assigned
to the Underwritten Securities or any of the Company's other securities by
any such rating organization, and no such rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Underwritten Securities or any of
the Company's other securities.
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, 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 Underwritten Securities as herein contemplated shall be reasonably
satisfactory in form and substance to Xxxxxxx Xxxxx and counsel for the
Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by Xxxxxxx Xxxxx by notice to the Company at any
time at or prior to the Closing Time (or such Date of Delivery, as applicable),
and such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. 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 or Section 20 of
the 1934 Act as follows:
(1) 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), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
24
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 included in any preliminary prospectus or the Prospectus (or
any amendment or 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;
(2) 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 any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), 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
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall 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 Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) and provided, further, that as to any preliminary prospectus this
indemnity agreement shall not inure to the benefit of any Underwriter or any
person controlling that Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Underwritten Securities to any
person by that Underwriter if that Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person and
the untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact in such preliminary prospectus was
corrected in said amended or supplemented Prospectus and the delivery thereof
was required by law and would have constituted a complete defense to the claim
of that person, unless such failure resulted from non-compliance by the Company
with Section 3(a) or (b). For purposes of the second proviso to the immediately
preceding sentence, the term Prospectus shall not be deemed to include the
documents incorporated by reference therein, and no Underwriter shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in a preliminary prospectus or supplement thereto or
the Prospectus to any person. The foregoing indemnity agreement is in addition
to any liability which the Company may otherwise have to any Underwriter or to
any controlling person of that Underwriter.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally
25
agrees to indemnify and hold harmless the Company, its directors, each
of its 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 or
Section 20 of the 1934 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), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. 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 hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. 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. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such
26
settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and
the Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party 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 or alleged untrue
statement or omission or alleged omission.
27
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, 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 or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or any of its subsidiaries submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by Xxxxxxx Xxxxx upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. Xxxxxxx Xxxxx may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or
28
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the reasonable judgment of Xxxxxxx Xxxxx, impracticable to market the
Underwritten Securities or to enforce contracts for the sale of the Underwritten
Securities, or (iii) trading in any securities of the Company has been suspended
or materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the NASDAQ National Market System has been suspended or materially limited
(other than in accordance with New York Stock Exchange Rules 80A and 80B or any
similar rules of the American Stock Exchange or the NASDAQ National Market
System regarding limitations on trading during significant market declines and
extraordinary market volatility), or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or, if the Underwritten Securities or any
related Underlying Securities include Debt Securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement (or, with
respect to the Underwriters' exercise of any
29
applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of
the Underwriters to purchase, and the Company to sell, such Option
Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either Xxxxxxx Xxxxx or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
30
SECTION 11. 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 Xxxxxxx Xxxxx at Sears Tower Building, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, attention of Xxxxx Xxxxxxxx; and notices to the
Company shall be directed to it at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, attention of the Corporate Secretary.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
Xxxxxxx Xxxxx and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between Xxxxxxx Xxxxx and the Company in accordance with its terms.
Very truly yours,
IMC GLOBAL INC.
By: /s/ X. Xxxx Xxxx, Xx.
____________________________________
Name: X. Xxxx Xxxx, Xx.
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx Xxxxxxxx
_____________________________
Authorized Signatory
32
Exhibit A
IMC GLOBAL INC.
(a Delaware Corporation)
Debt Securities, Warrants to Purchase Debt Securities,
Series Preferred Stock, Common Stock
Warrants to Purchase Common Stock and Currency Warrants
TERMS AGREEMENT
---------------
October __, 1998
To: IMC Global Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
We understand that IMC Global Inc., a Delaware corporation (the
"Company"), proposes to issue and sell [$ aggregate principal amount
of its [senior] [subordinated] [convertible] debt securities (the "Debt
Securities")] [ warrants (the "Debt Warrants") to purchase $
aggregate principal amount of [senior] [subordinated] [convertible] debt
securities]] [ shares of its series preferred stock (the "Series
Preferred Stock")] [ shares of its common stock, par value $1.00 per
share (the "Common Stock")] [ warrants (the "Stock Warrants") to purchase
Common Stock] [ warrants (the "Currency Warrants") to receive
from the Company the cash value in U.S. dollars of the right to purchase
("Currency Call Warrants") or to sell ("Currency Put Warrants") such foreign
currency or currency units as shall be designated by the Company at the time of
the offering] ([such securities also being hereinafter referred to as] the
"[Initial] Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase [, severally and not jointly,] the [[number]
[principal] [amount] of] Underwritten Securities [opposite their names set forth
below] at the purchase price set forth below [, and a proportionate share of
Option Underwritten Securities set forth below, to the extent any are
purchased].
A-1
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
--------------------------------------------------------------------------------
________________
Total [$]
===============
The Underwritten Securities shall have the following terms:
[Common Stock]
--------------
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Series Preferred Stock]
------------------------
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
A-2
[Debt Securities]
----------------
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: %
of the principal amount, plus accrued interest [amortized original issue
discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
A-3
[Stock] [Debt] [Currency] Warrants
----------------------------------
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Debt Securities]: [Yes] [No]
Number of [Stock] [Debt] [Currency] Warrants issued with each [share of
Common Stock] [$__________ principal amount of Debt Securities]:
Date(s) from which or period(s) during which [Stock] [Debt] [Currency] Warrants
are exercisable:
Date(s) on which [Stock] [Debt] [Currency] Warrants expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
[Title of Underlying Securities:]
[[Number of shares] [Principal amount] purchasable upon exercise of one [Stock]
[Debt] Warrant:]
[Terms of Underlying Securities:]
[Currency Warrants:
Currency Call Warrants: [Yes] [No]
Currency Put Warrants: [Yes] [No]
Foreign Currency or Currency Unit:]
Other terms and conditions:
Closing date and location:
All of the provisions contained in the Company's Underwriting Agreement,
dated October 20, 1998 (the "Underwriting Agreement"), are hereby incorporated
by reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. Unless otherwise specified herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed wholly in such State.
A-4
If the foregoing is in accordance with your understanding of the agreement
among the Underwriters and the Company, please sign and return to the
undersigned a counterpart hereof, whereupon this instrument, along with all
counterparts and together with the Underwriting Agreement, shall be a binding
agreement among the Underwriters named herein and the Company in accordance with
its terms and the terms of the Underwriting Agreement.
Very truly yours,
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: _________________________
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
IMC GLOBAL INC.
By: _________________________
Name:
Title:
A-5
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(1) The Company is a corporation existing and in good standing under the
General Corporation Law of the State of Delaware. The Company is qualified to
do business and is in good standing in those states listed on Exhibit A attached
hereto, which we have been informed by the Company are the only states in which
the Company is qualified to do business as a foreign corporation.
(2) The Company has the corporate power to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) The Underwriting Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
(4) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Stock --] The Underwritten Securities
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities, when issued and delivered by the Company pursuant to the
Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company arising by operation
of law or under the charter or by-laws of the Company or, to the best of our
knowledge, under any agreement or instrument to which the Company may be bound.
No holder of the Underwritten Securities is or will be subject to personal
liability by reason of being such a holder. The form of certificate used to
evidence the Underwritten Securities is in due and proper form and complies with
the applicable statutory requirements, with any applicable requirements of the
charter or by-laws of the Company and with the requirements of the New York
Stock Exchange.
(5) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Series Preferred Stock --] The Underwritten
Securities have been duly authorized by the Company for issuance and sale
pursuant to the Underwriting Agreement and the applicable Terms Agreement. The
Underwritten Securities, when issued and delivered by the Company pursuant to
the Underwriting Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company arising by operation
of law or under the charter or by-laws of the Company or, to the best of our
knowledge, under any agreement or instrument to which the Company may be bound.
No holder of the Underwritten Securities is or will be subject to
B-1
personal liability by reason of being such a holder. The form of certificate
used to evidence the Series Preferred Stock is in due and proper form and
complies with the applicable statutory requirements, with any applicable
requirements of the charter or by-laws of the Company and with the requirements
of the New York Stock Exchange.
(6) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities, Subordinated Debt
Securities and/or Convertible Debt Securities --] The Underwritten Securities
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any Debt Securities payable in a foreign or corporate
currency (or a foreign or composite currency 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 by governmental authority to limit,
delay or prohibit the making of payments outside the United States. The
Underwritten Securities are in the form contemplated by, and each registered
holder thereof is entitled to the benefits of, the applicable Indenture.
(7) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities, Subordinated Debt
Securities, Convertible Debt Securities and/or Debt Warrants--] The [Each]
applicable Indenture has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery thereof by the
applicable Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(8) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants --] The Underwritten Securities
have been duly authorized by the Company for issuance and sale pursuant to the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities, when issued and authenticated in the manner provided for in the
applicable Warrant Agreement and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute valid and binding
obligations of the Company, entitled to the benefits provided by such Warrant
Agreement and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
B-2
of creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(9) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants --] The [Each] applicable Warrant
Agreement has been duly authorized, executed and delivered by the Company and
(assuming due authorization, execution and delivery thereof by the applicable
Warrant Agent) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(10) [Include if the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include Common
Stock --] The Underlying Securities have been duly authorized and reserved for
issuance by the Company [upon exercise of the Stock Warrants] [upon conversion
of the related [Series Preferred Stock] [Convertible Debt Securities]. The
Underlying Securities, when issued upon such [exercise] [conversion], will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company arising
by operation of law or under the charter or by-laws of the Company or, to the
best of our knowledge, under any agreement or instrument to which the Company
may be bound. No holder of the Underlying Securities is or will be subject to
personal liability by reason of being such a holder. [Include if the Underlying
Securities related to the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities, Subordinated Debt
Securities and/or Convertible Debt Securities --] The Underlying Securities
have been duly authorized for issuance by the Company upon exercise of the Debt
Warrants. The Underlying Securities, when issued and authenticated in the
manner provided for in the applicable Indenture and delivered in accordance with
the terms of the Debt Warrants, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any Debt Securities payable in a foreign or composite
currency (or a foreign or composite currency 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 by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
(11) The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and the [each] applicable [Indenture] [Warrant Agreement] conform, and
any Underlying Securities, when issued and delivered in accordance with the
terms of the related Underwritten Securities, will conform, in all material
respects to the statements relating thereto contained in the Prospectus and are
in substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
B-3
(12) The information in the Prospectus under "Description of Debt Securities,"
"Description of Debt Warrants," "Description of Series Preferred Stock and
Common Stock," "Description of Stock Warrants" and "Description of Currency
Warrants" or any caption purporting to describe any such Underwritten Securities
and under "Certain Federal Tax Considerations" and in the Registration Statement
under Item 15, to the extent that it constitutes matters of law, summaries of
laws, governmental rules, regulations, documents (including the charter and by-
laws of the Company, the Underwritten Securities, the applicable Indenture or
Warrant Agreement and the applicable Terms Agreement), or legal conclusions, has
been reviewed by us and in our opinion is correct in all material respects.
(13) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the [each] applicable [Indenture] [Warrant
Agreement] by the Company and the consummation of the transactions contemplated
therein and in the Registration Statement and the Prospectus (including the
issuance and sale by the Company of the Underwritten Securities in accordance
with the Underwriting Agreement and the applicable Terms Agreement and the use
of the proceeds from the sale of the Underwritten Securities as described under
the caption "Use of Proceeds" and the issuance of any Underlying Securities) do
not (i) violate the charter or by-laws of the Company, (ii) constitute a
violation by the Company of any applicable provisions of any law, statute or
regulation (except that we express no opinion in this paragraph as to compliance
with any disclosure requirement or any prohibition against fraud or
misrepresentation or as to whether performance of the indemnification or
contribution provisions in the Underwriting Agreement would be permitted) or
(iii) whether with or without the giving of notice or lapse of time or both,
breach, or result in a default under, any existing obligation of the Company or
any of its Subsidiaries under any of the agreements listed on Schedule I to this
opinion (provided that we express no opinion as to compliance with any financial
test or cross-default provision except insofar as any such cross-default
provision relates to a default under an agreement listed on Schedule I to this
opinion), except in each case as would not reasonably be expected to have a
Material Adverse Effect.
(14) We have no knowledge about any legal or governmental proceeding that is
pending or threatened against the Company or any of its subsidiaries but is not
disclosed in the Prospectus that has caused us to conclude that disclosure of
such proceeding is required by Item 103 of Regulation S-K under the 1933 Act.
We have no knowledge about any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its subsidiaries
is a party or to which any of their respective property is subject that has
caused us to conclude that such contract, indenture, mortgage, loan agreement,
note, lease or other instrument is required to be described in the Prospectus
but is not so described in the Prospectus.
(15) To the best of our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
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
therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material respects.
(16) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to
B-4
Rule 424(b) has been made in the manner and within the time period required by
Rule 424(b). To the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement (or such Rule 462(b) Registration
Statement) has been issued under the 1933 Act and no proceedings for that
purpose have been initiated or are pending or threatened by the Commission.
(17) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which we express no opinion)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(18) The documents incorporated by reference in the Prospectus (other than the
financial statements and supporting schedules therein or omitted therefrom, as
to which we express no opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder.
(19) The Company is not required to obtain any consent, approval,
authorization or order of any court or governmental agency or authority (except
such as may be required under the 1933 Act, the 1934 Act, the 1939 Act and the
security or blue sky laws of the various states (and the rules and regulations
thereunder), as to which we express no opinion in this paragraph) for the due
authorization, execution and delivery of the Underwriting Agreement or the
applicable Terms Agreement by the Company or for the issuance, delivery and sale
of the Underwritten Securities pursuant to the Underwriting Agreement or for the
consummation of the transactions contemplated under the Prospectus, the
Underwriting Agreement, the applicable Terms Agreement and the [each] applicable
[Indenture] [Warrant Agreement] (including the use of proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds" and
the issuance of any Underlying Securities).
(20) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities or if any related Underlying
Securities include Debt Securities --] The [Each] applicable Indenture has been
duly qualified under the 1939 Act.
(21) The Company is not, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
Nothing has come to our attention that would lead us to believe that
the Registration Statement (including any Rule 462(b) Registration Statement) or
any post-effective amendment thereto (except for financial statements and
supporting schedules and other financial data included therein or omitted
therefrom and for the Form T-1s, as to which [we] [I] make no statement), at the
time the Registration Statement (including any Rule 462(b) Registration
B-5
Statement) or any post-effective amendment thereto (including the filing of the
Company's Annual Report on Form 10-K with the Commission) became effective or at
the date of the applicable Terms Agreement, 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 or any amendment or supplement thereto (except for financial
statements and supporting schedules and other financial data included therein or
omitted therefrom, as to which we make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-6
Exhibit C
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
(1) The Company and each of its Subsidiaries (other than IMC-Agrico
Company) have been duly incorporated and are existing and in good standing under
the general corporation laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such
qualification (except where the failure to be so incorporated, existing or
qualified would not result in a Material Adverse Effect) and have the corporate
power necessary to own, lease and operate their respective properties and to
conduct their respective businesses as described in the Prospectus.
(2) All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable;
and, to the undersigned's knowledge, none of the outstanding shares of capital
stock of the Company was issued in violation of any preemptive or other similar
rights of any securityholder of the Company.
(3) Except as disclosed Registration Statement and the Prospectus or
Schedule A to the Underwriting Agreement, all of the outstanding shares of
capital stock of each Subsidiary (other than IMC-Agrico Company) have been duly
authorized and validly issued and are fully paid and non-assessable and (except
for directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all security interests, mortgages, pledges, liens,
encumbrances, equities or claims; to the undersigned's knowledge, none of the
outstanding shares of capital stock of any Subsidiary (other than IMC-Agrico
Company) was issued in violation of any preemptive or similar rights of any
securityholder of such Subsidiary.
(4) IMC-Agrico Company, a Delaware general partnership, is a general
partnership duly formed and existing under the laws of the State of Delaware,
has the partnership power necessary to own, lease or operate its properties and
to conduct its business as described in the Prospectus.
(5) All of the outstanding partnership interests of IMC-Agrico Company
have been duly authorized and are owned as disclosed in the Prospectus, free and
clear of all security interests, mortgages, pledges, liens, encumbrances,
equities or claims; none of such partnership interests was issued in violation
of any preemptive or similar rights of any holder of IMC-Agrico Company
partnership interests.
(6) To my knowledge, and other than as set forth or contemplated in the
Prospectus, there is not pending or threatened any action, suit, proceeding,
inquiry or investigation, to which the Company or any subsidiary is a party, or
to which the property of the Company or any subsidiary is subject, before or
brought by any court or governmental agency or body, domestic
C-1
or foreign, which would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in the Prospectus, Underwriting Agreement, the applicable Terms
Agreement or the [any] applicable [Indenture] [Warrant Agreement] or the
performance by the Company of its obligations thereunder.
(7) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the [each] applicable [Indenture] [Warrant
Agreement] by the Company and the consummation of the transactions contemplated
therein and in the Registration Statement and the Prospectus (including the
issuance and sale by the Company of the Underwritten Securities in accordance
with the Underwriting Agreement and the applicable Terms Agreement, the use of
the proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds" and the issuance of any Underlying Securities) do not
(i) violate the charter or by-laws of the Company, (ii) constitute a violation
by the Company of any applicable provision of any law, statute, regulation,
judgment, order or decree known to me (except that I express no opinion in this
paragraph as to compliance with any disclosure requirement or any prohibition
against fraud or misrepresentation or as to whether performance of the
indemnification or contribution provisions in the Underwriting Agreement would
be permitted) or (iii) whether with or without the giving of notice or lapse of
time or both, breach, or result in a default under, any existing obligation of
the Company or any of its subsidiaries under any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to me to which the
Company or any of its subsidiaries is a party or to which any of the property of
the Company or any of its subsidiaries is subject (provided that I express no
opinion as to compliance with any financial test), except in each case as would
not reasonably be expected to have a Material Adverse Effect.
(8) To my knowledge, except as disclosed in the Prospectus, neither the
Company nor any Subsidiary (i) is in violation of its charter, by-laws or
partnership agreement, as applicable, (ii) is in default, and no event has
occurred that, with notice or lapse of time or both, would constitute a default,
in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which its properties or assets is subject or (iii) is in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property is subject or has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business except, in the case
of clauses (ii) and (iii), for such defaults, violations or failures that would
not reasonably be expected to have a Material Adverse Effect.
(9) The information in the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 under the caption "Other Matters - Environmental
Matters" in Part I, Item 1, and under Part I, Item 3, and in the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1998 under Part II,
Item 1, to the extent that it constitutes matters of law, summaries of legal
matters or legal proceedings, or legal conclusions, has been reviewed by me and
is correct in all material respects as of the date filed with the Commission.
C-2
Schedule A
List of Significant Subsidiaries
--------------------------------
GSL corporation*,
a Delaware corporation
Xxxxxx Chemical Europe Limited,
an England corporation
Xxxxxx Chemical North America, Inc.,
a Delaware corporation
IMC AgriBusiness Inc.,
a Delaware corporation
IMC-Agrico Company,
a Delaware general partnership
IMC Central Canada Potash Inc.,
a Delaware corporation
IMC Chemicals Inc.*,
a Delaware corporation
IMC Global Operations Inc.,
a Delaware corporation
IMC Global Potash Holdings Inc.,
a Delaware corporation
IMC Inorganic Chemicals Inc.,
a Delaware corporation
IMC Kalium Carlsbad Potash Company,
a Delaware corporation
IMC Kalium Ltd.,
a Delaware corporation
______________________________
* Common stock has been pledged for the benefit of 10.25% Senior Secured
Discount Notes due July 15, 2001 issued
Sch-A-1
by Xxxxxx Chemical North America, Inc. and 8.5% Senior Secured Notes due July
15, 2000 issued by Sifto Canada Inc.
Sch-A-2
IMC Kalium Xxxxx Corp.,
a Delaware corporation
IMC Salt Inc.,
a Delaware corporation
International Minerals & Chemical (Canada) Global Limited,
a Canada (Federal) corporation
KCL Holdings, Inc.,
a Delaware corporation
NAMSCO Inc.*,
a Delaware corporation
Phosphate Resource Partners Limited Partnership,
a Delaware limited partnership
Sifto Canada Inc.,
an Ontario corporation
The Vigoro Corporation,
a Delaware corporation
______________________________
* Common stock has been pledged for the benefit of 10.25% Senior Secured
Discount Notes due July 15, 2001 issued by Xxxxxx Chemical North America,
Inc. and 8.5% Senior Secured Notes due July 15, 2000 issued by Sifto Canada
Inc.
Sch-A-3
IMC GLOBAL INC.
(a Delaware Corporation)
Senior Debt Securities
TERMS AGREEMENT
---------------
October 20, 1998
To: IMC Global Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
We understand that IMC Global Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $200,000,000 aggregate principal amount
of its senior debt securities (the "Debt Securities") (such securities also
being hereinafter referred to as the "Underwritten Securities"). Subject to the
terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase , severally and
not jointly, the principal amount of Underwritten Securities set forth opposite
their names below at the purchase price set forth below.
Principal Amount of
Underwriter Underwritten Securities
----------- ------------------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated................................ $140,000,000
Chase Securities Inc............................... 60,000.000
------------
Total....................................... $200,000,000
============
The Underwritten Securities shall have the following terms:
Title: 6 5/8% Notes due 2001.
Rank: Senior Debt.
Ratings: Xxxxx'x Investor's Service, Inc. - Baa2.
Standard & Poor's Ratings Service, a division
of The XxXxxx-Xxxx Companies, Inc. - BBB.
Aggregate principal amount: $200,000,000.
Denominations: $1,000 and integral multiples thereof.
Currency of payment: United States dollars.
Interest rate or formula: 6 5/8% per annum.
Interest payment dates: Each October 15 and April 15, commencing
April 15, 1999.
Regular record dates: Each October 1 and April 1.
Stated maturity date: October 15, 2001.
Redemption provisions: None.
Sinking fund requirements: None.
Conversion provisions: None.
Listing requirements: None.
Black-out provisions: During a period of nine days from October 20,
1998, the Company will not, without the prior
written consent, such consent not to be
unreasonably withheld, of Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, directly
or indirectly, issue, sell, offer or agree to
sell, grant any option for the sale of, or
otherwise dispose of, any other debt
securities of the Company or securities of
the Company that are convertible into, or
exchangeable for, the Underwritten Securities
or such other debt securities.
Fixed or Variable Price Offering: Fixed price offering.
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Initial public offering price per share: 99.701% of the principal amount,
plus accrued interest, if any,
from October 26, 1998.
Purchase price: 99.251% of the principal amount.
Form: Global certificate representing the Underwritten
Securities registered in the name of Cede & Co., as
nominee for The Depository Trust Company.
Other terms and conditions: The Underwritten Securities will be issued under an
indenture, dated as of August 1, 1998, between the
Company and The Bank of New York, as Trustee (the
"Indenture"). All references to the "Indenture" in
the Underwriting Agreement (as defined below) shall
be deemed to refer to the Indenture.
Closing date and location: October 26, 1998; Brown & Wood llp, One World Trade
Center, New York, New York 10048.
All of the provisions contained in the Company's Underwriting
Agreement, dated October 20, 1998 (the "Underwriting Agreement"), are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Unless otherwise specified herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed wholly in such State.
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If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to the
undersigned a counterpart hereof, whereupon this instrument, along with all
counterparts and together with the Underwriting Agreement, shall be a binding
agreement among the Underwriters named herein and the Company in accordance with
its terms and the terms of the Underwriting Agreement.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CHASE SECURITIES INC.
By: Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Authorized Signatory
Accepted:
IMC GLOBAL INC.
By: /s/ X. Xxxx Xxxx, Xx.
-----------------------------------
Name: X. Xxxx Xxxx, Xx.
Title: Vice President and Treasurer
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