SENIOR DEBT SECURITIES DEBT WARRANTS WITH DEBT SUBORDINATED DEBT SECURITIES SECURITIES AS UNITS PREFERRED SHARES DEBT WARRANTS WITH PREFERRED COMMON SHARES SHARES AS UNITS DEBT WARRANTS
Exhibit 1(a)
FORM OF UNDERWRITING AGREEMENT
XXXXX CORPORATION
SENIOR DEBT SECURITIES | DEBT WARRANTS WITH DEBT | |
SUBORDINATED DEBT SECURITIES | SECURITIES AS UNITS | |
PREFERRED SHARES | DEBT WARRANTS WITH PREFERRED | |
COMMON SHARES | SHARES AS UNITS | |
DEBT WARRANTS |
1. Introductory. Xxxxx Corporation, an Ohio corporation (“Company”), proposes to issue and
sell from time to time:
(a) certain of its debt securities registered under the registration statement
referred to in Section 2(a) (“Registered Debt Securities”). The Registered Debt
Securities will be issued under an indenture dated as of April 1, 1994 (“Senior
Indenture”) for the issuance of the Company’s senior debt securities (“Senior Debt
Securities”), between the Company and JPMorgan Chase Bank, as Trustee (“Senior
Trustee”), or an indenture (“Subordinated Indenture”) for the issuance of the
Company’s subordinated debt securities (“Subordinated Debt Securities”), between the
Company and the organization to be named therein upon execution thereof, as Trustee
(“Subordinated Trustee”), each in one or more series, each of which such series may
vary as to interest rates, maturities, redemption provisions, selling prices, terms
of conversion, in the case of Subordinated Debt Securities, if any (“Convertible
Subordinated Debt Securities”), and other terms, with all such terms for any
particular series of the Registered Debt Securities being determined at the
Applicable Time (as defined below). Particular series of the Registered Debt
Securities will be sold pursuant to a Terms Agreement referred to in Section 3, for
resale in accordance with terms of offering determined at the Applicable Time. For
the purposes of this Agreement, the “Applicable Time” is the time so specified in
the applicable Terms Agreement (as defined in Section 3 below);
(b) certain of its shares of preferred stock registered under the registration
statement referred to in Section 2(a) (“Registered Preferred Shares”). The
Registered Preferred Shares may be issued in one or more series, which series may
vary as to dividend rates, redemption provisions, terms of conversion, selling
prices and other terms, with all such terms for any particular series of the
Registered Preferred Shares being determined at the Applicable Time. Particular
series of the Registered Preferred Shares will be sold pursuant to a Terms
Agreement referred to in Section 3, for resale in accordance with terms of
offering determined at the Applicable Time;
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(c) certain of its common shares (“Common Shares”) registered under the
registration statement referred to in Section 2(a) (“Registered Common Shares”).
Particular offerings of the Registered Common Shares will be sold pursuant to a
Terms Agreement referred to in Section 3, for resale in accordance with terms of
offering determined at the Applicable Time; and
(d) certain of its debt warrant securities registered under the registration
statement referred to in Section 2(a) (“Registered Debt Warrant Securities”). The
Registered Debt Warrant Securities will be issued under a debt warrant agreement
(“Debt Warrant Agreement”) between the Company and the organization to be named
therein upon the execution thereof, as Debt Warrant Agent, in one or more series,
which series may vary as to expiration date, conversion terms, premium price, if
any, and other terms, with all such terms for any particular series of the
Registered Debt Warrant Securities being determined at the time of sale. Particular
series of the Registered Debt Warrant Securities will be sold pursuant to a Terms
Agreement referred to in Section 3, for resale in accordance with terms of offering
determined at the Applicable Time.
The Registered Debt Securities, Registered Preferred Shares, Registered Common Shares,
Registered Debt Warrant Securities, Registered Debt Warrants with Debt Securities as Units and
Registered Debt Warrants with Preferred Shares as Units are collectively referred to herein as the
“Registered Securities”. The Registered Securities (including any combination of such securities)
offered in any such offering are hereinafter referred to as the “Securities”. The firm or firms
which agree to purchase the Securities are hereinafter referred to as the “Underwriter” or
“Underwriters” of such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter referred to as the
“Representatives”; provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term “Representatives”, as used in this Agreement (other
than in Sections 2(e), 5(c) and 7 and the second sentence of Section 3), shall mean the
Underwriters.
It is understood that the Company may from time to time agree to sell Securities to a certain
firm or firms (“Manager” or “Managers”) outside the United States and Canada, such Manager or
Managers to be specified in, and said Securities to be sold pursuant to, a Terms Agreement (such
Terms Agreement being referred to therein by such Managers as a Subscription Agreement). As used
herein, the terms Underwriter and Underwriters are deemed to include, unless the context otherwise
specifies or requires, the Manager or Managers. The Underwriters and Managers (or Underwriter and
Manager) may provide for the coordination of their activities by entering into an Agreement between
U.S. Underwriters and Managers which may permit them, among other things, to sell Securities to
each other for purposes of resale. As used herein the term “United States” shall mean the United
States of America (including the States and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction and “Canada” means Canada, its provinces,
territories and possessions and other areas subject to its jurisdiction.
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2. Representations and Warranties of the Company. The Company represents and warrants to, and
agrees with, each Underwriter and each Manager that:
(a) An “automatic effective registration statement” as defined under Rule 405
of the Securities Act of 1933, as amended (the “Act”), on
Form S-3 (File No. 333-•)
in respect of the Securities has been filed with the Securities and Exchange
Commission (the “Commission”) not earlier than three years prior to the date hereof;
such registration statement, and any post-effective amendment thereto, became
effective on filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission and no notice of
objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been
received by the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission
on or prior to the date of the Terms Agreement, is hereinafter called the “Basic
Prospectus”.
Any Preliminary Prospectus (including any preliminary prospectus supplement)
relating to the Securities offered pursuant to a Terms Agreement (the “Offered
Securities”) filed with the Commission pursuant to Rule 424(b) under the Act is
hereinafter called a “Preliminary Prospectus”. The various parts of such
registration statement, including all exhibits thereto but excluding Form T-1 and
including any prospectus supplement or Term Sheet relating to the Offered Securities
that is filed with the Commission and deemed by virtue of Rule 430B to be part of
the Registration Statement, each as amended at the time such part of the
Registration Statement became effective, are hereinafter collectively called the
“Registration Statement”.
The Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time, is hereinafter called the “Pricing Prospectus”. The form of the
final prospectus relating to the Offered Securities filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”, [including such Prospectus relating to the
Securities to be sold by the Company to the Manager or Managers outside the United
States and Canada which will be identical to the Prospectus except as provided in
such Terms Agreement (the “International Prospectus” and collectively the Prospectus
and International Prospectus are hereinafter referred to as the “Prospectuses”.)]
Any reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any post-effective amendment
to the Registration Statement, any prospectus supplement relating to the Securities
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filed with the Commission pursuant to Rule 424(b) under the Act and any documents
filed under the Securities Exchange Act of 1934, as amended (the “Securities
Exchange Act”), and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be. Any
reference to any amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in Rule 433(h)(1) under the Act relating
to the Securities is hereinafter called an “Issuer Free Writing Prospectus”).
(b) No order preventing or suspending the use of any Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), if applicable, and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
(c) The Pricing Prospectus as supplemented by the Issuer Free Writing
Prospectuses and other documents listed in Schedule I(a) to the Terms Agreement,
taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable
Time, did not include any 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, not misleading; and each Issuer Free
Writing Prospectus listed on Schedule I(a) or Schedule I(b) to the Terms Agreement
does not conflict with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and International Prospectus, as the case may
be, and each such Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable Time, did not
include any 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, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the Representatives
expressly for use therein.
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectuses, when they became effective or were filed with the
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Commission, as the case may be, conformed in all material respects to the requirements of the Act or
the Securities Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder (or, if the International Prospectus and each related
Preliminary Prospectus is not filed with the Commission, first used by the Managers)
and (in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will conform at all
times in all material respects during the period specified in Section 4(b) hereof,
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; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein; and no such
documents were filed with the Commission since the Commission’s close of business on
the business day immediately prior to the date of the Terms Agreement, except as set
forth on Schedule I(c) or such other documents as were delivered prior to the
Applicable Time.
(e) The Registration Statement and the Pricing Prospectus conform, and the
Prospectus and International Prospectus, as the case may be, and any further
amendments or supplements to the Registration Statement and the Prospectus and
International Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act, if applicable, and the rules and regulations
of the Commission thereunder and do not and will not, as of the applicable effective
date as to each part of the Registration Statement and as of the applicable filing
date as to the Prospectus and International Prospectus, as the case may be, 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 or necessary to make the
statements therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by (i) the Trustee
in its Form T-1 (Statement of Eligibility of Trustee) filed with the Registration
Statement, (ii) any Underwriter through the Representatives expressly for use in the
Prospectus and (iii) any Manager specifically for use in the International
Prospectus.
(f) To the best knowledge of the Company, there is no existing or imminent
labor dispute or organizational effort by the employees of the Company or any of its
subsidiaries (as defined in subsection (i)) or any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary’s principal suppliers,
contractors or customers that is reasonably expected to have a material adverse
effect upon the business, properties, financial condition, results of operations or
prospects of the Company and its Subsidiaries taken as a whole.
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(g) Except as disclosed in (or incorporated by reference in) the Registration
Statement and the Pricing Prospectus and except as is not reasonably expected to
have a material adverse effect upon the business, properties, financial condition,
results of operations or prospects of the Company and its Subsidiaries taken as a
whole, each of the Company and its Subsidiaries is in compliance with all applicable
Environmental Laws. As used herein, “Environmental Laws” means any United States or
Canadian, federal, state, local or municipal statute, law, rule, regulation,
ordinance, judicial or administrative order, consent decree or judgment, relating to
the protection of the environment, the protection of public health and safety from
environmental concerns or the protection of worker health and safety.
(h) Neither the Company nor any of its Subsidiaries (as defined in Rule 1.02(x)
of Regulation S-X) (each a “Subsidiary” and, collectively, the “Subsidiaries”) is in
violation of its articles or certificate of incorporation or regulations or bylaws
or in default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its Subsidiaries taken as
a whole.
(i) Except as described in (or incorporated by reference in) the Registration
Statement, the Pricing Prospectus and each Prospectus or International Prospectus,
there has not been any material adverse change in, or any adverse development which
materially affects, the business, properties, financial condition, results of
operations or prospects of the Company and its Subsidiaries taken as a whole from
the dates as of which information is given in the Registration Statement, the
Pricing Prospectus and each Prospectus and International Prospectus.
(j) Ernst & Young LLP, whose report appears in the Company’s most recent Annual
Report on Form 10-K which is incorporated by reference in the Registration
Statement, the Pricing Prospectus and each Prospectus and International Prospectus
and who have certified and examined certain financial statements of the Company and
its Subsidiaries and have audited the Company’s internal control over financial
reporting and management’s assessment thereof, are independent public accountants as
required by the Act and the Rules and Regulations.
(k) The Company maintains a system of internal control over financial reporting
(as such term is defined in Rule 13a-15(f) of the Securities Exchange Act) that
complies with the requirements of the Securities Exchange Act and has been designed
by the Company’s principal executive officer and principal financial officer, or
under their supervision, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. Except as
disclosed in the Pricing Prospectus, the Company’s internal control over financial
reporting is effective and the Company
7
is not aware of any material weaknesses in its internal control over financial
reporting.
(l) Except as disclosed in the Pricing Prospectus, since the date of the latest
audited financial statements included or incorporated by reference in the Pricing
Prospectus, there has been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting.
(m) The Company maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) of the Securities Exchange Act) that comply with the
requirements of the Securities Exchange Act; such disclosure controls and procedures
have been designed to ensure that material information relating to the Company and
its Subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; such disclosure
controls and procedures are effective.
(n) The Company and [Xxxxxx-Xxxxxx, Co., Xxxxx Administration Corporation,
Xxxxx MDH Co. Inc., Xxxxx Aeroquip, Inc., Xxxxx Electrical de Puerto Rico Inc.,
Eaton Limitada, Eaton Yale Ltd., Eaton Offshore Ltd. and Xxxxx Electrical Inc.]
(each a “Significant Subsidiary”, which together constitute all of the significant
subsidiaries (as defined in Rule 1.02(w) of Regulation S-X) of the Company) have
each been duly incorporated, are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each jurisdiction in
which their respective ownership of property or the conduct of their respective
businesses requires such qualification (except where the failure to so qualify would
not have a material adverse effect upon the Company and its Subsidiaries taken as a
whole), and have power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged. All of the
issued and outstanding stock of each Significant Subsidiary has been duly authorized
and validly issued and is fully paid and nonassessable. The Company owns all of
the issued and outstanding shares of each Significant Subsidiary, directly or
through one or more Subsidiaries, except to the extent of shares owned of record by
directors for the purpose of qualification as such, free and clear of any pledges,
liens, encumbrances, claims or equities.
(o) Except as described in (or incorporated by reference in) the Pricing
Prospectus, there is no material litigation or governmental proceeding pending or,
to the knowledge of the Company, threatened against the Company or any of its
Subsidiaries which is reasonably expected by the Company to result in any material
adverse change in the business, properties, financial condition, results of
operations or prospects of the Company and its Subsidiaries taken as a whole or
which is required to be disclosed (or incorporated by reference in) the Registration
Statement.
8
(p) The financial statements filed as part of, or incorporated by reference in,
the Registration Statement or the Pricing Prospectus or included in, or incorporated
by reference in, any Preliminary Prospectus, Prospectus or International Prospectus
present, or (in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will present, at all
times during the period specified in Section 4(b) hereof, fairly, 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 and (in the case of any
amendment or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date as of which
this representation is being made) will be, at all times during the period specified
in Section 4(b) hereof, prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved, except as
otherwise disclosed in such financial statements.
The unaudited pro forma financial information, if any, filed as a part of, or
incorporated by reference in, the Registration Statement or the Pricing Prospectus
or included in, or incorporated by reference in, any Preliminary Prospectus,
Prospectus or International Prospectus present, or (in the case of any amendment or
supplement to any such document, or any material incorporated by reference in any
such document, filed with the Commission after the date as of which this
representation is made) will present, at all times during the period specified in
Section 4(b) hereof, fairly, on the basis set forth in any such document, the
information set forth therein, has been prepared in accordance with the Rules and
Regulations and the guidelines of the Commission with respect to pro forma financial
information, has been properly compiled on the pro forma bases set forth therein,
the assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or circumstances
referred to therein.
(q) There are no contracts or other documents which are required to be filed as
exhibits to the Registration Statement or the Pricing Prospectus by the Act or by
the Rules and Regulations, or which were required to be filed as exhibits to any
document incorporated by reference in any Prospectus or International Prospectus by
the Securities Exchange Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the Registration Statement or
the Pricing Prospectus or to such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and regulations of the
Commission under the Securities Exchange Act as required.
(r) The Company is not, and after giving effect to the offering and sale of the
Securities, will not be an “investment company”, as such term is defined in the
United States Investment Company act of 1940, as amended (the “Investment Company
Act”).
9
(s) (A) (i) At the time of filing the Registration Statement, (ii) at the time
of the most recent amendment thereto filed prior to the date hereof for the purposes
of complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d)
of the Securities Exchange Act or form of prospectus), and (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer”
as defined in Rule 405 under the Act, including not having been an “ineligible
issuer” as defined in Rule 405 of the Act; and (B) at the earliest time after the
filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the
Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under
the Act.
(t) The Company acknowledges and agrees that each of the Underwriters is acting
solely in the capacity of an arm’s-length contractual counterparty to the Company
with respect to the offering of any Securities contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representatives nor any of the other Underwriters is
advising the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such
Representative or Underwriter has advised or is advising the Company on other
matters). The Company has consulted with its own advisors concerning such matters
and shall be responsible for making its own independent investigation and appraisal
of the transactions contemplated by a Terms Agreement, and the Underwriters shall
have no responsibility or liability to the Company or any other person with respect
thereto. Any review by the Underwriters of the Company, the transactions
contemplated by a Terms Agreement or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
(u)
with respect to all Securities which are Senior Debt Securities —
(i) The Senior Indenture, including any amendments and supplements
thereto, pursuant to which the Senior Debt Securities will be issued, will
conform with the requirements of the Trust Indenture Act on the Closing Date
(as defined in Section 3 hereof).
(ii) The execution, delivery and performance by the Company of this
Agreement and any Delayed Delivery Contracts (as defined in Section 3
hereof) and compliance by the Company with the provisions contained herein,
in the Senior Debt Securities and in the Senior Indenture will not conflict
with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the respective assets of the Company
10
or any of its Subsidiaries pursuant to the terms of, or constitute a
default under, any material agreement, indenture or instrument, or result in
a violation of the articles or certificate of incorporation or regulations,
as amended, of the Company or any of its Subsidiaries or any law, order,
rule or regulation of any court or governmental agency having jurisdiction
over the Company, any of its Subsidiaries or their respective properties;
and, except as required by the Act, the Trust Indenture Act, the Securities
Exchange Act and applicable state securities laws or foreign laws, no
consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the issuance and sale of the
Senior Debt Securities or the execution, delivery and performance of this
Agreement, the Delayed Delivery Contracts, if any, and the Senior Indenture.
(iii) On the Closing Date, (A) the Senior Indenture will have been duly
authorized, executed and delivered by the Company and will constitute the
legally binding obligation of the Company, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law), (B) the Senior Debt Securities will have been validly authorized
and, when duly executed, authenticated and delivered in accordance with the
Senior Indenture, upon payment thereof as provided in this Agreement, will
be validly issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the Senior Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (C) the Senior Debt
Securities and the Senior Indenture will conform in all material respects to
the descriptions thereof contained in the Prospectus and International
Prospectus.
(v)
with respect to all Securities which are Subordinated Debt Securities
—
(i) The Subordinated Indenture, including any amendments and
supplements thereto, pursuant to which the Subordinated Debt Securities will
be issued, will conform with the requirements of the Trust Indenture Act on
the Closing Date.
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(ii) The execution, delivery and performance by the Company of this
Agreement and any Delayed Delivery Contracts and compliance by the Company
with the provisions contained herein, in the Subordinated Debt Securities
and in the Subordinated Indenture will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any of the
respective assets of the Company or any of its Subsidiaries pursuant to the
terms of, or constitute a default under, any material agreement, indenture
or instrument, or result in a violation of the articles or certificate of
incorporation or amended regulations of the Company or any of its
Subsidiaries or any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of its
Subsidiaries or their respective properties; and, except as required by the
Act, the Trust Indenture Act, the Securities Exchange Act and applicable
state securities laws or foreign laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is
required for the issuance and sale of the Subordinated Debt Securities or
the execution, delivery and performance of this Agreement, the Delayed
Delivery Contracts, if any, and the Subordinated Indenture.
(iii) On the Closing Date, (A) the Subordinated Indenture will have
been validly authorized, executed and delivered by the Company and will
constitute the legally binding obligation of the Company, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), (B) the Subordinated Debt
Securities will have been validly authorized and, when duly executed,
authenticated and delivered in accordance with the Subordinated Indenture,
upon payment therefor as provided in this Agreement, will be validly issued
and outstanding, and will constitute legally binding obligations of the
Company entitled to the benefits of the Subordinated Indenture, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (C) the Subordinated
Debt Securities and the Subordinated Indenture will conform in all material
respects to the descriptions thereof contained in the U.S. Prospectus and
International Prospectus.
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(w) with respect to all Securities which are Convertible Subordinated Debt
Securities —
(i) On the Closing Date, the Company will have reserved and will, at
all times, keep available for issuance upon the conversion of the
Convertible Subordinated Debt Securities such number of its authorized but
unissued Common Shares deliverable upon conversion of the Convertible
Subordinated Debt Securities as will be sufficient to permit the conversion
in full of all outstanding Convertible Subordinated Debt Securities.
(ii) On the Closing Date, the Common Shares will conform in all
material respects to the description thereof contained in the Prospectus and
International Prospectus.
(iii) All corporate action required to be taken for the authorization,
issuance and delivery of the Common Shares issuable upon conversion of the
Convertible Subordinated Debt Securities has been validly taken; when issued
and delivered in accordance with the terms of the Convertible Subordinated
Indenture, such Common Shares will be validly issued, fully paid and
nonassessable; and the issuance of the Convertible Subordinated Debt
Securities is not, and the issuance of any such Common Shares will not be,
subject to the preemptive rights of any stockholder of the Company.
(x) with respect to all Securities which are Registered Debt Warrant Securities
—
(i) The Senior Indenture, including any amendments and supplements
thereto, pursuant to which the Senior Debt Securities will be issued upon
exercise of the Registered Debt Warrant Securities, will conform with the
requirements of the Trust Indenture Act on the Closing Date.
(ii) The Subordinated Indenture, including any amendments and
supplements thereto, pursuant to which the Subordinated Debt Securities will
be issued upon exercise of the Registered Debt Warrant Securities, will
conform with the requirements of the Trust Indenture Act on the Closing
Date.
(iii) The authorization, creation, issuance and sale of the Registered
Preferred Shares to be issued upon the exercise of the Registered Debt
Warrant Securities and compliance by the Company with all of the provisions
of the Certificate of Designations are within the corporate powers of the
Company.
(iv) On the Closing Date, the Registered Preferred Shares will have
been validly authorized and, when duly executed, authenticated and
13
delivered, upon payment therefor as provided in this Agreement, will be
validly issued, fully paid and nonassessable.
(v) The execution, delivery and performance by the Company of this
Agreement and any Delayed Delivery Contracts and compliance by the Company
with the provisions contained herein, in the Registered Debt Warrant
Securities, in the Registered Debt Securities issuable upon exercise of the
Registered Debt Warrant Securities, in the Debt Warrant Agreement, in the
Senior Indenture, in the Subordinated Indenture, in the Registered Preferred
Shares issuable upon the exercise of the Registered Debt Warrant Securities
and in the Certificate of Designations will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any of the
respective assets of the Company or any of its Subsidiaries pursuant to the
terms of, or constitute a default under, any material agreement, indenture
or instrument, or result in a violation of the articles or certificate of
incorporation or amended regulations of the Company or any of its
Subsidiaries or any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of its
Subsidiaries or their respective properties; and, except as required by the
Act, the Trust Indenture Act, the Securities Exchange Act and applicable
state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
issuance and sale of the Registered Debt Warrant Securities and the
Registered Debt Securities and Registered Preferred Shares issuable upon
exercise of the Registered Debt Warrant Securities or the execution,
delivery and performance of this Agreement, the Delayed Delivery Contracts,
if any, the Debt Warrant Agreement, the Senior Indenture and the
Subordinated Indenture.
(vi) On the Closing Date, (A) the Debt Warrant Agreement and the Senior
Indenture will have been validly authorized, executed and delivered by the
Company and will constitute the legally binding obligation of the Company,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), (B) the Registered Debt
Warrant Securities will have been validly authorized and, when duly
executed, authenticated and delivered in accordance with the Subordinated
Indenture, upon payment therefor as provided in this Agreement, will be
validly issued and outstanding, and will constitute legally binding
obligations of the Company, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof
is subject to
14
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), (C) the Registered Debt
Warrant Securities, the Debt Warrant Agreement, the Registered Debt
Securities and the Registered Preferred Shares issuable upon the exercise of
the Registered Debt Warrant Securities, the Senior Indenture and the
Subordinated Indenture will conform in all material respects to the
descriptions thereof contained in the Prospectus and International
Prospectus and (D) the Senior Debt Securities and the Subordinated Debt
Securities issuable upon the exercise of the Registered Debt Warrant
Securities will have been validly authorized and, when issued and delivered
in accordance with the terms of the Registered Debt Warrant Securities, the
Senior Indenture or the Subordinated Indenture, respectively, will be
validly issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the Senior Indenture
and the Subordinated Indenture, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(y)
with respect to all Securities which are Registered Preferred Shares
—
(i) The execution, delivery and performance by the Company of this
Agreement and any Delayed Delivery Contracts and compliance by the Company
with the provisions contained herein, in the Registered Preferred Shares and
in the Certificate of Designations will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any of the
respective assets of the Company or any of its Subsidiaries pursuant to the
terms of, or constitute a default under, any material agreement, indenture
or instrument, or result in a violation of the articles or certificate of
incorporation or amended regulations of the Company or any of its
Subsidiaries or any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of its
Subsidiaries or their respective properties, and, except as required by the
Act, the Securities Exchange Act and applicable state securities laws or
foreign laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
issuance and sale of the Registered Preferred Shares, or the execution,
delivery and performance of this Agreement or the Delayed Delivery
Contracts, if any.
(ii) The authorization, creation, issuance and sale of the Registered
Preferred Shares and compliance by the Company with all of
15
the provisions of the Certificate of Designations are within the
corporate powers of the Company.
(iii) On the Closing Date, the Registered Preferred Shares will have
been validly authorized and, when duly executed, authenticated and
delivered, upon payment therefor as provided in this Agreement, will be
validly issued, fully paid and nonassessable.
(iv) If the Registered Preferred Shares are convertible into Common
Shares, on the Closing Date any Common Shares issuable upon conversion of
the Registered Preferred Shares will have been duly authorized by the
Company and, when issued and delivered in accordance with the Registered
Preferred Shares and the Certificate of Designations, will be validly
issued, fully paid and nonassessable.
(v) If the Registered Preferred Shares are convertible into Common
Shares, on the Closing Date the Company will have reserved and will, at all
times, keep available for issuance upon the conversion of the Registered
Preferred Shares such number of its authorized but unissued Common Shares
deliverable upon conversion of the Registered Preferred Shares as will be
sufficient to permit the conversion in full of all outstanding Registered
Preferred Shares.
(vi) All corporate action required to be taken for the authorization,
issuance and delivery of any shares of Common Shares issuable upon
conversion of the Registered Preferred Shares has been validly taken, and
the issuance of the Registered Preferred Shares is not, and the issuance of
any such shares of Common Shares will not be, subject to any preemptive
rights of any stockholder of the Company.
(z)
with respect to all Securities which are Registered Common Shares
—
(i) The execution, delivery and performance by the Company of this
Agreement and compliance by the Company with the provisions contained
herein, will not conflict with, result in the creation or imposition of any
lien, charge or encumbrance upon any of the respective assets of the Company
or any of its Subsidiaries pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument, or result in a
violation of the articles or certificate of incorporation or amended
regulations of the Company or any of its Subsidiaries or any law, order,
rule or regulation of any court or governmental agency having jurisdiction
over the Company, any of its Subsidiaries or their respective properties,
and, except as required by the Act, the Securities Exchange Act and
applicable state securities laws or foreign laws, no consent, authorization
or order of, or filing or registration with, any court or governmental
agency is required for the issuance and
16
sale of the Registered Common Shares, or the execution, delivery and
performance of this Agreement.
(ii) All corporate action required to be taken for the authorization,
issuance and delivery of the Registered Common Shares has been validly
taken, and the issuance of the Registered Common Shares is not, and will not
be, subject to any preemptive rights of any stockholder of the Company.
(iii) There is and has been no failure on the part of the Company or
any of the Company’s directors or officers, in their capacities as such, to
comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx
Act”), including Section 402 related to loans and Sections 302 and 906
related to certifications.
Any certificate signed by any officer of the Company and delivered to the Representatives, the
Managers or to counsel for the Underwriters pursuant to this Agreement shall be deemed to be a
representation and warranty by the Company to each Underwriter (or each Manager) as to the matters
covered thereby.
3. Purchase and Offering of Securities. The obligation of the Underwriters, if any, and the
obligation of the Managers, if any, to purchase the Securities will be evidenced by an exchange of
facsimile or other written communications (“Terms Agreement”) comprising part of the Pricing
Disclosure Package at the Applicable Time. All references herein to this Agreement include the
applicable Terms Agreement. The Terms Agreement will incorporate by reference the provisions of
this Agreement, except as otherwise provided therein, and will specify the firm or firms which will
be Underwriters or Managers, the names of any Representatives, the principal amount or number of
shares to be purchased by each Underwriter and Manager, and the purchase price to be paid by the
Underwriters and Managers and, if the Securities include Registered Debt Securities, Registered
Preferred Shares, Registered Common Shares, Registered Debt Warrant Securities, Registered Debt
Warrants with Debt Securities as Units or Registered Debt Warrants with Preferred Shares as Units,
the terms of such Securities not already specified in the Indenture, Certificate of Designations or
Debt Warrant Agreement, respectively, including, but not limited to, interest or dividend rate,
maturity, redemption provisions and sinking fund requirements, whether any of the Securities may be
sold to institutional investors pursuant to Delayed Delivery Contracts (as defined below),
expiration date and conversion terms (if any such terms are to be applicable). If the Company
grants the Underwriters (or Managers) an option to purchase additional Securities to cover
over-allotments, the terms of such option (or options) will be specified in the Terms Agreement.
The Terms Agreement will also specify the time and date of delivery and payment (such time and
date, or such other time not later than seven full business days thereafter as the Representatives
(and the Managers) and the Company agree as the time for payment and delivery, being herein and in
the Terms Agreement referred to as the “Closing Date”), the place of delivery and payment and any
details of the terms of offering that should be reflected in the Pricing Prospectus relating to the
offering of the Securities.
17
The obligations of the Underwriters and Managers to purchase the Securities will be several
and not joint. It is understood that the Underwriters and Managers propose to offer the Securities
for sale as set forth in the Prospectus and International Prospectus, respectively. The
certificates for the Securities delivered to the Underwriters and Managers on the Closing Date will
be in definitive form and, if applicable, fully registered form and in such denominations, and will
be registered in such names, as the Underwriters and Managers may reasonably request.
If the Terms Agreement provides for sales of Securities pursuant to delayed delivery
contracts, the Company authorizes the Underwriters (and the Managers) to solicit offers to purchase
Securities pursuant to delayed delivery contracts substantially in the form of Annex I attached
hereto (“Delayed Delivery Contracts”) with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and educational and
charitable institutions. On the Closing Date the Company will pay, as compensation, to the
Representatives for the accounts of the Underwriters (and to the Managers, if applicable), the fee
set forth in such Terms Agreement in respect of the principal amount or number of shares of
Securities to be sold pursuant to Delayed Delivery Contracts (“Contract Securities”). The
Underwriters (and Managers) will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters (and Managers) and the aggregate principal amount or number of shares of
Securities to be purchased will be reduced pro rata in proportion of the aggregate principal amount
or number of shares of Securities set forth opposite each Underwriter’s (and Manager’s) name in
such Terms Agreement, except to the extent that the Representatives (or Managers) determine and
agree that such reduction shall be otherwise than pro rata and so advise the Company. The Company
will advise the Representatives (and Managers) not later than the business day prior to the Closing
Date of the principal amount or number of shares of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the several Underwriters that
it will furnish to Shearman & Sterling LLP, counsel for the Underwriters, as many signed copies of
the registration statement as they may reasonably request relating to the Registered Securities,
including all exhibits, in the form in which it became effective and of all amendments thereto and
that, in connection with each offering of Securities:
(a) If required by Rule 430B(h) under the Act, the Company will prepare the
Prospectus and International Prospectus each in a form to which the Underwriters
shall not reasonably object. The Company will file such form of prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on
the second business day following the execution and delivery of the Terms Agreement
and will make no further amendment or supplement to such form of prospectus which
shall be disapproved by the Underwriters promptly after reasonable notice thereof;
if the Securities to be purchased by the Managers are to be registered under the
Registration Statement, the Company will file such form of prospectus pursuant to Rule 424(b) under the Act, not later than the
Commission’s close of business on the second business day following the
18
execution
and delivery of the Subscription Agreement and will make no further amendment or
supplement to such form of prospectus which shall be disapproved by the Underwriters
promptly after reasonable notice thereof.
(b) The Company will, during the period following the date of the Terms
Agreement as, in the opinion of counsel for the Underwriters, any Prospectus or
International Prospectus is required by law to be delivered, advise the
Representatives (and Managers) promptly of any proposal to amend or supplement the
Registration Statement, the Basic Prospectus or the Prospectus or International
Prospectus, will furnish the Representatives (and Managers) with copies of any such
amendment or supplement or other documents proposed to be filed within a reasonable
time in advance of filing, and will afford the Representatives (and Managers) a
reasonable opportunity to comment upon any such proposed amendment or supplement or
other documents; and the Company will also advise the Representatives (and Managers)
promptly of the filing of any such amendment or supplement.
(c) The Company will advise the Representatives (and Managers) (i) of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued, (ii) when any post-effective amendment to the Registration
Statement relating to or covering the Securities becomes effective, (iii) of any
request or proposed request by the Commission for (A) an amendment or supplement to
the Registration Statement (insofar as the amendment or supplement relates to or
covers the Securities), the Prospectus or International Prospectus or any document
incorporated by reference in any of the foregoing or (B) any additional information
and (iv) of receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction or
the initiation or threat of any proceeding for that purpose.
(d) If, at any time when a prospectus relating to the Securities is required to
be delivered under the Act (or in lieu thereof, the notice referred to in Rule
173(a) under the Act), any event occurs as a result of which the Prospectus or
International Prospectus, as the case may be, as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if in the reasonable judgment of the
Underwriters (reasonably concurred in by the Company) it shall be necessary or
desirable during such period to amend or supplement the Prospectus or International
Prospectus or to file under the Securities Exchange Act any document incorporated by
reference in the Prospectus or International Prospectus in order to comply with the
Act, the Securities Exchange Act or the Trust Indenture Act, if applicable, the
Company promptly will prepare and file with the
Commission, subject to subsection 4(b) hereof, an amendment or supplement which
will correct such statement or omission or otherwise amend or supplement
19
(e) As soon as practicable after the date of each Terms Agreement, but in any
event not later than 18 months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), the Company will make generally
available to its securityholders an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective date of the registration
statement relating to the Registered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become effective
prior to the date of such Terms Agreement and (iii) the date of the Company’s most
recent Annual Report on Form 10-K filed with the Commission prior to the date of
such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(f) The Company will furnish to the Representatives (and Managers) copies of
the Registration Statement (including all exhibits, the form of Senior Indenture,
the form of Subordinated Indenture, the form of Debt Warrant Agreement, the form of
Certificate of Designations and this Agreement), any related Preliminary Prospectus,
the Prospectus and International Prospectus and all amendments and supplements to
such documents, in each case, in such quantities as are reasonably requested and as
soon as available, and, in the case of the Prospectus and the International
Prospectus, to use its best efforts to make available copies thereof not later than
12:00 noon, New York City time, on the business day next succeeding the date of the
applicable Terms Agreement.
(g) The Company will arrange for the qualification of the Securities for sale
under the securities laws of such jurisdictions in the United States and Canada as
the Representatives may reasonably designate and will continue such qualifications
in effect so long as required for the distribution.
(h) During the period of five years after the date of any Terms Agreement, the
Company will furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy of
its annual report to stockholders for such year; and the Company will furnish to the
Representatives (and Managers) (i) as soon as publicly available, a copy of each
report or definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act, or mailed to stockholders and (ii) from time to time,
such other publicly available information concerning the Company as the
Representatives (and Managers) may reasonably request.
(i) The Company will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse the Underwriters for any
expenses (including reasonable fees and disbursements of counsel) incurred by
20
them in connection with qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives (and Managers) may reasonably designate and the
printing of memoranda relating thereto, for the cost of the preparation, printing
and filing under the Act of the Registration Statement, any Preliminary Prospectuses
and the final Prospectuses, for any fees paid to any Trustee, for any fees charged
by investment rating agencies for the rating of the Securities (if applicable), for
the filing fees of the National Association of Securities Dealers, Inc. and any
state relating to the Securities, for the fees and expenses of listing the
Securities on any securities exchange or market, if the Securities are to be listed
on any securities exchange or market, for expenses incurred in distributing the
Prospectus and International Prospectus and any Preliminary Prospectuses to
Underwriters (or Managers), for the fees and expenses of the Company’s counsel and
independent accountants, and all expenses incurred by the Company in connection with
any “road show” presentation to potential investors.
(j) The Company will pay the required Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1) under the Act and otherwise in
accordance with Rules 456(b) and 457(r) under the Act.
(k) If and to the extent specified in the Terms Agreement, for a period
beginning at the time of execution of the Terms Agreement and ending such numbers of
days after the Closing Date as specified in the Terms Agreement, without the prior
consent of the Representatives (and Managers), the Company will not offer, sell,
contract to sell or otherwise dispose of any securities that are similar in terms to
the Securities other than in those circumstances specified in the Terms Agreement.
(l) The Company will promptly file all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act and will file
promptly all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act subsequent to the date of the Prospectus or
International Prospectus and for so long as the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of the Securities.
(m) If the Terms Agreement specifies that the Securities are to be listed on
any stock exchange or exchanges or market, to apply prior to the Closing Date,
unless otherwise agreed to by the Representatives, for the listing of the Securities
on such exchange or exchanges or market, and to use its reasonable best efforts to
complete such listings.
(n) The Company will not be or become, at any time prior to the expiration of
one year after the date of the applicable Terms Agreement, an open-end investment
company, unit investment trust, closed-end investment company
21
or face-amount certificate company that is or is required to be registered under Section 8 of the
Investment Company Act.
(o) The Company will use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Pricing
Prospectus and Prospectus under the caption “Use of Proceeds”.
(p) If immediately prior to the third anniversary (the “Renewal Deadline”) of
the initial effective date of the automatic shelf registration statement relating to
the Securities, any of the Securities remain unsold by the Underwriters, the Company
will prior to the Renewal Deadline file, if it has not already done so and is
eligible to do so, a new automatic shelf registration statement relating to the
Securities, in a form satisfactory to the Representative. If the Company is no
longer eligible to file an automatic shelf registration statement, the Company will
prior to the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Securities, in a form satisfactory to the
Representative, and will use its best efforts to cause such registration statement
to be declared effective within 180 days after the Renewal Deadline. The Company
will take all other action necessary or appropriate to permit the public offering
and sale of the Securities to continue as contemplated in the expired registration
statement relating to the Securities. References herein to the registration
statement relating to the Securities shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be.
(q) If at any time when Securities remain unsold by the Underwriters the
Company receives from the Commission a notice pursuant to Rule 401(g)(2) or
otherwise ceases to be eligible to use the automatic shelf registration statement
form, the Company will (i) promptly notify the Representative, (ii) promptly file a
new registration statement or post-effective amendment on the proper form relating
to the Securities, in a form satisfactory to the Representative, (iii) use its best
efforts to cause such registration statement or post-effective amendment to be
declared effective, and (iv) promptly notify the Representative of such
effectiveness. The Company will take all other action necessary or appropriate to
permit the public offering and sale of the Securities to continue as contemplated in
the registration statement that was the subject of the Rule 401(g)(2) notice or for
which the Company has otherwise become ineligible. References herein to the
registration statement relating to the Securities shall include such new
registration statement or post-effective amendment, as the case may be.
5. Conditions of the Obligations of the Underwriters and Managers. The obligations of the
several Underwriters (and Managers) to purchase and pay for the Securities will be subject to the
accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the written statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder
and to the following additional conditions precedent:
22
(a) On or prior to the date of the Terms Agreement, the Representatives (and
Managers) shall have received a letter, dated the date of delivery thereof and
reasonably satisfactory to the Representatives, of Ernst & Young LLP (the Company’s
independent accountants) confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and Regulations
thereunder and stating in effect that:
(i) In their opinion, the financial statements and schedules examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus or Prospectuses relating to the Registered
Securities, as amended at the date of such letter, comply in form in all
material respects with the applicable accounting requirements of the Act or
the Securities Exchange Act, as applicable, and the related published Rules
and Regulations.
(ii) They have, as indicated in such letter, made a review in
accordance with standards established by the Public Company Accounting
Oversight Board for review of interim financial information as described in
AU 722 — Interim Financial Information of the unaudited condensed
consolidated statement of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
Prospectuses and/or included in the Company’s quarterly report on Form 10-Q
incorporated by reference into the Prospectus or Prospectuses.
(iii) On the basis of the review referred to in (ii) above, a reading
of the latest available interim financial statements of the Company, and
inquiries of officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing came to their
attention that caused them to believe that the unaudited financial
statements, if any, included or incorporated by reference in the
Registration Statement or the Prospectus or Prospectuses do not comply in
form in all material respects with the applicable accounting requirements of
the Act, the Securities Exchange Act and the related published Rules and
Regulations or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in the
Registration Statement or the Prospectus or Prospectuses.
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus or Prospectuses
and included or incorporated by reference in Item 6 of the
Company’s Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where applicable)
in the audited consolidated financial statements for such five
23
fiscal years which were included or incorporated by reference in the Company’s Annual
Reports on Form 10-K for such fiscal years.
(v) They have compared certain specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
or incorporated by reference in the Registration Statement or the Prospectus
or Prospectuses (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the general
accounting records of the Company and its Subsidiaries subject to the
internal controls of the Company’s accounting system or are derived directly
from such records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such results, except as
otherwise specified in such letter.
(vi) On the basis of limited procedures, consisting of (1) a reading of
the most recent available unaudited consolidated financial statements of the
Company and its Subsidiaries for each of the current fiscal year and the
previous fiscal year furnished to them by the Company, officials of the
Company having advised them that no such financial statements for any
subsequent period were available, and (2) inquiries of officials of the
Company with responsibility for financial and accounting matters as to
whether the unaudited consolidated financial statements referred to in
clause (1) above are stated on a basis substantially consistent with that of
the audited consolidated financial statements incorporated by reference in
the Registration Statement.
(vii) With respect to the most recent available interim financial
statements of the Company and its Subsidiaries referred to in clause (vi)
above, there was not any change in the capital stock of the Company (other
than by reason of shares issued pursuant to the Company’s employee or
director stock option plans, or stock ownership plans, stock bonus plans,
stock compensation plans or dividend reinvestment plans or upon conversion
of convertible securities or in connection with acquisitions or
distributions previously disclosed to the Representatives and Managers), any
increase in the long-term debt or short-term debt of the Company and its
consolidated Subsidiaries or any decrease in consolidated net assets of the
Company and its consolidated Subsidiaries, in each case as compared with
amounts shown in such latest balance sheet or any decrease in consolidated
net sales or the total or per share amounts of consolidated net income, in
each case as compared with the comparable period in the preceding year,
except in each case for changes, increases or
decreases which the Prospectuses disclose have occurred or may occur or
which are described in such letter or letters.
24
(viii) They have read the unaudited pro forma financial information, if
any, contained in the Prospectus [and the International Prospectus],
inquired of certain officials of the Company who have responsibility for
financial and accounting matters as to the basis for their determination of
the pro forma adjustments and whether the unaudited pro forma financial
information complies in all material respects with the applicable
requirements of Rule 11.02 of Regulation S-X and proved the arithmetic
accuracy of the application of the pro forma adjustments to the historical
amounts in the unaudited pro forma financial information.
All financial statements and schedules included in material incorporated by
reference into such Prospectuses shall be deemed included in such Prospectuses for
purposes of this subsection.
On or prior to the date of the Terms Agreement, the Representatives (and
Managers) shall have received a letter from an accounting firm acceptable to the
Underwriters (and Managers), dated the date thereof, with respect to any financial
statements of an entity other than the Company which are included in the Prospectus
and the International Prospectus and not covered by the letter required to be
delivered by Ernst & Young LLP, covering substantially the same required statements
described above.
(b) The Prospectus, and, if applicable, the International Prospectus shall have
been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing in accordance with the Rules and Regulations and Section 4(a) of this Agreement. All material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time prescribed for such filing by Rule 433. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission. Also, no stop order suspending or preventing the use of the Prospectus and International Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
424(b) within the applicable time period prescribed for such filing in accordance with the Rules and Regulations and Section 4(a) of this Agreement. All material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time prescribed for such filing by Rule 433. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission. Also, no stop order suspending or preventing the use of the Prospectus and International Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(c) (i) Neither the Company nor any of its Subsidiaries shall have sustained
since the date of the latest audited statements included in the Pricing Prospectus
any loss or interference with its business from fire, explosion, flood or other
calamity whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or contemplated in
the Pricing Prospectus (excluding any amendment or supplement thereto filed after
the date hereof), and (ii) since the respective dates as of which
information is given in the Pricing Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any change, or any development involving a prospective change,
25
in or affecting the general affairs, management, financial position, 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 Pricing Prospectus (excluding any
amendment or supplement thereto filed after the date hereof), the effect of which,
in any such case described in clause (i) or (ii), is reasonably expected to have a
material adverse effect upon the business, properties, financial condition, results
of operations or prospects of the Company and its Subsidiaries, taken as a whole.
(d) Subsequent to the execution of the Terms Agreement (i) no downgrading shall
have occurred in the rating accorded the Company’s debt securities or preferred
stock by Fitch IBCA Investors Service L.P., Xxxxx’x Investors Service, Inc. or
Standard & Poor’s Ratings Group, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company’s debt securities or preferred stock.
(e) Subsequent to the execution of the Terms Agreement, there shall not have
occurred (i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a suspension or material limitation in trading
in any of the Company’s securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iv) in the reasonable
judgment of the Underwriters (or Managers) makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms and
in the manner contemplated in the Prospectus and the International Prospectus.
(f) The Company shall have complied with the provisions of Section 4(f) hereof
with respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of the applicable Terms Agreement.
(g) The Representatives (and Managers) shall have received an opinion, dated
the Closing Date, of Xxxx Xxxxxxxxx, Deputy General Counsel and Assistant Secretary
of the Company:
(i) with respect to all Securities, to the effect stated in Annex II-A.
(ii) with respect to all Securities which are Senior Debt Securities,
to the effect stated in Annex II-B.
(iii) with respect to all Securities which are Subordinated Debt
Securities, to the effect stated in Annex II-C.
26
(iv) with respect to all Securities which are Registered Debt Warrant
Securities, to the effect stated in Annex II-D.
(v) with respect to all Securities which are Registered Preferred
Shares, to the effect stated in Annex II-E.
(vi) with respect to Securities that are Registered Common Shares, to
the effect stated in Annex II-F.
Such counsel shall further state in that opinion that he has participated in
the preparation of the Registration Statement, the Pricing Prospectus and the
Prospectuses, and no facts have come to his attention that lead him to believe that
(i) either the Registration Statement or the Pricing Prospectus (except for the
financial statements, supporting schedules or other financial data and the Form T-1
included or incorporated therein, or omitted therefrom, as to which such counsel
need express no opinion), or any further amendments and supplements thereto, at the
Applicable Time, 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, (ii) the Prospectuses, on the date of this
Agreement or at the Closing Date (except for the financial statements, supporting
schedules or other financial data and the Form T-1 included or incorporated therein,
or omitted therefrom, as to which such counsel need express no opinion), or any
further amendments and supplements thereto, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made,
not misleading, (iii) that the Pricing Disclosure Package, as of the Applicable Time
when considered together with and as supplemented by the statements under the
caption “Description of Securities” in the Prospectus, contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of circumstances under which they
were made, not misleading or (iv) as of its date and as of the Closing Date, the
Prospectus and International Prospectus, as the case may be, or any further
amendment or supplement thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion) contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made,
not misleading. Such counsel shall also state that he does not know of any amendment
to the Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectuses or
required to be described in the Registration Statement, the Basic Prospectus or the
Prospectuses which are not filed or incorporated by reference or described as
required. Insofar as such opinion relates to or involves matters of law of any jurisdiction other than
Ohio, the opinion may be given in reliance on an opinion of counsel of that
jurisdiction, a copy of which opinion shall be furnished to each Representative (and
Manager),
27
in which case the opinion shall state that he believes that each
Representative (and Manager) and he are entitled to so rely.
(h) The Representatives (and Managers) shall have received from Shearman &
Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectuses, the Indentures, the Debt
Warrant Agreement or the Certificate of Designations and other related matters as
they are prepared to opine, and the Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose of enabling them to
pass upon such matters. In rendering such opinion, Shearman & Sterling LLP may rely
as to the incorporation of the Company and all other matters governed by the law of
the State of Ohio upon the opinion of Xxxx Xxxxxxxxx referred to above.
(i) The Representatives (and Managers) shall have received a certificate, dated
the Closing Date, of the President or any Vice-President and a principal financial
or accounting officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any part thereof
has been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and certifying as to the matters in subsections (c)
and (d) of this Section 5 and such other matters as the Underwriter may reasonably
request.
(j) The Representatives (and Managers) shall have received a separate letter
(“bring-down letter”), dated the Closing Date, of Ernst & Young LLP, if applicable,
and any other accounting firm with respect to the financial statements, if any
contemplated by the last paragraph of subsection (a) of this Section 5 which state
in effect that they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and 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 and the International Prospectus, as of a date not more
than five 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 letter and confirming the conclusions and findings set forth
in their original letter contemplated in subsection (a) of this Section 5.
The Company will furnish the Representatives (and Managers) with such conformed
copies of such opinions, certificates, letters and documents as they reasonably
request.
28
(k) Payment for and delivery of the Securities to be purchased by the
Underwriters will occur simultaneously with the payment for and delivery of the
Securities, if any, to be purchased by the Managers.
6. Free Writing Prospectus. (a) The Company represents and agrees that, without the prior
consent of the Representatives, it has not made and will not make any offer relating to the
Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
each Underwriter represents and agrees that, without the prior consent of the Company and the
Representatives, it has not made and will not make any offer relating to the Securities that would
constitute a free writing prospectus; any such free writing
prospectus the use of which has been consented to by the Company and the Representatives is listed on Schedule I(a) or Schedule I(b)
and herein called a “Permitted Free Writing Prospectus”.
(b) The Company has complied and will comply with the requirements of Rule 433 applicable to
any Permitted Free Writing Prospectus, including timely Commission filing where required and
legending.
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus and International Prospectus, as the case may be, or include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in light of the circumstances then prevailing, not misleading, the Company will give prompt notice
thereof to the Representatives and, if requested by the Representatives, will prepare and furnish
without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will
correct such conflict, statement or omission; provided, however, that this representation and
warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein.
7. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each
Underwriter and each Manager against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter and such Manager may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Prospectus and
International Prospectus, or any amendment or supplement thereto, the Pricing Prospectus, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d), or any related Preliminary Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each Underwriter and
each Manager for any legal or other expenses reasonably incurred by such Underwriter and such
Manager in connection with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or
29
alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives, if any, specifically for use in the Prospectus or
by any Manager specifically for use in the International Prospectus.
(b) Each Underwriter and each Manager, severally and not jointly, will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Prospectus and International Prospectus, or any
amendment or supplement thereto, the Pricing Prospectus, any Issuer Free Writing Prospectus or any
“issuer information” filed or required to be filed pursuant to Rule 433(d), or any related
Preliminary Prospectus, or arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use in the Prospectus, or by any Manager specifically for
use in the International Prospectus, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying
party (absent material prejudice) of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof the indemnifying
party will not be liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified
party.
30
(d) If the indemnification provided for in this Section 7 is unavailable or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters and Managers on the other from the offering of the 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 relative fault of the Company on the one hand and the Underwriters and Managers on the other in
connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters and Managers on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters and Managers. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company or the
Underwriters and Managers and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company and the
Underwriters and Managers agree that it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by pro rata allocation (even if the Underwriters and Managers
were treated as one entity for such purpose) or by any other method which does not take account of
the equitable contributions referred to above in this subsection (d).
The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter or Manager shall be required
to contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter or Manager has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters and Managers in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter or any Manager within the meaning of the Act; and the
obligations of the Underwriters and Managers under this Section 7 shall be in addition to any
liability which the respective Underwriters and Managers may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who controls the Company within
the meaning of the Act.
31
8. Default of Underwriters or Managers. If any Underwriter or Underwriters (or Manager or
Managers) default in their obligations to purchase Securities under the Terms Agreement and the
aggregate principal amount or number of shares, as the case may be, of the Securities that such
defaulting Underwriter or Underwriters (or Manager or Managers) agreed but failed to purchase does
not exceed 10% of the total principal amount or number of shares, as the case may be, of the
Securities, the Representatives (and the Managers) may make arrangements satisfactory to the
Company for the purchase of such Securities by other persons, including any of the Underwriters (or
Managers), but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters (or non-defaulting Manager or Managers) shall be obligated severally, in proportion to
their respective commitments under this Agreement and the Terms Agreement, to purchase the
Securities that such defaulting Underwriters (or such defaulting Manager or Managers) agreed but
failed to purchase. If any Underwriter or Underwriters (or Manager or Managers) so default and the
aggregate principal amount or number of shares, as the case may be, of the Securities with respect
to which such default or defaults occur exceeds 10% of the total principal amount or number of
shares, as the case may be, of the Securities to be purchased by the Underwriters or Managers, as
the case may be, and arrangements satisfactory to the Representatives and the Managers, and the
Company for the purchase of such Securities by other persons are not made within 36 hours after
such default, such Terms Agreement or Terms Agreements will terminate without liability on the part
of any non-defaulting Underwriter and any non-defaulting Manager, or the Company, except as
provided in Section 9 herein. As used in this Agreement, the term “Underwriter” and “Manager”
includes any person substituted for an Underwriter or a Manager, respectively, under this Section
8. Nothing herein will relieve a defaulting Underwriter or defaulting Manager from liability for
its default. The respective commitments of the several Underwriters and Managers, for the purposes
of this Section 8, shall be determined without regard to any reduction in the respective
Underwriters’ obligations to purchase the principal amounts or numbers of shares, as the case may
be, of the Securities set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will not apply if the Terms
Agreement specifies that such obligations and agreements will not apply.
9. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the several Underwriters and Managers set forth
in or made pursuant to this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of any Underwriter or
Manager, the Company or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 8 herein or if for any reason the purchase of the
Securities by the Underwriters or Managers under the Terms Agreement is not consummated, the
Company and the Underwriters (and Managers) shall remain responsible for the expenses to be paid or
reimbursed by each of them pursuant to Section 4 herein, and the respective obligations of the
Company and the Underwriters and the Managers pursuant to Section 7 herein shall remain in effect.
If the purchase of the Securities by the Underwriters and the Managers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant to Section 8, the
Company will reimburse the Underwriters and the Managers for all out-of-pocket expenses
32
(including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of
the Securities.
10. Notices. All communications hereunder will be in writing and, if sent to the Underwriters
and the Managers, will be mailed, delivered or telegraphed and confirmed to them at their addresses
furnished to the Company in writing for the purpose of communications hereunder or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at Eaton Center, 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention: Secretary.
11. Successors. This Agreement will inure to the benefit of and be binding upon the Company
and such Underwriters and Managers, if any, as are identified in the corresponding Terms Agreements
and their respective successors and the officers and directors and controlling persons referred to
in Section 7 herein, and no other person will have any right or obligation hereunder.
12. Applicable Law. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[The following form of Delayed Delivery Contract will be attached as an annex to the related
Underwriting Agreement and will also be printed separately for execution purposes. (Omit “Annex I”
in execution copies.)]
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on , ***.)
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on , ***.)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
XXXXX CORPORATION
c/o [REPRESENTATIVE]
[Address]
[Address]
Attention:
c/o [REPRESENTATIVE]
[Address]
[Address]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from Xxxxx Corporation, an Ohio corporation
(“Company”), and the Company agrees to sell to the undersigned, [If one delayed closing, insert—as
of the date hereof, for delivery on , (“Delivery Date”),]
[$] [shares]
—principal amount—of the Company’s [Insert title of securities] (“Securities”), offered by the
Company’s Prospectus dated , and a Prospectus Supplement dated , relating
thereto, receipt of copies of which is hereby acknowledged, at [ % of the principal amount thereof
plus accrued interest, if any,] [$ per share plus accrued dividends, if any,] and on the
further terms and conditions set forth in this Delayed Delivery Contract (“Contract”).
*** Insert date which is third full business day prior to Closing Date under the Terms
Agreement.
2
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for delivery on the
dates set forth below, Securities in the—principal—amounts set forth below:
[Principal Amount] | ||||||||
Delivery Date | [Number of Shares] | |||||||
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for delivery
on—the—each—Delivery Date shall be made to the Company or its order by wire transfer, payable to
the order of the Company in Federal (same day) funds at the office of ___at ___.M.
on—the—such—Delivery Date upon delivery to the undersigned of the Securities to be purchased by
the undersigned—for delivery on such Delivery Date—in definitive [If debt issue, insert--fully
registered] form and in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not less than five full
business days prior to [the][such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment are for the sole
convenience of the undersigned; that the purchase hereunder of Securities is to be regarded in all
respects as a purchase as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to take delivery of and
make payment for, Securities on [the][each] Delivery Date shall be subject only to the conditions
that (1) investment in the Securities shall not at [the][such] Delivery Date be prohibited under
the laws of any jurisdiction in the United States to which the undersigned is subject and (2) the
Company shall have sold to the Underwriters the total [principal amount][number of shares] of the
Securities less the [principal amount][number of shares] thereof covered by this and other similar
Contracts. The undersigned represents that its investment in the Securities is not, as of the date
hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which
governs such investment.
Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect, accompanied by copies of the
opinion of counsel for the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties hereto and their
respective successors, but will not be assignable by either party hereto without the written
consent of the other.
It is understood that the acceptance of any such Contract is in the Company’s sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served basis. If
3
this Contract is acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly, | ||||
(Name of Purchaser) | ||||
By | ||||
(Title of Signatory) | ||||
(Address of Purchaser) |
Accepted, as of the above date. | ||||
XXXXX CORPORATION | ||||
By |
||||
Title: | ||||
By |
||||
Title: |
XXXXX CORPORATION
(“COMPANY”)
(“COMPANY”)
DEBT SECURITIES
TERMS AGREEMENT
XXXXX CORPORATION
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for their respective
accounts, we—We] offer to purchase, on and subject to the terms and conditions of the Underwriting
Agreement filed as an exhibit to the Company’s registration statement on Form S-3 (No. )
(“Underwriting Agreement”), the following securities (“Securities”) on the following terms:
APPLICABLE TIME:
PRINCIPAL AMOUNT: $
2
MATURITY: , 20 .
OPTIONAL REDEMPTION:
SINKING FUND:
OTHER TERMS:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be . Underwriters’
fee is ___% of the principal amount of the Contract Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest[, if any,] from
.
EXPECTED REOFFERING PRICE: % of principal amount, subject to change by the undersigned.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective principal amounts of the Securities to be purchased by each of the Underwriters
are set forth opposite their names in Schedule A hereto.
[If appropriate, insert—It is understood that we may, with your consent, amend this offer to
add additional Underwriters and reduce the aggregate principal amount to be purchased by the
Underwriters listed in Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by reference.
The Securities will be made available for checking and packaging at the office of
at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed response to us in the
space provided and returning it to us.]
3
[Please signify your acceptance in writing of the foregoing not later than _____ P.M. today.]
Very truly yours, | ||||
[REPRESENTATIVE] | ||||
[Insert name(s) of other Representatives or | ||||
Underwriters] [On behalf of—themselves— | ||||
itself—and as Representative[s] of the | ||||
Several] [As] Underwriter[s] By | ||||
[REPRESENTATIVE] | ||||
By | ||||
[Insert Title] |
4
SCHEDULE A
PRINCIPAL | ||||
UNDERWRITER | AMOUNT | |||
[UNDERWRITER] |
$ | |||
Total |
$ | |||
To:
|
[REPRESENTATIVE] | |
[Insert name(s) of other Representatives or Underwriters] | ||
As [Representative[s] of the Several] Underwriter[s], | ||
c/o [REPRESENTATIVE] | ||
[Address] | ||
[Address] |
We accept the offer contained in your [letter] [wire], dated ___, relating to
$ ___ million principal amount of our [Insert title of Securities]. We also confirm that, to the
best of our knowledge after reasonable investigation, the representations and warranties of the
undersigned in the Underwriting Agreement filed as an exhibit to the undersigned’s registration
statement on Form S-3 (No.___) (“Underwriting Agreement”) are true and correct, no stop
order suspending the effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial statements in the
Prospectus (as defined in the Underwriting Agreement), there has been no material adverse change in
the financial position or results of operations of the undersigned and its Subsidiaries except as
set forth in or contemplated by the Prospectus.
Very truly yours, | ||||
Xxxxx Corporation | ||||
By | ||||
[Insert Title] | ||||
By | ||||
[Insert Title] |
XXXXX CORPORATION
(“COMPANY”)
(“COMPANY”)
PREFERRED—COMMON—STOCK
TERMS AGREEMENT
XXXXX CORPORATION
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for their respective
accounts, we—We] offer to purchase, on and subject to the terms and conditions of the Underwriting
Agreement filed as an exhibit to the Company’s registration statement on Form S-3 (No. )
(“Underwriting Agreement”), the following securities (“Securities”) on the following terms:
APPLICABLE TIME:
TITLE:
NUMBER OF SHARES: [(“Firm Securities”)]
[In addition, the Company hereby grants the Underwriters [and the Managers] an option,
exercisable from time to time by the Representatives (as defined below), to purchase upon written
notice from the Representatives given to the Company not more than 30 days subsequent to the First
Closing Date an aggregate of not more than additional shares of Securities (“Option
Securities”) to cover over-allotments at the same price per share as the Firm Securities and on the
same terms, including the terms specified in Section 5 of the Underwriting Agreement (other than
the time for delivery of and payment for the Option Securities). [Unless otherwise agreed between
the Representatives and [Lead Manager] on behalf of itself and the other Managers, (i) Option
Securities to be so purchased by the Underwriters shall be in the same proportion as the aggregate
amount of Firm Securities to be purchased by the Underwriters bear to the aggregate amount of Firm
Securities to be purchased by the Underwriters and Managers and (ii) Option Securities to be so
purchased by the Managers shall be in the same proportion as the aggregate amount of Firm
Securities to be purchased by the Managers bear to the aggregate amount of Firm Securities to be
purchased by the Underwriters and Managers.] The Company agrees to sell to the Underwriters
[Managers] such
2
Option Securities and the Underwriters [Managers] agree, severally and not jointly, to
purchase such Option Securities. Such Option Securities shall be purchased for the account of each
Underwriter [Manager] in the same proportion as the number of shares of Firm Securities set forth
opposite such Underwriter’s [Manager’s] name in Schedule A hereto bears to the total number of
shares of Firm Securities (subject to adjustment by the Representatives to eliminate fractions) and
may be purchased by the Underwriters [Managers] only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Option Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Option Securities or any portion thereof may be surrendered
and terminated at any time upon notice by the Representatives to the Company.]
(1) DIVIDEND RATE:
(1) OPTIONAL REDEMPTION:
(1) SINKING FUND:
(1) CONVERSION RIGHTS:
(1) DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be .
Underwriters’ fee is $ ___ per share of the Contract Securities.]
EXPECTED REOFFERING PRICE: $ per share, subject to change by the undersigned.
(1) | To be included only if Terms Agreement relates to preferred stock. |
[The time for the delivery of and payment for the Option Securities, being herein referred to
as the “Second Closing Date”, which may be the First Closing Date, shall be determined by the
Representatives but shall be not earlier than three nor later than seven business days after
written notice of election to purchase the Option Securities is given. The Company will deliver
the Option Securities to the Representatives [Lead Manager] for the accounts of the several
Underwriters [Managers] against payment of the purchase price therefor by wire transfer, payable to
the order of the Company in Federal (same day) funds, at the offices of Shearman & Sterling LLP.
Payment shall be made in U.S. dollars. The certificates for the Option Securities will be in
definitive form, in such denominations and registered in such names as the Representatives [Lead
Manager] requests upon reasonable notice prior to the Second Closing Date and will be made
available for checking and packaging at the above office of [Lead Manager], or, at the option of
[Lead Manager], at the office of The Depository Trust Company, at a reasonable time in advance of
the Second Closing Date.]
3
2
UNDERWRITER[S’][‘S] COMPENSATION: $ , payable to the [Representative[s]
[Lead Manager] for the proportionate accounts of the] Underwriter[s] [Manager[s]] on the Closing
Date.
OTHER TERMS:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]]:
The respective numbers of shares of the Firm Securities to be purchased by each of the
Underwriters [Managers] are set forth opposite their names in Schedule A hereto.
[If appropriate, insert—It is understood that we may, with your consent, amend this offer to add
additional Underwriters [Managers] and reduce the number of shares to be purchased by the
Underwriters [Managers] listed in Schedule A hereto by the number of shares to be purchased by such
additional Underwriters [Managers].]
(2) | Include if purchase is at public offering price and compensation payable separately. |
The Securities will be made available for checking and packaging at the office of
, or at the option of , at the office of The Depository
Trust Company, at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed response to us in the
space provided and returning it to us.]
[Please signify your acceptance in writing of the foregoing not later than P.M. today.]
Very truly yours, | ||||
[REPRESENTATIVE] | ||||
[Insert name(s) of other Representatives or | ||||
Underwriters] | ||||
[On behalf of—themselves— itself—and as | ||||
Representative[s] of the Several] [As] | ||||
Underwriter[s] [By REPRESENTATIVE] | ||||
By | ||||
[Insert Title] |
4
[LEAD MANAGER] | ||||
[Insert name(s) of other Managers] | ||||
By | ||||
By | ||||
[Attorney-in-Fact] |
5
SCHEDULE A
NUMBER OF | ||||
UNDERWRITER[MANAGER] | SHARES | |||
[Underwriter] |
||||
Total |
6
To:
|
[REPRESENTATIVES] | |
[Insert name(s) of other Representatives or Underwriters] | ||
As [Representative[s] of the Several] Underwriter[s], | ||
c/o [REPRESENTATIVE] | ||
[Address] | ||
[Address] | ||
[LEAD MANAGER] | ||
[Insert name(s) of other Managers | ||
c/o [LEAD MANAGER] | ||
[Address] | ||
[Address] |
We accept the offer contained in your [letter] [wire], dated , relating to
shares1 of our [Insert title of Securities]. We also confirm that, to the best
of our knowledge after reasonable investigation, the representations and warranties of the
undersigned in the Underwriting Agreement filed as an exhibit to the undersigned’s registration
statement on Form S-3 (No. ) (“Underwriting Agreement”) are true and correct, no stop order
suspending the effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial statements in the
Prospectus (as defined in the Underwriting Agreement), there has been no material adverse change in
the financial position or results of operations of the undersigned and its Subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectus.
Very truly yours, | ||||
Xxxxx Corporation | ||||
By | ||||
[Insert Title] | ||||
By | ||||
[Insert Title] |
(1) | and up to an additional Option Securities pursuant to the option described therein. |
XXXXX CORPORATION
(“COMPANY”)
(“COMPANY”)
DEBT WARRANT SECURITIES
TERMS AGREEMENT
XXXXX CORPORATION
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for their respective
accounts, we—We] offer to purchase, on and subject to the terms and conditions of the Underwriting
Agreement filed as an exhibit to the Company’s registration statement on Form S-3 (No. )
(“Underwriting Agreement”), the following securities (“Securities”) on the following terms:
APPLICABLE TIME:
NUMBER TO BE ISSUED:
DEBT WARRANT AGENT:
ISSUABLE JOINTLY WITH DEBT SECURITIES:
ISSUABLE JOINTLY WITH PREFERRED SHARES:
DATE FROM WHICH WARRANT SECURITY IS EXERCISABLE:
DATE ON WHICH DEBT WARRANT SECURITY EXPIRES:
EXERCISE PRICE(S):
INITIAL PUBLIC OFFERING PRICE:
PURCHASE PRICE:
TITLE OF DEBT WARRANT SECURITIES:
2
OTHER TERMS:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be . Underwriters’
fee is % of the principal amount of the Contract Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest[, if any,] from
.
EXPECTED REOFFERING PRICE: % of principal amount, subject to change by the undersigned.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective number of the Securities to be purchased by each of the Underwriters are set
forth opposite their names in Schedule A hereto.
[If appropriate, insert—It is understood that we may, with your consent, amend this offer to
add additional Underwriters and reduce the number to be purchased by the Underwriters listed in
Schedule A hereto by the number to be purchased by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by reference.
The Securities will be made available for checking and packaging at the office of
at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed response to us in the
space provided and returning it to us.]
3
[Please signify your acceptance in writing of the foregoing not later than ___P.M. today.]
Very truly yours, | ||||
[REPRESENTATIVE] | ||||
[Insert name(s) of other Representatives or | ||||
Underwriters] | ||||
[On behalf of—themselves— itself—and as | ||||
Representative[s] of the Several] [As] | ||||
Underwriter[s] | ||||
By [REPRESENTATIVE] | ||||
By | ||||
[Insert Title] |
4
SCHEDULE A
UNDERWRITER | NUMBER | |||
[Underwriter] |
||||
Total |
5
To:
|
[REPRESENTATIVE] | |
[Insert name(s) of other Representatives or Underwriters] | ||
As [Representative[s] of the Several] Underwriter[s], | ||
c/o [REPRESENTATIVE] | ||
[Address] | ||
[Address] |
We accept the offer contained in your [letter] [wire], dated , relating to
number of our [Insert title of Securities]. We also confirm that, to the best of our
knowledge after reasonable investigation, the representations and warranties of the undersigned in
the Underwriting Agreement filed as an exhibit to the undersigned’s registration statement on Form
S-3 (No. ) (“Underwriting Agreement”) are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the Underwriting Agreement) or of any
part thereof has been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in the Prospectus (as
defined in the Underwriting Agreement), there has been no material adverse change in the financial
position or results of operations of the undersigned and its Subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours, | ||||
Xxxxx Corporation | ||||
By | ||||
[Insert Title] |
ANNEX II-A
FORM OF OPINION
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(i)
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(i)
(A) The Company and the Significant Subsidiaries have been duly incorporated and are validly
existing and in good standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and in good standing as foreign corporations in all jurisdictions
in which their respective ownership of property or the conduct of their respective businesses
requires such qualification (except where the failure to so qualify would not have a material
adverse effect upon the business, properties, financial condition, results of operations or
prospects of the Company and its Subsidiaries taken as a whole), and have all power and authority
necessary to own their respective properties and conduct the businesses in which they are engaged
and, except as may be disclosed in the Registration Statement or the Pricing Prospectus as of the
Applicable Time and except to the extent of shares owned of record by directors for the purpose of
qualifying as such, all outstanding shares of capital stock of the Significant Subsidiaries are
owned by the Company directly, or indirectly through wholly owned Subsidiaries, free and clear of
any lien, pledge and encumbrance or any claim of any third party.
(B) The Delayed Delivery Contracts, if any, have been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by the purchasers
thereunder, are valid and legally binding obligations of the Company;
(C) The Registration Statement is effective under the Act, no stop order suspending its
effectiveness has been issued, and no proceeding for that purpose is pending or, to the knowledge
of such counsel, threatened by the Commission;
(D) No order directed to any document incorporated by reference in the Prospectuses has been
issued and, to the knowledge of such counsel, no challenge has been made to the accuracy or
adequacy of any such document;
(E) The documents incorporated by reference in the Registration Statement, the Pricing
Prospectus and the Prospectuses (except for the financial statements, supporting schedules and
other financial data included or incorporated therein, or omitted therefrom, 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 Securities Exchange Act and the rules and
regulations thereunder;
(F) The Registration Statement, the Pricing Prospectus and the Prospectuses (except that no
opinion need be expressed as to the financial statements, supporting schedules and other financial
data contained or incorporated therein, or omitted therefrom) comply as to form in all material
respects with the requirements of the Act, the Securities Exchange Act and the Rules and
Regulations;
(G) The statements made in the Prospectuses under the following (or comparable) captions:
“Description of Debt Securities,” “Description of Common Shares,” “Description of Debt Warrants,”
and “Description of Preferred Shares”, insofar as they purport to summarize the provisions of
documents or agreements specifically referred to therein, fairly present the information called for
with respect thereto by Form S-3 under the Act;
(H) Such counsel does not know of any litigation or any governmental proceeding pending or
threatened against the Company or any of its Subsidiaries which is required to be disclosed in the
Prospectuses which is not disclosed and correctly summarized therein;
(I) Such counsel does not know of any contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Act, the Securities Exchange Act or by the
Rules and Regulations, or which are required to be filed as exhibits to any document incorporated
by reference in the Prospectuses by the Securities Exchange Act or the rules and regulations
thereunder, which have not been filed as exhibits to the Registration Statement or to such document
or incorporated therein by reference as permitted by the Rules and Regulations or the rules and
regulations of the Commission under the Securities Exchange Act;
(J) To the best of such counsel’s knowledge, neither the Company nor any Significant
Subsidiary is in violation of its articles or certificate of incorporation or in default under any
material agreement, indenture or instrument; and
(K) The Company is not, and after giving effect to the offering and sale of the Securities,
will not be an “investment company”, as such term is defined in the Investment Company Act of 1940.
ANNEX II-B
FORM OF OPINION
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(ii)
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(ii)
(A) The Senior Indenture has been validly authorized by the Company, duly executed and
delivered by the Company and the Senior Trustee and duly qualified under the Trust Indenture Act
and is a valid and legally binding instrument of the Company, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law);
(B) The Senior Debt Securities not subject to Delayed Delivery Contracts have been validly
authorized, duly executed by authorized officers of the Company, duly authenticated by the Senior
Trustee or the authenticating agent and delivered, and are the validly issued, outstanding and
legally binding obligations of the Company, entitled to the benefits of the Senior Indenture,
except as enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law);
(C) The Senior Debt Securities subject to a Delayed Delivery Contract, if any, have been
validly authorized and, when duly executed, authenticated, issued and delivered to, and paid for
by, the respective purchasers thereof under the related Delayed Delivery Contracts, such Senior
Debt Securities will be validly issued, outstanding and legally binding obligations of the Company,
entitled to the benefits of the Senior Indenture, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(D) The Senior Debt Securities and the Senior Indenture conform in all material respects to
the statements concerning them in the Registration Statement, the Pricing Prospectus and the
Prospectuses; and
(E) This Agreement has been duly authorized, executed and delivered by the Company; the
execution, delivery and performance of this Agreement and the Delayed Delivery Contracts, if any,
and compliance by the Company with the provisions contained herein and in the Senior Debt
Securities and the Senior Indenture will not, in any way that would have a material adverse effect
upon the Company and its Subsidiaries taken as a whole, conflict with, or result in the creation or
imposition of, any lien, charge or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument known to such counsel, or result in a violation of the
articles or certificate of incorporation of the Company or any Significant Subsidiary or any law,
order, rule or regulation of any court or governmental agency having jurisdiction over the Company,
and any of its Subsidiaries or their property; and no consent, authorization or order of, or filing
or registration with, any court or governmental agency is required for the execution, delivery and
performance by the Company of this Agreement and the Delayed Delivery Contracts, if any, except
such as may be required by the Act, the Trust Indenture Act, the Securities Exchange Act, state
securities laws or foreign laws.
ANNEX II-C
FORM OF OPINION
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(iii)
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(iii)
(A) The Subordinated Indenture has been validly authorized by the Company, duly executed and
delivered by the Company and the Subordinated Trustee and duly qualified under the Trust Indenture
Act and is a valid and legally binding instrument of the Company, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in equity or at law);
(B) The Subordinated Debt Securities not subject to Delayed Delivery Contracts have been
validly authorized, duly executed by authorized officers of the Company, duly authenticated by the
Subordinated Trustee or the authenticating agent and delivered, and are the validly issued,
outstanding and legally binding obligations of the Company, entitled to the benefits of the
Subordinated Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law);
(C) The Subordinated Debt Securities subject to a Delayed Delivery Contract, if any, have been
validly authorized and, when duly executed, authenticated, issued and delivered to, and paid for
by, the respective purchasers thereof under the related Delayed Delivery Contracts, such
Subordinated Debt Securities subject to a Delayed Delivery Contract will be validly issued,
outstanding and legally binding obligations of the Company, entitled to the benefits of the
Subordinated Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law);
(D) The Subordinated Debt Securities, the Subordinated Indenture and, in the case of
Subordinated Debt Securities that are convertible into Registered Common Shares (“Convertible
Subordinated Debt Securities”), the Registered Common Shares conform in all material respects to
the statements concerning them in the Registration Statement, the Pricing Prospectus and the
Prospectuses;
(E) In the case of Convertible Subordinated Debt Securities, the Registered Common Shares
issuable upon the conversion of the Convertible Subordinated Debt Securities have been duly
authorized and validly reserved for issuance by the Company and, when issued and
delivered in accordance with the terms of the Convertible Subordinated Indenture, will be
validly issued, fully paid and nonassessable;
(F) In the case of Convertible Subordinated Debt Securities, all corporate action required to
be taken for the authorization, issuance and delivery of the Registered Common Shares issuable upon
conversion of the Convertible Subordinated Debt Securities has been validly taken, and the issuance
of the Convertible Subordinated Debt Securities is not, and the issuance of any such Registered
Common Shares will not be, subject to the preemptive rights of any stockholder of the Company; and
(G) This Agreement has been duly authorized, executed and delivered by the Company; the
execution, delivery and performance of this Agreement and the Delayed Delivery Contracts, if any,
and compliance by the Company with the provisions contained herein and in the Subordinated Debt
Securities and the Subordinated Indenture will not, in any way that would have a material adverse
effect upon the Company and its Subsidiaries taken as a whole, conflict with, or result in the
creation or imposition of, any lien, charge or encumbrance upon any of the assets of the Company or
any of its Subsidiaries pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation of the articles or
certificate of incorporation of the Company or any Significant Subsidiary or any law, order, rule
or regulation of any court or governmental agency having jurisdiction over the Company, any of its
Subsidiaries or their property; and no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the execution, delivery and
performance by the Company of this Agreement and the Delayed Delivery Contracts, if any, except
such as may be required by the Act, the Trust Indenture Act, the Securities Exchange Act, state
securities laws or foreign laws.
ANNEX II-D
FORM OF OPINION
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(iv)
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(iv)
(A) The Debt Warrant Agreement has been validly authorized by the Company, and duly executed
and delivered by the Company and the Debt Warrant Agent and is a valid and legally binding
instrument of the Company, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law);
(B) The Registered Debt Warrant Securities not subject to a Delayed Delivery Contract have
been validly authorized, duly executed by authorized officers of the Company, duly authenticated by
the Debt Warrant Agent and delivered, and are the validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits of the Debt Warrant Agreement, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a proceeding in equity or
at law);
(C) The Registered Debt Warrant Securities subject to a Delayed Delivery Contract, if any,
have been validly authorized and, when duly executed, authenticated, issued and delivered to, and
paid for by, the respective purchasers thereof under the related Delayed Delivery Contracts, such
Registered Debt Warrant Securities will be validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits of the Debt Warrant Agreement, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a proceeding in equity or
at law);
(D) The Senior Indenture has been validly authorized by the Company, duly executed and
delivered by the Company and the Senior Trustee and duly qualified under the Trust Indenture Act
and is a valid and legally binding instrument of the Company, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law);
(E) The Subordinated Indenture has been validly authorized by the Company, duly executed and
delivered by the Company and the Subordinated Trustee and duly qualified under
the Trust Indenture Act and is a valid and legally binding instrument of the Company, except
as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a proceeding in equity or
at law);
(F) The Senior Debt Securities and Subordinated Debt Securities issuable upon exercise of the
Registered Debt Warrant Securities have been validly authorized and, when executed, authenticated,
issued and delivered in accordance with the terms of the Registered Debt Warrant Securities and the
Senior Indenture or Subordinated Indenture, will be the validly issued, outstanding and legally
binding obligations of the Company, entitled to the benefits of the Senior Indenture or
Subordinated Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law);
(G) The authorization, creation, issuance and sale of the Registered Preferred Shares and
compliance by the Company with all of the provisions of the Certificate of Designations are within
the corporate powers of the Company.
(H) On the Closing Date, the Registered Preferred Shares will have been validly authorized
and, when duly executed, authenticated and delivered, upon payment therefor as provided in the
Underwriting Agreement, will be validly issued, fully paid and nonassessable.
(I) The Registered Debt Warrant Securities, the Debt Warrant Agreement, the Senior Debt
Securities, the Subordinated Debt Securities and the Registered Preferred Shares issuable upon the
exercise of the Registered Debt Warrant Securities and the Senior Indenture or the Subordinated
Indenture, if applicable, conform in all material respects to the statements concerning them in the
Registration Statement, the Pricing Prospectus and the Prospectuses; and
(J) This Agreement has been duly authorized, executed and delivered by the Company; the
execution, delivery and performance of this Agreement and the Delayed Delivery Contracts, if any,
and compliance by the Company with the provisions contained herein and in the Registered Debt
Warrant Securities, in the Debt Warrant Agreement, in the Senior Debt Securities, in the
Subordinated Debt Securities, in the Registered Preferred Shares and in the Senior Indenture or the
Subordinated Indenture, if applicable, will not, in any way that would have a material adverse
effect upon the Company and its Subsidiaries taken as a whole, conflict with, or result in the
creation or imposition of, any lien, charge or encumbrance upon any of the assets of the Company or
any of its Subsidiaries pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation of the articles or
certificate of incorporation of the Company or any Significant Subsidiary or any law, order, rule
or regulation of any court or governmental agency having jurisdiction over the Company, any of its
Subsidiaries or their property; and no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the execution, delivery and
performance by the Company of this Agreement and the Delayed Delivery
Contracts, if any, except such as may be required by the Act, the Trust Indenture Act, the
Securities Exchange Act, state securities laws or foreign laws.
ANNEX II-E
FORM OF OPINION
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(v)
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(v)
(A) The Registered Preferred Shares not subject to a Delayed Delivery Contract have been duly
and validly authorized and issued and are fully paid and nonassessable;
(B) The Registered Preferred Shares subject to a Delayed Delivery Contract, if any, have been
validly authorized and, when duly executed, issued and delivered to, and paid for by, the
respective purchasers thereof under the related Delayed Delivery Contracts, such Registered
Preferred Shares will be duly and validly issued and fully paid and nonassessable;
(C) If the Registered Preferred Shares are convertible into Registered Common Shares, the
Registered Common Shares issuable upon conversion of the Registered Preferred Shares have been duly
authorized and validly reserved for issuance by the Company and, when issued and delivered in
accordance with the terms of the Registered Preferred Shares and the Certificate of Designations,
will be validly issued, fully paid and nonassessable;
(D) The Registered Preferred Shares and the Registered Common Shares conform in all material
respects to the statements concerning them in the Registration Statement, the Pricing Prospectus
and the Prospectuses;
(E) This Agreement has been duly authorized, executed and delivered by the Company; the
execution, delivery and performance of this Agreement and the Delayed Delivery Contracts, if any,
and compliance by the Company with the provisions contained herein and in the Registered Preferred
Shares and the Certificate of Designations will not, in any way that would have a material adverse
effect upon the Company and its Subsidiaries taken as a whole, conflict with, or result in the
creation or imposition of, any lien, charge or encumbrance upon any of the assets of the Company or
any of its Subsidiaries pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation of the articles or
certificate of incorporation of the Company or any Significant Subsidiary or any law, order, rule
or regulation of any court or governmental agency having jurisdiction over the Company, any of its
Subsidiaries or their property; and no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the execution, delivery and
performance by the Company of this Agreement and the Delayed Delivery Contracts, if any, except
such as may be required by the Act, the Securities Exchange Act, state securities laws or foreign
laws; and
(F) All corporate action required to be taken for the authorization, issuance and delivery of
any Registered Common Shares issuable upon conversion of the Registered Preferred Shares has been
validly taken, and the issuance of the Registered Preferred Shares is not, and the issuance of any
such Registered Common Shares will not be, subject to any preemptive rights of any stockholder of
the Company.
ANNEX II-F
FORM OF OPINION
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(vi)
FROM DEPUTY GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(g)(vi)
(A) The Registered Common Shares have been duly and validly authorized and issued and are
fully paid and nonassessable;
(B) The Registered Common Shares conform in all material respects to the statements concerning
them in the Registration Statement, the Pricing Prospectus and the Prospectuses;
(C) This Agreement has been duly authorized, executed and delivered by the Company; the
execution, delivery and performance of this Agreement and compliance by the Company with the
provisions contained herein will not, in any way that would have a material adverse effect upon the
Company and its Subsidiaries taken as a whole, conflict with, or result in the creation or
imposition of, any lien, charge or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute a default under, any agreement, indenture or
instrument known to such counsel, or result in a violation of the articles or certificate of
incorporation of the Company or any Significant Subsidiary or any law, order, rule or regulation of
any court or governmental agency having jurisdiction over the Company, any of its Subsidiaries or
their property; and no consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the execution, delivery and performance by the Company
of this Agreement, except such as may be required by the Act, the Securities Exchange Act, state
securities laws or foreign laws; and
(D) The issuance of any such Registered Common Shares will not be subject to any preemptive
rights of any stockholder of the Company.
SCHEDULE I
(a) Materials other than the Pricing Prospectus that comprise the Pricing Disclosure Package:
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
(c) Additional Documents Incorporated by Reference: