EXHIBIT 1.1
$XXX,000,000
THERMO ELECTRON CORPORATION
UNDERWRITING AGREEMENT
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July , 1997
Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Salomon Brothers Inc
Xxxxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Thermo Electron Corporation, a Delaware corporation (the "Company"), proposes
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to issue and sell up to $XXX,000,000 of a combination of the Company's (i) debt
securities, consisting of debentures, notes or other unsecured evidences of
indebtedness (the "Debt Securities"), which may be either senior debt securities
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or subordinated debt securities, and (ii) shares of common stock, $1.00 par
value (the "Common Stock"), in one or more offerings on terms and conditions
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determined at the time of sale. The Debt Securities and the Common Stock are
sometimes referred to herein as the "Offered Securities." The Debt Securities
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will be issued pursuant to an indenture dated as of _________ (the "Indenture")
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between the Company and Bankers Trust Company, as trustee (the "Trustee").
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From time to time, the Company may enter into one or more terms agreements
(each a "Terms Agreement") that provide for the sale of such designated Offered
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Securities to, and the purchase and offering thereof by, either or both of you,
as applicable, and the underwriter or underwriters named therein (the
"Underwriters" or "you", which terms shall include the underwriter or
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underwriters named therein whether acting alone in the sale of Offered
Securities or as members of an underwriting syndicate), and the provisions set
forth herein (except for provisions which relate to securities other than
Offered Securities designated in the applicable Terms Agreement) shall be
incorporated by reference in any such Terms Agreement. The applicable Terms
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement."
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1. Representations, Warranties and Agreements of the Company. The Company
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represents, warrants and agrees with each Underwriter as follows:
(a) A registration statement on Form S-3 (No. 333- ), including a
prospectus relating to the Offered Securities of the Company for the
registration of such securities under the
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United States Securities Act of 1933, as amended (the "Securities Act"), has (i)
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been prepared by the Company in material conformity with the requirements of the
Securities Act and the rules and regulations (the "Rules and Regulations") of
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the United States Securities and Exchange Commission (the "Commission")
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thereunder, (ii) been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act; and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
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Indenture Act"). Copies of such registration statement and any amendments
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thereto have been delivered by the Company to you. As used in this Agreement,
"Effective Date" means the date and the time as of which such registration
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statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Registration Statement" means the
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registration statement as amended to the date of this Agreement, including all
documents incorporated by reference or deemed to be incorporated by reference
therein and the exhibits thereto; "Base Prospectus" means the prospectus
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included in the Registration Statement; "Preliminary Prospectus" means any
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preliminary form of Prospectus (as defined herein) specifically relating to
designated Offered Securities, in the form first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 of the Rules and Regulations;
"Prospectus Supplement" means any prospectus supplement specifically relating to
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designated Offered Securities, in the form first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 under the Securities Act;
"Prospectus" means the Base Prospectus together with the Prospectus Supplement
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except that if such Base Prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement was first filed pursuant to Rule
424, the term "Prospectus" shall refer to the Base Prospectus as so amended or
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supplemented and as supplemented by the Prospectus Supplement; "Base
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Prospectus," "Prospectus," "Preliminary Prospectus" and "Prospectus Supplement"
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shall include in each case the documents, if any, filed by the Company with the
Commission pursuant to the United States Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference therein; and
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"supplement" and "amendment", shall be deemed to refer to and include any
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documents incorporated by reference pursuant to Item 12 of Form S-3 under the
Securities Act that are filed subsequent to the date of the Base Prospectus by
the Company with the Commission pursuant to the Exchange Act. Any reference to
any amendment to the Registration Statement shall be deemed to include any
annual report of the Company filed with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act after the Effective Date that is incorporated by
reference in the Registration Statement. Any reference herein to information
"contained in," "contemplated by," "described in," "disclosed in," "included in"
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or "set forth in" any of the foregoing documents, or words of similar effect,
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shall be deemed to include the documents incorporated or deemed to be
incorporated by reference therein.
(b) The Registration Statement complies as to form in all material respects,
and the Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, comply as to form in all material respects
to the requirements of the Securities Act and the Rules and Regulations and do
not and will not, as of the applicable Effective Date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing date and
applicable Closing Date (as to the Prospectus and any amendment or supplement
thereto) contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein
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or necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances in which they were made), not misleading; provided,
however, that no representation or warranty is made as to information contained
in or omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter specifically for use in the Registration Statement or
the Prospectus. To the extent applicable, the copies of the Registration
Statement and each other document referred to in subparagraph (a) above that
have been or will be furnished to the Underwriters have been and will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to the Commission's Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX"), except to the extent permitted by Regulation S-T.
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(c) If the Offered Securities are Debt Securities: The Indenture conforms in
all material respects to the requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder.
(d) The documents incorporated or deemed to be incorporated by reference in
the Prospectus, when they were filed with the Commission, conformed in all
material respects with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder,
and none of such documents 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; and any further documents so filed
and incorporated or deemed to be incorporated by reference in the Prospectus,
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder 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.
(e) The Company and each of its Subsidiaries have been duly incorporated and
are validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation. The Company and each of their its
Subsidiaries 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 qualified and in good standing
would not have a material adverse effect on the consolidated financial
condition, shareholders' equity, results of operations or business of the
Company and its Subsidiaries taken as a whole, and where so qualified have all
corporate power and authority necessary to own, lease or operate their
respective properties and to conduct the businesses in which they are engaged as
described in the Prospectus. Except as described in the Prospectus, the Company
and its Subsidiaries hold all material licenses, certificates and permits from
governmental authorities necessary for the conduct of their respective
businesses as described in the Prospectus.
(f) The Company had an authorized and issued capitalization as set forth in
the Prospectus (as of the date specified therein), and all of the issued and
outstanding shares of
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capital stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and conform in all material respects to the
description thereof contained in the Prospectus; and all of the issued and
outstanding shares of capital stock of each Subsidiary of the Company have been
duly and validly authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares and as set forth in the Prospectus) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except that certain of such shares are
reserved for transfer pursuant to stock option and other benefit plans under
which options to purchase common stock of such corporation owned by its
corporate parent are granted to certain employees, directors or consultants of
the Company and its Subsidiaries.
(g) If the Offered Securities are Debt Securities: The Debt Securities have
been duly and validly authorized by the Company and, when duly executed, issued
and delivered by the Company, and authenticated by the Trustee pursuant to the
provisions of the Indenture, against payment therefor as provided in this
Agreement, will constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance and transfer, reorganization, moratorium, or other similar
laws now or hereafter in effect relating to creditors' rights generally
("applicable bankruptcy laws") and general equitable principles (whether
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considered in a proceeding in equity or at law); and the Debt Securities, when
issued and delivered, will conform in all material respects to the description
thereof contained in the Prospectus.
(h) If the Offered Securities are Debt Securities: The Indenture has been
duly authorized by the Company, and when duly executed by the proper officers of
the Company (assuming due execution and delivery by the Trustee) and delivered
by the Company and will constitute a valid and legally binding obligation of the
Company enforceable against it in accordance with its terms, subject to the
effects of applicable bankruptcy laws and general equitable principles (whether
considered in a proceeding in equity or at law); and the Indenture conforms in
all material respects to the description thereof contained in the Prospectus.
(i) If the Offered Securities are shares of Common Stock: The unissued shares
of Common Stock have been duly and validly authorized and, when issued and
delivered against payment therefor as provided in this Agreement, such shares
will be duly and validly issued, fully paid and non-assessable and will conform
in all material respects to the description thereof contained in the Prospectus.
(j) If the Offered Securities are convertible into shares of Common Stock: The
shares of Common Stock reserved for issuance upon conversion of convertible Debt
Securities have been validly authorized and reserved for such purpose; and, if
and when any of such convertible Debt Securities are converted into shares of
Common Stock in accordance with the conversion rights so provided, such shares
of Common Stock will be validly issued, fully paid and non-assessable and
delivered in accordance with the terms of the Company's corporate charter and
by-laws; and when issued and delivered, such Common Stock will conform in all
material respects to the description thereof contained in the Prospectus.
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(k) If the Offered Securities are shares of Common Stock: There are no
preemptive or other rights to subscribe for or to purchase, nor any restrictions
upon the voting or transfer of any shares of the Common Stock, including any
Common Stock issuable upon conversion of any Offered Securities, in each case,
pursuant to the Company's corporate charter or by-laws or any agreement or other
instrument to which the Company is a party.
(l) This Agreement has been duly authorized, executed and delivered by the
Company.
(m) The execution, delivery and performance of this Agreement by the Company,
the execution, delivery and performance of the Indenture (if the Offered
Securities are Debt Securities) by the Company, and the consummation of the
transactions contemplated hereby and thereby, and the issuance and delivery of
the Offered Securities will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under any
indenture, lien, charge or encumbrance upon any property or mortgage, deed of
trust, loan agreement, 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 is bound or to
which any of the property or assets of the Company or any of their its
Subsidiaries is subject, except in each case for such conflicts, breaches,
violations or defaults which would not have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of operations or
business of the Company and its Subsidiaries taken as a whole, nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any of its Subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its Subsidiaries or any of their respective material
properties or assets; and except for the registration of the Offered Securities
under the Securities Act, the qualification of the Indenture under the Trust
Indenture Act, and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act or applicable state or
foreign securities laws or by the National Association of Securities Dealers,
Inc. in connection with the purchase and distribution of the Offered Securities
by the Underwriters, no consent, approval, authorization or order of, or filing,
registration or qualification of or with, any such court or governmental agency
or body is required for the execution, delivery and performance of this
Agreement, the Indenture (if the Offered Securities are Debt Securities), by the
Company and the consummation by the Company of the transactions contemplated
hereby and thereby.
(n) Except as described in the Registration Statement or the Prospectus, there
are no agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration statement
under the Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
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(o) Neither the Company nor any of its Subsidiaries has sustained, since the
date of the latest financial statements included or incorporated by reference in
the Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which is material to
the Company and its Subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus; except as contemplated by or disclosed in the
Prospectus, since such date, the Company has not incurred any material liability
or obligation, or entered into any transaction other than in the ordinary course
of business, or declared or paid any dividend on its capital stock or issued or
granted any securities; and except as contemplated by or disclosed in the
Prospectus, since such date, there has not been any material change in the
capital stock of the Company or any of its Subsidiaries or any material change
in the consolidated long-term debt of the Company, or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the business, management, financial condition, shareholders' equity
or results of operations of the Company and its Subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(p) Xxxxxx Xxxxxxxx LLP, which has certified the financial statements of the
Company included in the Registration Statement, and any other accounting firm
which has certified any financial statements contained in the Registration
Statement, and whose reports appear in the Prospectus or are incorporated by
reference therein, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(q) The financial statements (including the related notes and supporting
schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present fairly in all material
respects the financial condition and results of operations of the entities
purported to be shown thereby at the dates and for the periods indicated; and
have been prepared in conformity with United States generally accepted
accounting principles or International Accounting Standards, as the case may be,
applied on a consistent basis throughout the periods involved, except as
otherwise expressly set forth therein.
(r) Except as described in the Registration Statement or the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any material property or assets of the
Company or any of its Subsidiaries is the subject which is required to be
disclosed in the Registration Statement or the Prospectus which, if resolved
adversely to such party, would have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of operations or
business of the Company and its Subsidiaries taken as a whole or the
transactions contemplated by this Agreement; and to the Company's knowledge, no
such proceedings are threatened by governmental authorities or threatened by
others.
(s) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the Registration Statement
or incorporated therein by reference under the Rules and Regulations.
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(t) Neither the Company nor any of its Subsidiaries is
(i) in violation of its corporate charter or by-laws, or
(ii) except as described in the Prospectus, in default in any material
respect, and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture, mortgage, deed
of trust, loan agreement or other agreement to which the Company or any of its
Subsidiaries is a party or by which it or any of them is or may be bound or to
which any of the properties or assets of the Company or any of its Subsidiaries
is subject, except for such defaults which would not have a material adverse
effect on the consolidated financial condition, shareholders' equity, results of
operations or business of the Company and its Subsidiaries taken as a whole; or
(iii) except as described in the Prospectus, in violation in any
material respect of any law, ordinance, governmental rule, regulation or court
decree to which the Company or any of its Subsidiaries or its or any of their
respective property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its or their property or
to the conduct of its or their business, except for such violations or failures
which would not reasonably be expected to have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of operations or
business of the Company and its Subsidiaries taken as a whole.
(u) Except as described in the Prospectus, the Company and its Subsidiaries
own, or have valid rights to use, all items of real and personal property which
are material to the business of the Company and its Subsidiaries taken as a
whole, free and clear of all liens, encumbrances and claims which may materially
interfere with the consolidated financial condition, shareholders' equity,
results of operations or business of the Company and its Subsidiaries taken as a
whole.
(v) Except as disclosed in the Prospectus, the Company and its Subsidiaries
own or possess adequate licenses or other rights to use all intellectual
property rights, including patents, trademarks, service marks, trade names,
copyrights or know-how, necessary to conduct their respective businesses as
described in the Prospectus, except where such failure, singularly or in the
aggregate, would not have a material adverse effect on the consolidated
financial condition, shareholders' equity, results of operations or business of
the Company and its Subsidiaries taken as a whole, and, except as disclosed in
the Prospectus, none of the Company or its Subsidiaries has received any
written notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) rights or claims of others with respect to any
patents, trademarks, service marks, trade names, copyrights or know-how, that if
the subject of an unfavorable decision, ruling or finding, would result in a
material adverse effect on the consolidated financial condition, shareholders'
equity, results of operations or business the Company and its Subsidiaries taken
as a whole, and, except as disclosed in the Prospectus, all products or
processes referred to in the Prospectus and relating to the business of the
Company or its Subsidiaries now conducted by it do not infringe upon or conflict
with any right or patent, or
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with any discovery, invention, product or process which is the subject of any
patent application known to the Company, in a manner which would materially and
adversely affect the consolidated financial condition, shareholders' equity,
results of operations of the Company and its Subsidiaries taken as a whole.
(w) Neither the Company nor any of its Subsidiaries is an "investment company"
within the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
(x) Since the date which is three months prior to this Agreement, no debt
rating assigned to the Company by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations, has been lowered or, to the Company's
knowledge, threatened to be lowered by any such rating organization nor, to the
Company's knowledge, has it been placed under surveillance or review by any such
rating organization.
(y) Any certificate signed by any officer of the Company and delivered to the
Underwriters or to counsel for the Underwriters pursuant to this Agreement shall
be deemed a representation and warranty hereunder by the Company to each
Underwriter as to the matters covered thereby.
2. Purchase of the Offered Securities by the Underwriters. On the basis of
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the representations and warranties contained in, and subject to the terms and
conditions set forth herein, the Company agrees to sell to the Underwriters and
each of the Underwriters, severally and not jointly, agrees to purchase from the
Company, at the price and/or principal amount, as the case may be, set forth in
the applicable Terms Agreement attached hereto as Schedule I and in the
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respective amounts and number of shares, as the case may be, of the designated
Offered Securities set forth opposite the name of each such Underwriter in
Exhibit A to such Terms Agreement. In addition, the Company may specify in any
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Terms Agreement relating to any offering that the Company thereby grants to the
Underwriters an option to purchase up to the number of shares or principal
amount of additional Offered Securities (the "Option Securities," and if so
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purchased shall also be "Offered Securities" herein) in the amount set forth in
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such Terms Agreement. The option thereby granted is exercisable as provided in
Section 4 hereof, shall expire at the close of business on the 30th day after
the date of the applicable Terms Agreement (unless otherwise specified therein)
and will be granted solely for the purpose of covering over-allotments which may
be made in connection with the applicable offering. The Option Securities shall
be purchased severally for the account of the Underwriters in proportion to the
number or amount of Offered Securities set opposite the name of such
Underwriters in Exhibit A of the applicable Terms Agreement. The respective
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purchase obligations of each Underwriter with respect to the Option Securities
shall be adjusted by the managing Underwriter so that no Underwriter shall be
obligated to purchase Option Securities in amounts other than in 100 share or
$1,000 principal amount increments.
3. Offering of the Offered Securities by the Underwriters. (a) The several
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Underwriters propose to offer the Offered Securities for sale upon the terms and
conditions set
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forth in the Prospectus and any amendment or supplement thereto relating to the
Offered Securities.
(b) Each Underwriter severally agrees to comply with the following
restrictions in the offering and sale of any Debt Securities:
(i) except to the extent permitted under U.S. Treasury Regulation
(S)1.163-5(c)(2)(i)(D) (the "D Rules"), (A) the Underwriters have not offered or
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sold, and during the restricted period will not offer or sell, Debt Securities
in bearer form to a person who is within the United States or its possessions or
to a United States person, and (B) the Underwriters have not delivered, and will
not deliver, within the United States or its possessions definitive Debt
Securities in bearer form that are sold during the restricted period;
(ii) The Underwriters and each of their affiliates that is acquiring
from them Debt Securities in bearer form for the purposes of offering or selling
such Debt Securities during the restricted period, presently have in effect, and
throughout the restricted period will have in effect, procedures reasonably
designed to ensure that such Underwriters and such affiliates and their
respective employees or agents who are directly engaged in selling Debt
Securities in bearer form are aware that such Debt Securities may not be offered
or sold during the restricted period to a person who is within the United States
or its possessions or to a United States person, except as permitted by the D
Rules;
(iii) Each Underwriter that is a United States person, if any, is
acquiring, either as agent or on its own behalf, the Debt Securities in bearer
form for purposes of resale in connection with their original issuance, and if
it retains Debt Securities in bearer form for its own account, it will only do
so in accordance with the requirements of U.S. Treasury Regulation (S)1.163-
5(c)(2)(i)(D)(6); and
(iv) With respect to each of the Underwriters' affiliates that
acquires from such Underwriter Debt Securities in bearer form for the purpose of
offering or selling such Debt Securities during the restricted period, such
Underwriter agrees that it will obtain from such affiliate for the benefit of
the Company the representations, warranties, covenants and agreements contained
in clauses (i), (ii) and (iii).
Terms used in this Section 3(b) have the meanings given to them by the U.S.
Internal Revenue Code and regulations thereunder, including the D Rules.
(c) Each Underwriter severally represents and agrees that (i) it has not
offered or sold and will not offer or sell in the united Kingdom any Offered
Securities except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purpose of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 (the
"Regulations") or the Financial Services Xxx 0000, (ii) it has complied and will
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comply with all applicable provisions of the Financial Services Xxx 0000 and the
Regulations with respect to anything done by it in relation to
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the Offered Securities in, from or otherwise involving the United Kingdom and
(iii) it has only issued or passed on, and will only issue or pass on, in the
United Kingdom any document received by it in connection with the issue of the
Offered Securities if that person is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) order 1996
or is a person to whom the document may otherwise lawfully be issued or passed
on.
4. Delivery of and Payment for the Offered Securities. Delivery of and
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payment for the Offered Securities shall be made at the headquarters office of
the managing Underwriter, or at such other location as may be agreed upon by the
Underwriters and the Company, at 10:00 a.m., Eastern time, on the third business
day (or on the fourth business day, if permitted by the Rules and Regulations)
following the date of this Agreement, or at such other time and date as shall be
agreed upon (each such date and time of payment and delivery being herein called
the "Closing Date") in the manner set forth in the applicable Terms Agreement.
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Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Offered Securities shall be registered
in such names and in such denominations as the Underwriters shall request in
writing not less than two full business days prior to the Closing Date. For the
purpose of expediting the checking and packaging of the certificates for the
Common Stock, the Company shall make the certificates representing the Common
Stock available for inspection by the Underwriters in New York, New York, not
later than 2:00 p.m., Eastern time, on the business day prior to the Closing
Date. The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, one or more depositories, or a nominee thereof, identified in the Prospectus
relating to such series. In such a case, the manner of delivery of such global
securities will be set forth in the applicable Terms Agreement, or if not so set
forth, as described in the applicable Prospectus. At any time on or before the
thirtieth day after the date of any Terms Agreement relating to Option
Securities, if applicable, the option granted in Section 2 may be exercised by
written notice being given to the Company by or on behalf of the Underwriters.
Such notice shall set forth the aggregate number or amount of Option Securities
as to which the option is being exercised, the names in which the Option
Securities are to be registered if not in global form as set forth above, the
denominations in which the shares of Option Securities are to be issued and the
date and time, as determined by the Underwriters, when the Option Securities are
to be delivered; provided, however, that this date and time shall not be earlier
than the Closing Date nor earlier than the second business day after the date on
which the option shall have been exercised nor later than the third business day
after the date on which the option shall have been exercised. The date and time
the Option Securities are delivered are sometimes referred to as the "Option
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Closing Date". Delivery of and payment for the Option Securities shall be made
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at the place specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by agreement between
the Underwriters and the Company at 10:00 a.m., Eastern time, on the Option
Closing Date). On the Option Closing Date, the Company shall deliver or cause to
be delivered the certificates representing the Option Securities to the
Underwriters for the account of each Underwriter against payment to or upon the
order of the Company of the purchase price in the manner set forth in the
applicable Terms Agreement. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each
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Underwriter hereunder. Upon delivery, the Option Securities shall be registered
in such names (if other than in global form) and in such denominations as the
Underwriters shall request in the aforesaid notice. For the purpose of
expediting the checking and packaging of certificates for the Option Securities
that are Common Stock, the Company shall make the certificates representing such
Common Stock available for inspection by the Underwriters in New York, New York,
not later than 2:00 p.m., Eastern time, on the business day prior to the Option
Closing Date.
5. Further Agreements of the Company. The Company agrees:
---------------------------------
(a) To prepare the Prospectus in a form reasonably approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act; after the date of the applicable Terms Agreement, to make no
further amendment or supplement to the Registration Statement or to the
Prospectus prior to the applicable Closing Date except as permitted herein; to
advise the Underwriters, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Underwriters with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company or with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Offered Securities; to advise the Underwriters, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the Offered Securities
for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish, promptly upon request by the representatives of the
Underwriters named in any applicable Terms Agreement (the "Representatives" and
---------------
if no Representatives are so named, then any references herein to the
Representatives shall be deemed to refer to the Underwriters), to the
Underwriters and to counsel for the Underwriters a copy of the Registration
Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the following
documents as the Representatives shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding exhibits
other than this
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Agreement and the Indenture and such other exhibits as the Underwriters may
reasonably request),
(ii) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and
(iii) any document incorporated or deemed incorporated by reference
in the Prospectus (excluding exhibits thereto); and, if the delivery of a
prospectus is required at any time after the Effective Date in connection with
the offering or sale of the Offered Securities and if at such time any events
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus (or to file under the Exchange Act any
document incorporated by reference in the Prospectus) in order to comply with
the Securities Act or the Exchange Act, to notify the Underwriters and, upon the
reasonable request of the Representatives, to file such document and to prepare
and furnish without charge to each Underwriter as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance;
(d) To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may, in the
judgment of the Company and the Underwriters, be required by the Securities Act,
or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the Registration
Statement or supplement to the Prospectus, and promptly after filing with the
Commission (or, if between the signing of any applicable Terms Agreement and the
Closing Date thereunder, prior to filing with the Commission) any document
incorporated or deemed incorporated by reference in the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Underwriters and counsel for the Underwriters;
(f) As soon as practicable after the date of this Agreement and every Terms
Agreement relating to designated Offered Securities, to make generally available
to its security holders an earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(g) For a period of five years following the applicable Closing Date, to
furnish to the Underwriters, copies of all materials furnished by the Company to
all of its shareholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Stock and any other Offered Securities may be
listed pursuant to requirements of or agreements with such exchange or to the
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Commission pursuant to the Exchange Act or any rules or regulations of the
Commission thereunder;
(h) Promptly from time to time to take such action as the Underwriters may
reasonably request to qualify the Offered Securities for offering and sale under
the securities laws of such jurisdictions as the Underwriters may reasonably
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Offered Securities; provided, however, that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not so qualified;
(i) For a period of 90 days after the date of the Prospectus relating to
designated Common Stock, or Offered Securities convertible into Common Stock but
only if specified in the applicable Terms Agreement (unless a different time
period is set forth in the applicable Terms Agreement), the Company will not,
directly or indirectly, offer for sale, sell or otherwise dispose of (or enter
into any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any shares
of Common Stock or any security convertible or exchangeable for Common Stock
(other than shares issuable pursuant to employee benefit plans, stock option
plans or other compensation plans existing on the date thereof or pursuant to
then currently outstanding options, warrants or rights and other than the
issuance of shares of Common Stock as consideration for the acquisition of one
or more businesses provided that such Common Stock may not be resold prior to
the expiration of the 90-day period referenced above), or sell or grant options,
rights or warrants with respect to any shares of Common Stock (other than the
grant of options pursuant to option plans existing on the date thereof)
otherwise than in accordance with this Agreement or as contemplated in the
Prospectus without the prior written consent of the Representatives;
(j) In the event designated Offered Securities are to be listed on a
securities exchange, to apply for any listing of such designated Offered
Securities on such securities exchange and to use its best efforts to complete
and maintain that listing, subject only to official notice of issuance, prior to
the relevant Closing Date, or if not so listed by such date, as soon as
practical thereafter. In the case of Offered Securities that are Debt Securities
to be listed on a foreign securities exchange, if the Company is not able to
effect or maintain such listing, it will use its best efforts to obtain and
maintain the quotation for, or listing of, such Debt Securities on such other
stock exchange or exchanges as the Company may, with the approval of the
Representatives, determine;
(k) To apply the net proceeds from the sale of the Offered Securities being
sold by the Company as set forth in the Prospectus; and
(l) If the Offered Securities include Debt Securities, not to offer or sell
such Debt Securities in bearer form during the restricted period to a person who
is within the United States or its possessions or to a United States person
(each as defined in the U.S. Internal Revenue Code and regulations thereunder,
including the D Rules).
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6. Expenses. The Company agrees to pay:
--------
(a) the costs incident to the authorization, issuance, sale and delivery
of the Offered Securities and any taxes payable in that connection (other than
taxes based on income);
(b) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and exhibits
thereto;
(c) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any Preliminary Prospectus, the Prospectus
and any amendment or supplement to the Prospectus or any document incorporated
or deemed incorporated by reference therein, all as provided in this Agreement;
(d) the costs, if any, of printing this Agreement and any other related
documents in connection with the offering, purchase, sale and delivery of the
Offered Securities;
(e) any applicable listing or other fees;
(f) the filing fee of the National Association of Securities Dealers,
Inc. and the fees and expenses of qualifying the Offered Securities under the
securities laws of the several jurisdictions as provided in Section 5(h) and of
preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriters);
(g) any fees charged by securities rating services for rating any Offered
Securities; and
(h) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that, except as
provided in this Section 6 and in Section 8 and Section 11, the Underwriters
shall pay the costs and expenses of their counsel, any transfer taxes on the
Offered Securities which they may sell, the expenses of advertising any offering
of the Offered Securities made by the Underwriters and all other costs and
expenses of the Underwriters and their counsel not enumerated in this Section 6.
7. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters to purchase and pay for any Offered Securities are subject to the
accuracy, when made, and on each Closing Date, of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder and under any Terms Agreement, and to each of the
following additional terms and conditions:
(a) At the applicable Closing Date, the Prospectus shall have been timely
filed with the Commission in accordance with Section 5(a); no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for
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that purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied
with to the Representatives' reasonable satisfaction.
(b) No Underwriter shall have discovered and disclosed to the Company on
or prior to any Closing Date that the Registration Statement or the Prospectus
or any amendment or supplement thereto contains an untrue statement of a fact
that, in the opinion of counsel for the Underwriters, is material or omits to
state a fact that, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances in which they were made), not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form, validity and enforceability of this Agreement, any Terms
Agreement, the Indenture, the Offered Securities, the Registration Statement and
the Prospectus, and all other legal matters relating to this Agreement and any
Terms Agreement and the transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(d) Xxxx X. Xxxxxxxxx, Esq., General Counsel to the Company, shall have
furnished to the Underwriters his opinion, in such capacities, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company and each of its Significant Subsidiaries have been
duly incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation. The Company
and each of its Significant Subsidiaries 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
qualified and in good standing would not have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of operations or
business of the Company and its Subsidiaries taken as a whole, and where so
qualified have all corporate power and authority necessary to own, lease or
operate their respective properties and to conduct the businesses in which they
are engaged as described in the Prospectus;
(ii) The Company had an authorized and outstanding capitalization as
set forth in the Prospectus (as of the date such information is given). All of
the outstanding shares of capital stock of each of the Company and its
Significant Subsidiaries are duly authorized and validly issued, and, to the
best of such counsel's knowledge, fully paid and non-assessable; to the best of
such counsel's knowledge, the Company owns, directly or indirectly through
Subsidiaries, the amount of the outstanding capital stock of its Significant
Subsidiaries, as described in the Prospectus (as of the date such information is
given), and to the best of such
-16-
counsel's knowledge, such ownership is free and clear of any lien, claim or
encumbrance or any other claim of any third party (except for certain
obligations of the Company and its Subsidiaries as pursuant to their stock and
employee benefit plans). To the best of such counsel's knowledge, except as
referred to in the Prospectus, including options granted or to be granted
pursuant to stock and employee benefit plans described therein, there are no
outstanding warrants or options to purchase any shares of the capital stock of
the Company from the Company. There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any shares of the Common Stock, including any Common Stock issuable upon
conversion of any Offered Securities, in each case pursuant to the Company's
corporate charter or by-laws or any agreement or other instrument to which the
Company is a party known to such counsel;
(iii) To the best of such counsel's knowledge, there are no contracts
or other documents which are required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Securities Act or by the Rules
and Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by reference
under the Rules and Regulations;
(iv) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder;
(v) To the best of such counsel's knowledge and except as described
in the Registration Statement or the Prospectus, there are no agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Securities Act;
(vi) To the best of such counsel's knowledge, and other than as set
forth in the Registration Statement or the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its Subsidiaries
is a party or of which any material property or assets of the Company or any of
its Subsidiaries is the subject which, if determined adversely to the Company or
any of its Subsidiaries, would have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of operations,
business or prospects of the Company and its Subsidiaries; and to the best of
such counsel's knowledge, no such proceedings are threatened by governmental
authorities or threatened by others;
(vii) If the Offered Securities are Debt Securities: The Debt
Securities have been duly and validly authorized by the Company and, when duly
executed, issued and delivered by the Company, and authenticated by the Trustee
pursuant to the provisions of the
-17-
Indenture, against payment therefor as provided in this Agreement, will
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their terms, except as the enforceability thereof may be limited by applicable
bankruptcy laws and by general equitable principles (regardless of whether the
issue of enforceability is considered in a proceeding in equity or at law), and
the Debt Securities conform as to legal matters in all material respects to the
description thereof contained in the Prospectus.
(viii) If the Offered Securities are Debt Securities: The Indenture
has been duly authorized, executed and delivered by the Company, and (assuming
due execution and delivery by the Trustee) constitutes a valid and legally
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as the enforceability thereof may be limited by
applicable bankruptcy laws and by general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law); and the Indenture conforms as to legal matters in all material respects
to the description thereof contained in the Prospectus;
(ix) If the Offered Securities are shares of Common Stock: The
unissued shares of the Common Stock have been duly and validly authorized and,
when issued and delivered against payment therefor as provided in this
Agreement, such shares will be duly and validly issued, fully paid and non-
assessable; and the Common Stock conforms as to legal matters in all material
respects to the description thereof contained in the Prospectus;
(x) If the Offered Securities are convertible into shares of Common
Stock: The Common Stock reserved for issuance upon conversion of convertible
Debt Securities has been validly authorized and reserved for such purpose; and,
if and when any of such convertible Debt Securities are converted into shares of
Common Stock in accordance with the conversion rights so provided, such shares
of Common Stock will be validly issued, fully paid and non-assessable and
delivered in accordance with the terms of the Company's corporate charter and
by-laws;
(xi) This Agreement has been duly authorized, executed and delivered
by the Company;
(xii) The issue and sale of the Offered Securities being delivered on
the Closing Date by the Company and the compliance by the Company with all of
the provisions of this Agreement and the Indenture, and the consummation of the
transactions contemplated hereby and thereby, will not conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan agreement
or other agreement known to such counsel to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound or to which any of the property or assets of the Company or any of its
Subsidiaries is subject except for such conflicts, breaches, violations or
defaults which would not have a material adverse effect on the consolidated
financial condition, shareholders' equity, results of operations or business of
the Company and its Subsidiaries taken as a whole, nor will such actions result
in any violation of
-18-
the charter or by-laws of the Company or any provisions of any State or Federal
statute or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any of its
Subsidiaries or any of their respective material properties or assets (other
than statutes, orders, rules and regulations pertaining to securities laws
matters, which are addressed elsewhere in such opinion).
(xiii) Except for the registration of the Offered Securities under the
Securities Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, the Trust Indenture
Act and applicable state securities laws or by the National Association of
Securities Dealers, Inc., in connection with the purchase and distribution of
the Offered Securities by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of this
Agreement or the Indenture by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby.
(xiv) The Registration Statement was declared effective under the
Securities Act and the Indenture was qualified under the Trust Indenture Act as
of the date specified in such opinion, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424 specified in such opinion on
the date specified therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best of such counsel's
knowledge, no proceeding for that purpose is pending or threatened by the
Commission;
(xv) The statements contained in the Prospectus under the captions
relating to the Offered Securities insofar as they describe federal statutes,
rules and regulations, or portions thereof, constitute accurate descriptions
thereof in all material respects; and
(xvi) The Registration Statement, as of the Effective Date, and the
Prospectus, as of the date it was filed with the Commission and as of the
Closing Date, and any further amendments or supplements thereto made by the
Company prior to the applicable Closing Date (other than the financial
statements and related schedules therein and all other financial and statistical
data included therein or omitted therefrom and other than the Form T-1, as to
which such counsel need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations; and the Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and regulations
thereunder.
In rendering the foregoing opinions, such counsel may state that his
opinion is limited to matters governed by the federal laws of the United States
of America, the Delaware General Corporation Law and the laws of the
Commonwealth of Massachusetts.
In addition, such counsel shall also have furnished to the
Underwriters a written statement, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Underwriters, to the
effect that such counsel has acted as counsel to the Company in connection with
the preparation of the Registration Statement, and based on the
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foregoing, such counsel does not believe that (i) the Registration Statement
(other than the financial statements and related schedules and all other
financial and statistical data included or incorporated by reference therein or
omitted therefrom, and other than the Form T-1, as to which such counsel shall
express no opinion or belief), as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (other than the financial statements and
related schedules and all other financial and statistical data included or
incorporated by reference therein or omitted therefrom, and other than the Form
T-1, as to which such counsel shall express no opinion or belief), as of its
date and the applicable Closing Date, contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (ii) any document incorporated by
reference in the Prospectus (other than the financial statements and related
schedules and all other financial and statistical data included or incorporated
by reference therein or omitted therefrom, and other than the Form T-1, as to
which such counsel shall express no opinion or belief) contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The foregoing opinion and statement may be
qualified by statements to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for the
statements made in the Prospectus under the captions relating to the designated
Offered Securities and insofar as such statements relate to the Offered
Securities and concern legal matters.
(e) If the applicable Prospectus Supplement refers to an opinion of
tax counsel for the Company relating to tax matters concerning the Offered
Securities, the Company shall have furnished to the Underwriters an opinion of
such counsel, addressed to the Underwriters, dated the Closing Date, to the
effect that the opinion of such counsel referred to in the Prospectus is
confirmed.
(f) At the Closing Date, 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
Offered Securities as contemplated herein and in each Terms Agreement and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein and therein contained; and the Underwriters shall have received from
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Offered Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require.
(g) At the time of execution of each Terms Agreement, the
Underwriters shall have received from each of Xxxxxx Xxxxxxxx LLP and any other
accounting firm which has audited financial statements included in the
Registration Statement, letters, in form and substance satisfactory to the
Underwriters, addressed to the Underwriters and dated the date of such Terms
Agreement (i) confirming that they are independent public accountants with
respect to the
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Company or such other corporation, and their respective Subsidiaries, as the
case may be, within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating as of the date
thereof (or with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date thereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by "accountants' comfort letters" to
underwriters in connection with registered public offerings in accordance with
Statement of Auditing Standards No. 72.
(h) With respect to the letters of the accounting firms referred to
in the preceding paragraph and delivered to the Underwriters concurrently with
the execution of each Terms Agreement (the "initial letters"), the Company shall
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have furnished to the Underwriters letters (the "bring-down letters") of such
------------------
accountants, addressed to the Underwriters and dated the Closing Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five business days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letters and (iii)
confirming in all material respects the conclusions and findings set forth in
the initial letters.
(i) At each Closing Date, there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus as in effect at the time of execution of the applicable Terms
Agreement, any material adverse change in the consolidated financial condition,
stockholders' equity, results of operations or business of the Company and its
Subsidiaries taken as a whole, whether or not arising in the ordinary course of
business.
(j) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, Chief Executive
Officer, the President or a Vice President and the Treasurer or Secretary of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplements to the Prospectus and this Agreement and that, to the best of
such person's knowledge:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the date of the
certificate with the same effect as if made on the date of the certificate,
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
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(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to such person's knowledge, threatened; and
(iii) since the respective dates as of which information is
given in the Registration Statement and the Prospectus as in effect at the
time of execution of the applicable Terms Agreement, there has been no
material adverse change in the consolidated financial condition,
stockholders' equity, results of operations or business of the Company and
its Subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in such Prospectus.
(k) (i) Neither the Company nor any of its Subsidiaries shall
have sustained since the respective dates as of which information is given in
the Registration Statement and the Prospectus as in effect at the time of
execution of the applicable Terms Agreement, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, which is material to the Company and its Subsidiaries taken as a
whole, otherwise than as set forth, contemplated or incorporated by reference in
the Prospectus or in any of the documents incorporated by reference therein, or
(ii) since the date of the most recent financial statements of
the Company contained in the Registration Statement and the Prospectus as in
effect at the time of execution of the applicable Terms Agreement, there shall
not have been any change in the capital stock or consolidated long-term debt of
the Company, except as set forth in the letters described in paragraphs (g )
or (h ) of this Section 7, or any material adverse change in the general
affairs, operations, business, prospects, key personnel, capitalization,
financial condition, shareholders' equity or results of operations of the
Company and its Subsidiaries taken as a whole, otherwise than as set forth in or
contemplated by the Prospectus as in effect at the time of execution of the
applicable Terms Agreement, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Representatives or a majority in
interest of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Securities being delivered on such Closing Date on the terms and
in the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, (i) no downgrading shall have occurred in the rating
accorded the Company's securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's securities.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following:
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(i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the NASDAQ National Market or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction,
(ii) a general banking moratorium shall have been declared
by federal or New York state authorities;
(iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States; or
(iv) there shall have occurred such a material adverse
change in general economic or financial conditions (or such a material adverse
change in international conditions the effect of which on the financial markets
in the United States shall be such) as to make it, in the judgment of the
Representatives or a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering or delivery of
the Offered Securities being delivered on such Closing Date on the terms and in
the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters. The Company may rely on any waiver of such
conditions given by the Underwriters or counsel to the Underwriters as if given
by the Underwriters.
8. Indemnification and Contribution. (a) The Company shall indemnify
--------------------------------
and hold harmless each Underwriter, its officers and employees and each such
person, if any, who controls any Underwriter, within the meaning of the
Securities Act, from and against any and all loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to any losses, claims, damages, liabilities or actions relating to purchases and
sales of the Offered Securities), to which that Underwriter, officer, employee
or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon,
(i) any untrue statement or alleged untrue statement made by the
Company in Section 1 hereof ; or
(ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto; or
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(iii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in light of the
circumstances in which they were made) not misleading; or
(iv) any act or failure to act or any alleged act or failure to
act by any Underwriter in connection with, or relating in any manner to, the
Offered Securities or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (ii) or (iii) above (provided
that the Company shall not be liable under this clause (iv) to the extent that
it is determined in a final judgment by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly or indirectly
from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct or breach of this
Agreement);
and shall reimburse each Underwriter and each such officer, employee or
controlling person within 30 days after receiving written demand therefor for
any legal or other expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any such amendment or supplement in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company through any Underwriter by or on behalf of any Underwriter specifically
for inclusion therein; and provided, further, that the Company shall not be
liable to any Underwriter under the indemnity agreement in this subsection with
respect to any Preliminary Prospectus to the extent that any such loss, claim,
damage, liability or any action in respect thereof of such Underwriter results
from the fact that such Underwriter sold Offered Securities to a person as to
whom it shall be established that there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented in any case where such delivery is
required by the Securities Act if the Company has previously furnished copies
thereof in sufficient quantity to such Underwriter and the loss, claim, damage
or liability of such Underwriter results from an untrue statement or omission of
a material fact contained in the Preliminary Prospectus which was (i) identified
to such Underwriter at or prior to the earlier of the filing with the Commission
or the furnishing to such Underwriter of the Prospectus and (ii) corrected in
the Prospectus or in the Prospectus as then amended or supplemented. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Underwriter or to any officer, employee or controlling
person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and its officers and employees, each of their
respective directors, and each person, if any, who controls the Company within
the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
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not limited to, any losses, claims, damages, liabilities or actions relating to
the purchases and sales of Offered Securities), to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Underwriters by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse, within 30 days after receiving written demand
therefor, the Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that the
Representatives shall have the right to employ counsel to represent you and
those other Underwriters who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters against
the Company hereunder if, in your reasonable judgment, it is advisable for you
and those Underwriters to be represented by separate counsel, and in that event
the fees and expenses of such separate counsel shall be paid by the indemnifying
party or parties, and provided, further, in no event, shall the
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indemnifying party or parties be responsible for the expenses of more than one
separate counsel for all such indemnified parties.
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be 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 Offered Securities or
(ii) if the allocation provided by clause (i) above 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 fault of
the Company on the one hand and the Underwriters on the other with respect to
the statements or omissions which in such loss, claim, damage or liability, or
action in respect thereof, 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 with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Offered Securities purchased under this Agreement (before deducting expenses)
received by the Company on the one hand, and the total underwriting discounts
and commissions received by the Underwriters with respect to the Offered
Securities purchased under this Agreement, on the other, bear to the total gross
proceeds from the offering of the Offered Securities under this Agreement in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the 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, on the one hand,
or the Underwriters on the other, the intent of the parties and their relative
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 contributions pursuant to this
-26-
Section were to be 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 into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8 shall be deemed to include, for purposes of
this Section 8(d), 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 Section 8(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 8(d) are several in proportion to
their respective underwriting obligations and not joint. The provisions of this
Section 8(d) shall be applied separately to each offering of Offered Securities.
(e) The Underwriters severally confirm that the following statements
are correct and constitute information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus: (i) the legend in
the Prospectus concerning stabilization and over-allotment by the Underwriters,
(ii) the statements with respect to the public offering of the Offered
Securities by the Underwriters set forth on the cover page of the Prospectus and
(iii) the statements concerning concessions, allowances and reallowances set
forth under the caption "Underwriting" in the Prospectus.
9. Defaulting Underwriters. If on the applicable Closing Date, any
-----------------------
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase (in
addition to the amount of Offered Securities which such Underwriters are
obligated to purchase pursuant to Section 2) the Offered Securities which the
defaulting Underwriter agreed but failed to purchase on such Closing Date in the
respective proportions to the amount of Offered Securities set opposite the
names of each remaining non-defaulting Underwriter in Exhibit A to the
---------
applicable Terms Agreement bears to the amount of the Offered Securities set
opposite the names of all the remaining non-defaulting Underwriters in Exhibit A
---------
to the applicable Terms Agreement; provided, however, that the remaining non-
defaulting Underwriters shall not be obligated to purchase any of the Offered
Securities on such Closing Date if the total number of Offered Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 10% of the total amount of the Offered Securities to be purchased
on such Closing Date. If the foregoing maximum percentage is exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Underwriters who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Offered Securities to be purchased on such Closing Date. If the non-
defaulting Underwriters or the other underwriters satisfactory to the
Underwriters do not elect to purchase the Offered Securities
-27-
which the defaulting Underwriter or Underwriters agreed but failed to purchase,
this Agreement shall. terminate without liability on the part of any non-
defaulting Underwriter or the Company, except that the Company and the
Underwriters will continue to be liable for the payment of expenses to the
extent set forth in Sections 6 and 11 and continue to be liable under Section 8.
As used in this Agreement, the term "Underwriter" includes, for all purposes of
-----------
this Agreement unless the context requires otherwise, any party not listed in
Exhibit A to any applicable Terms Agreement who, pursuant to this Section 9,
---------
purchases Offered Securities which a defaulting Underwriter agreed but failed to
purchase. Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
underwriters are obligated or agree to purchase the Offered Securities of a
defaulting or withdrawing Underwriter, either the Underwriters or the Company
may postpone the applicable Closing Date for up to seven full business days in
order to effect any changes that in the reasonable opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement necessary to
consummate the transactions described herein.
10. Termination. Except as provided in the applicable Prospectus, the
-----------
obligations of the Underwriters under this Agreement may be terminated by the
Representatives or by Underwriters which have agreed to purchase in the
aggregate 50% or more of the aggregate amount of Offered Securities by notice
given to and received by the Company prior to delivery of and payment for the
Offered Securities if, prior to that time, any of the events described in
Sections 7(i), (k), (l) or (m) (but as to subsection (l) only, only if the
offering is of Debt Securities) shall have occurred or if the Underwriters shall
decline to purchase the Offered Securities for any reason permitted under this
Agreement.
11. Reimbursement of Underwriters' Expenses. If the Company shall fail
---------------------------------------
to tender the Offered Securities for delivery to the Underwriters by reason of
any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Offered Securities, and upon demand the Company shall pay the full amount
thereof to the Underwriters. If this Agreement is terminated pursuant to Section
9 by reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter for any of its expenses
incurred in connection with this Agreement.
12. Notices, etc. All statements, requests, notices and agreements
------------
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission, if Xxxxxx Brothers Inc. is one of the
Underwriters, c/x Xxxxxx Brothers Inc., Three World Financial Center, New York,
New York 10285, Attention: Syndicate Department (Fax: 000-000-0000), with a
copy, in the case of any notice pursuant to Section 8(c), to the Director of
Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., World Financial
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Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, and if Salomon Brothers Inc is one of
the Underwriters, c/o Salomon Brothers Inc, Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, Attention: Legal Department (Fax: 000-000-0000); and
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: General Counsel (Fax: (000) 000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
----------------------------------------
inure to the benefit of and be binding upon the Underwriters, the Company and
its successors. This Agreement and the terms and provisions hereof are for the
sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the Underwriters contained in
Section 8(b) of this Agreement shall be deemed to be for the benefit of the
directors of the Company, officers of the Company and any person controlling the
Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 13, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties
--------
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for any Offered Securities and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day," "Significant Subsidiary" and
--------------------------------------------------------------------
"Subsidiary." For purposes of this Agreement, (a) "business day" means any day
----------- ------------
on which the New York Stock Exchange, Inc. is open for trading, (b) "Subsidiary"
----------
has the meaning set forth in Rule 405 of the Rules and Regulations and (c)
"Significant Subsidiary" has the meaning set forth in Item 1-02(w) of the
-----------------------
Regulation S-X of the Rules and Regulations.
16. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of Massachusetts.
17. Counterparts. This Agreement may be executed in counterparts and,
------------
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original but all such counterparts shall together constitute
one and the same instrument.
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18. Headings. The headings herein are inserted for convenience of
--------
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Remainder of page intentionally left blank]
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If the foregoing correctly sets forth the agreement among the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
THERMO ELECTRON CORPORATION
By:
----------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
By:
-------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
-------------------------
Name:
Title:
