EXHIBIT 1(d)
UNDERWRITING AGREEMENT
New York, New York
To the Representative(s) named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
General Electric Capital Corporation, a New York corporation
(hereinafter referred to as the Company), proposes to issue its
[Cumulative]Preferred Stock, par value $.01 per share, described in Schedule I
hereto (hereinafter referred to as the Securities) and the Company has filed
with the Securities and Exchange Commission (hereinafter referred to as the
Commission), and there has become effective, a registration statement (the file
number of which is set forth in Schedule I hereto), including a prospectus,
relating to the Securities. The registration statement as amended to the date
of this Agreement is hereinafter referred to as the Registration Statement, and
the prospectus as amended to the date of this Agreement (other than as amended
by prospectus supplements relating to securities other than the Securities) and
as amended by a prospectus supplement relating to the Securities to be filed
pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Act"),
is hereinafter referred to as the Prospectus (including in each case documents
incorporated by reference).
I.
The Company hereby agrees to sell to the several Underwriters named in
Schedule II hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree to purchase from the Company, severally and not jointly, the
principal amounts of Securities set forth opposite their names in Schedule II
hereto, at the purchase price set forth in Schedule I hereto, plus accrued
dividends, if any, from the date set forth in Schedule I hereto to the date of
payment and delivery.
II.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Securities as soon after
this Agreement is
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entered into as in your judgment is advisable. The terms of the public offering
of the Underwriters' Securities are as specified in Schedule I hereto.
III.
Payment for the Securities shall be made to the Company in U.S. dollars in
same day funds by transfer to an account designated by the Company to the
Underwriters, on the date and at the time specified in Schedule I hereto, upon
delivery to you for the respective accounts of the several Underwriters of the
Securities registered in the name of CEDE & Co., as nominee of The Depository
Trust Company. The time and date of such payment and delivery are herein
referred to as the Closing Date.
IV.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and there shall have been no
material adverse change in the condition of the Company and its subsidiaries,
taken as a whole, from that set forth in the Registration Statement and the
Prospectus; and you shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of the Company, to the
foregoing effect. The officer making such certificate may rely upon the best of
his knowledge as to proceedings pending or threatened.
(b) You shall have received on and as of the Closing Date an opinion of
either Xxxxx X. Xxxxxx, Senior Vice President, General Counsel and Secretary of
the Company, or Xxxxx X. Xxxxxxx, Associate General Counsel - Treasury
Operations and Assistant Secretary, dated the Closing Date, to the effect that
(i) the Company has been duly incorporated and is validly existing under the
laws of the State of New York; (ii) the Company is duly qualified to transact
business and is in good standing in the jurisdictions in which the conduct of
its business or the ownership of its property requires such qualification; (iii)
the Securities have been duly authorized and, when issued and delivered to and
paid for by the Underwriters, will be duly issued, fully paid and nonassessable
shares of the Company; (iv) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, except as rights to indemnity hereunder may be limited under applicable
law; (v) neither the execution and delivery of this Agreement nor the issuance
and sale of the Securities by the Company as provided herein will contravene the
Organization Certificate or by-laws of the Company or result in any violation of
any of the terms or provisions of any law or regulation or of any indenture,
mortgage or other agreement or instrument known to such counsel by which the
Company or any of its subsidiaries is bound; (vi) the statements contained in
the Prospectus under the caption "Description of the Preferred Stock" fairly
present the matters referred to therein; (vii) each document incorporated by
reference in the Prospectus which was filed pursuant to
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the Securities Exchange Act of 1934, as amended (the "Exchange Act") (except for
the financial statements included therein, as to which such counsel need not
express any opinion) complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations thereunder;
(viii) the Registration Statement and the Prospectus and any supplements and
amendments thereto (except for the financial statements and except for
supplements relating only to securities other than the Securities, as to which
such counsel need express no opinion) comply as to form in all material respects
with the Act and the rules and regulations of the Commission thereunder; (ix)
such counsel believes that (except for the financial statements included
therein, as to which counsel need not express any belief) each part of the
Registration Statement at the time such part became effective did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and the Prospectus as of the date of the prospectus supplement relating to the
Securities did not, and the Prospectus (as amended or supplemented) does not,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) You shall have received on and as of the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the Closing Date,
covering the matters in (i), (iii), (iv), (vi), (viii) and (ix) of paragraph (b)
above.
In rendering the opinion referred to in paragraph (b) above, such counsel
may state that with respect to (viii) and (ix) of paragraph (b) above, such
counsel's opinion and belief is based upon his participation in the preparation
of the Registration Statement and the Prospectus and any amendments and
supplements thereto (including documents incorporated by reference) and review
and discussion of the contents thereof, but is without independent check or
verification except as stated therein. In rendering the opinions referred to in
(c) above, such counsel may state that with respect to (viii) and (ix) of
paragraph (b) above, such counsel's opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendments and supplements thereto (other than documents
incorporated by reference) and upon their review and discussion of the contents
thereof (including documents incorporated by reference), but is without
independent check or verification except as stated therein.
(d) You shall have received on the Closing Date, a letter dated the Closing
Date in form and substance satisfactory to you, from KPMG Peat Marwick LLP,
independent public accountants, 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 or incorporated by reference into the Registration Statement and the
Prospectus.
V.
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In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish to each of you without charge two copies of the Registration
Statement (including exhibits and documents incorporated by reference), and to
each other Underwriter a copy of the Registration Statement (without exhibits
but including documents incorporated by reference), and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus and any
amendments or supplements thereto prepared pursuant to paragraph (c) below as
you may reasonably request. The terms "supplement" and "amendment" or "amend"
as used in this Agreement include all documents subsequently filed by the
Company pursuant to the Exchange Act which are deemed to be incorporated by
reference in the Prospectus from the date of filing such documents in accordance
with Form S-3.
(b) To prepare and file (or mail for filing) with the Commission pursuant
to Rule 424 under the Act, as promptly as practicable after the execution of
this Agreement, a prospectus supplement setting forth such information as is
necessary so that the Prospectus, when delivered to a purchaser of the
Securities, will comply with law and, before amending the Registration Statement
or supplementing the Prospectus with respect to the Securities, to furnish you a
copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public offering of
the Securities as in the opinion of your counsel a prospectus is required by law
to be delivered in connection with sales by an Underwriter or dealer, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you shall furnish to the Company) to
which Securities may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
(d) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all expenses (including fees and disbursements of counsel) in
connection with such qualification and in connection with the determination of
the eligibility of the Securities for investment under the laws of such
jurisdictions as you may designate; provided that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now subject.
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(e) To make generally available to its security holders as soon as
practicable an earnings statement (which need not be audited) covering a twelve-
month period beginning after the date of this Agreement which shall satisfy the
provisions of Section 11(a) of the Act.
VI.
The Company represents and warrants to each Underwriter that (i) each
document filed by the Company pursuant to the Exchange Act which is incorporated
by reference in the Prospectus complied when so filed in all material respects
with the Exchange Act and the rules and regulations thereunder, and each
document, if any, hereafter filed and so incorporated by reference in the
Prospectus will comply when so filed with the Exchange Act and the rules and
regulations thereunder; (ii) the Registration Statement and the Prospectus
comply, and the Registration Statement and the Prospectus (and any Amendments
and supplements thereto, other than supplements relating only to securities
other than the Securities) will on the Closing Date comply, in all material
respects with the Act and the applicable rules and regulations of the Commission
thereunder; (iii) each preliminary prospectus, if any, filed pursuant to Rule
424 under the Act complied when so filed in all material respects with the Act
and the applicable rules and regulations thereunder; and (iv) each part of the
Registration Statement at the time such part became effective did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and the Prospectus as of the date of the prospectus supplement relating to the
Securities did not, and the Prospectus (as amended or supplemented, other than
as to supplements relating only to securities other than the Securities) on the
Closing Date will not, contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; except
that these representations and warranties do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon information
furnished to the Company in writing by any Underwriter expressly for use
therein.
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 Act, or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (if used within the period set forth in
paragraph (c) of Article V hereof and as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Company by any Underwriter
expressly for use therein.
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Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, the Prospectus
or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party, and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by you in the
case of parties indemnified pursuant to the second preceding paragraph and by
the Company in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in this Article VI is unavailable to an
indemnified party under the second or third paragraphs hereof in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) if the indemnifying party is
the Company, 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 from the offering of the Underwriters' Securities, (ii) if the
indemnifying party is an Underwriter, in such proportion as is appropriate to
reflect the relative fault of such Underwriter on the one hand and the Company
on the other hand in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, or
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(iii) if the allocation provided by clause (i) or clause (ii) above, as the case
may be, is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above or the
relative fault referred to in clause (ii) above, as the case may be, but also
such relative fault (in cases covered by clause (i)) or such relative benefits
(in cases covered by clause (ii)) 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 shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the Prospectus. The relative
fault of the Company on the one hand and of the Underwriters on the other shall
be determined by reference to, among other things, whether the untrue statement
of a material fact or the 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 Article VI were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations provided for, in the respective cases, in clause (i),
(ii) and (iii) of the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Article VI, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VI are several, in proportion to the respective amounts of Securities
purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VI and
the representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of and payment for the Securities.
VII.
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Unless otherwise provided in Schedule I hereto, this Agreement shall be
subject to termination in the discretion of a majority in interest of the
Underwriters at any time prior to the Closing Date, by notice given to the
Company, if (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited; (ii) a general moratorium on
commercial banking activities in the State of New York or the United States
shall have been declared by Federal authorities; or (iii) there shall have
occurred any material outbreak, or material escalation, of hostilities or other
national or international calamity or crisis, of such magnitude and severity in
its effect on the financial markets of the United States, in the reasonable
judgment of a majority in interest of the Underwriters, as to prevent or
materially impair the marketing, or enforcement of contracts for sale, of the
Securities.
VIII.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Securities.
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This Agreement may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
GENERAL ELECTRIC CAPITAL CORPORATION
By:__________________________________
Name:
Title:
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Accepted, as of the date set
forth in Schedule I hereto
UNDERWRITER NAME
By:___________________________________
Name:
Title:
acting severally on behalf of
such Representative(s) and the
several Underwriters named in
Schedule II hereto
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SCHEDULE I
Underwriting Agreement dated _________, 199_
Registration Statement No. 333-_________
Representative(s) and address(es):
UNDERWRITER NAME
ADDRESS
Title of Securities: [Cumulative]Preferred Stock Series __
Number of Shares: ___ Shares (Series __)
Certain Terms of the Securities:
As set forth under "Description of the Preferred Stock", in the
Prospectus dated July __ , 1998 and on the cover page and under
"Description of the Preferred Shares" in the Prospectus Supplement
dated as of ___________, 199_.
Certain Terms of the Underwriting:
Purchase Price: $____ per share
Public Offering Price: $____ per share
Underwriting Discount: $____ per share
Dealer Concession: $____ per share
Reallowance Concession: $____ per share
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The Underwriter's Securities are to be offered to the public at the Public
Offering Price specified above, and to dealers at prices which represent
concessions not in excess of the Dealer Concession set forth above.
Payment (if other than by wire transfer in immediately available funds):
N/A
Closing: Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City time,
on [DATE].
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SCHEDULE II
Series __
Shares to be
Underwriter(s) Purchased
--------------
UNDERWRITER
NAME
Total
