EXHIBIT 1.1
$696,328,125
THERMO ELECTRON CORPORATION
UNDERWRITING AGREEMENT
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October 26, 1998
Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Salomon Brothers Inc
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Thermo Electron Corporation, a Delaware corporation (the "Company"),
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proposes to issue and sell up to $696,328,125 of a combination of the Company's
(i) debt securities, consisting of debentures, notes or other unsecured
evidences of indebtedness (which may be either senior debt securities (the
"Senior Debt Securities") or subordinated debt securities (the "Subordinated
Debt Securities"), and (ii) shares of common stock, $1.00 par value (the "Common
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Stock"), in one or more offerings on terms and conditions determined at the time
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of sale. The Debt Securities and the Common Stock are sometimes referred to
herein as the "Offered Securities." The Senior Debt Securities will be issued
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pursuant to an indenture (the "Senior Indenture") between the Company and
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Bankers Trust Company, as trustee (the "Trustee") and the Subordinated Debt
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Securities will be issued pursuant to an indenture (the "Subordinated
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Indenture") between the Company and the Trustee (the Senior Indenture and
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Subordinated Indenture are sometimes hereinafter collectively referred to as the
"Indentures" and individually as an "Indenture").
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From time to time, the Company may enter into one or more terms
agreements in substantially the form attached hereto as Schedule I (each a
"Terms Agreement") that provide for the sale of such designated Offered
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Securities to, and the purchase and offering thereof by, either or both of you,
as applicable, and the underwriter or underwriters named therein (the
"Underwriters" or "you", which terms shall include the underwriter or
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underwriters named therein whether acting alone in the sale of Offered
Securities or as members of an underwriting syndicate), and the provisions set
forth herein (except for provisions which relate to securities other than
Offered Securities designated in the applicable Terms Agreement) shall be
incorporated by reference in any such Terms Agreement. The applicable Terms
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement."
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1. Representations, Warranties and Agreements of the Company. The
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Company represents, warrants and agrees with each Underwriter as follows:
(a) A registration statement on Form S-3 (No. 333-62957), including a
prospectus relating to the Offered Securities of the Company for the
registration of such securities under the United States Securities Act of 1933,
as amended (the "Securities Act"), has (i) been prepared by the Company in
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material conformity with the requirements of the Securities Act and the rules
and regulations (the "Rules and Regulations") of the United States Securities
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and Exchange Commission (the "Commission") thereunder, (ii) been filed with the
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Commission under the Securities Act and (iii) become effective under the
Securities Act; and each Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). Copies of such
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registration statement and any amendments thereto have been delivered by the
Company to you. As used in this Agreement, "Effective Date" means the date and
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the time as of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the Commission;
"Registration Statement" means the registration statement in the form it became
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or becomes, as the case may be, effective (including, if the Company omitted
information from the registration statement pursuant to Rule 430A(a) or files a
term sheet pursuant to Rule 434 of the Rules and Regulations, the information
deemed to be a part of the registration statement at the time it became
effective pursuant to Rule 430A(b) or Rule 434(d) of the Rules and Regulations),
including all documents incorporated by reference or deemed to be incorporated
by reference therein and the exhibits thereto and, in the event of any amendment
thereto or the filing of any abbreviated registration statement pursuant to Rule
462(b) of the Rules and Regulations relating thereto after the effective date of
such registration statement, shall also mean (from and after the effectiveness
of such amendment or the filing of such abbreviated registration statement) such
registration statement as so amended, together with any such abbreviated
registration statement; "Base Prospectus" means the prospectus included in the
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Registration Statement; "Preliminary Prospectus" means any preliminary form of
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prospectus supplement specifically relating to designated Offered Securities in
the form filed with, or transmitted for filing to the Commission pursuant to
Rule 424 of the Rules and Regulations, together with any accompanying
prospectus; "Prospectus Supplement" means any prospectus supplement specifically
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relating to designated Offered Securities in the form first filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the
Securities Act following the execution of a Terms Agreement with respect to such
Offered Securities; "Prospectus" means the Base Prospectus together with the
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Prospectus Supplement specifically relating to designated Offered Securities in
the form first filed with, or transmitted for filing to, the Commission pursuant
to Rule 424 under the Securities Act following the execution of a Terms
Agreement with respect to such Offered Securities, except that if such Base
Prospectus is amended or supplemented on or prior to the date on which such
Prospectus Supplement was first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the Base Prospectus as so amended or supplemented
and as supplemented by such Prospectus Supplement; "Base Prospectus,"
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"Prospectus," "Preliminary Prospectus" and "Prospectus Supplement" shall include
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in each case the documents, if any, filed by the Company with the Commission
pursuant to the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference therein; and "supplement" and
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"amendment" shall be deemed to refer to and include any documents incorporated
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by reference pursuant to Item 12 of Form S-3 under
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the Securities Act that are filed subsequent to the date of the Base Prospectus
by the Company with the Commission pursuant to the Exchange Act. Any reference
to any amendment to the Registration Statement shall be deemed to include any
annual report of the Company filed with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act after the Effective Date that is incorporated by
reference in the Registration Statement. Any reference herein to information
"contained in," "contemplated by," "described in," "disclosed in," "included in"
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or "set forth in" any of the foregoing documents, or words of similar effect,
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shall be deemed to include the documents incorporated or deemed to be
incorporated by reference therein.
(b) The Registration Statement complies as to form in all material
respects, and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become effective or are
filed with the Commission, as the case may be, comply as to form in all material
respects to the requirements of the Securities Act and the Rules and Regulations
and do not and will not, as of the applicable Effective Date (as to the
Registration Statement and any amendment thereto) and as of the applicable
filing date and applicable Closing Date (as to the Prospectus and any amendment
or supplement thereto) contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the circumstances
in which they were made), not misleading; provided, however, that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter specifically for use in the Registration Statement or the
Prospectus. To the extent applicable, the copies of the Registration Statement
and each other document referred to in subparagraph (a) above that have been or
will be furnished to the Underwriters have been and will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
the Commission's Electronic Data Gathering, Analysis and Retrieval System
("XXXXX"), except to the extent permitted by Regulation S-T.
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(c) If the Offered Securities are Debt Securities: Each Indenture
conforms in all material respects to the requirements of the Trust Indenture Act
and the applicable rules and regulations thereunder.
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, when they were filed with the Commission, conformed
in all material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, not misleading; and any further
documents so filed and incorporated or deemed to be incorporated by reference in
the Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
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(e) The Company and each of its Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, with such exceptions
(as to Subsidiaries) as are not material to the Company and its Subsidiaries
taken as a whole. The Company and each of its Subsidiaries are duly qualified to
do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, except where
the failure to be so qualified and in good standing would not have a material
adverse effect on the consolidated financial condition, shareholders' equity,
results of operations or business of the Company and its Subsidiaries taken as a
whole, and where so qualified have all corporate power and authority necessary
to own, lease or operate their respective properties and to conduct the
businesses in which they are engaged as described in the Prospectus. Except as
described in the Prospectus, the Company and its Subsidiaries hold all licenses,
certificates and permits from governmental authorities necessary for the conduct
of their businesses as described in the Prospectus, with such exceptions as are
not material to the Company and its Subsidiaries taken as a whole.
(f) The Company had an authorized and issued capitalization as set
forth in the Prospectus (as of the date specified therein), and all of the
issued and outstanding shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and conform in
all material respects to the description thereof contained in the Prospectus;
and all of the issued and outstanding shares of capital stock of each Subsidiary
of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and (except for directors' qualifying shares and except
as set forth in the Prospectus as of the date such information is given) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (other than any that are not material to the
Company and its Subsidiaries taken as a whole), except that certain of such
shares are reserved for transfer pursuant to stock option and other benefit
plans under which options to purchase common stock of such corporation owned by
its corporate parent are granted to certain employees, directors or consultants
of the Company and its Subsidiaries.
(g) If the Offered Securities are Debt Securities: The Debt
Securities have been duly and validly authorized by the Company and, when duly
executed, issued and delivered by the Company, and authenticated by the Trustee
pursuant to the provisions of the Senior Indenture or the Subordinated
Indenture, as the case may be, against payment therefor as provided in this
Agreement, will constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance and transfer, reorganization, moratorium, or other similar
laws now or hereafter in effect relating to creditors' rights generally
("applicable bankruptcy laws") and general equitable principles (whether
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considered in a proceeding in equity or at law); and the Debt Securities, when
issued and delivered, will conform in all material respects to the description
thereof contained in the Prospectus.
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(h) If the Offered Securities are Debt Securities: Each Indenture has
been duly authorized by the Company, and when duly executed by the proper
officers of the Company (assuming due execution and delivery by the Trustee) and
delivered by the Company, will constitute a valid and legally binding obligation
of the Company enforceable against it in accordance with its terms, subject to
the effects of applicable bankruptcy laws and general equitable principles
(whether considered in a proceeding in equity or at law); and each Indenture
conforms in all material respects to the description thereof contained in the
Prospectus.
(i) If the Offered Securities are shares of Common Stock: The
unissued shares of Common Stock have been duly and validly authorized and, when
issued and delivered against payment therefor as provided in this Agreement,
such shares will be duly and validly issued, fully paid and non-assessable and
will conform in all material respects to the description thereof contained in
the Prospectus.
(j) If the Offered Securities are convertible into shares of Common
Stock: The shares of Common Stock reserved for issuance upon conversion of
convertible Debt Securities have been validly authorized and reserved for such
purpose; and, if and when any of such convertible Debt Securities are converted
into shares of Common Stock in accordance with the conversion rights so
provided, such shares of Common Stock will be validly issued, fully paid and
non-assessable and delivered in accordance with the terms of the Company's
corporate charter and by-laws; and when issued and delivered, such Common Stock
will conform in all material respects to the description thereof contained in
the Prospectus.
(k) If the Offered Securities are shares of Common Stock: There are
no preemptive or other rights to subscribe for or to purchase, nor any
restrictions upon the voting or transfer of any shares of the Common Stock,
including any Common Stock issuable upon conversion of any Offered Securities,
in each case, pursuant to the Company's corporate charter or by-laws or any
agreement or other instrument to which the Company is a party.
(l) This Agreement has been duly authorized, executed and delivered by
the Company.
(m) The execution, delivery and performance of this Agreement by the
Company, the execution, delivery and performance of each Indenture (if the
Offered Securities are Debt Securities) by the Company, and the consummation of
the transactions contemplated hereby and thereby, and the issuance and delivery
of the Offered Securities will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under
any indenture, lien, charge or encumbrance upon any property or mortgage, deed
of trust, loan agreement, or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which it or any of them is bound or
to which any of the property or assets of the Company or any of their its
Subsidiaries is subject, except in each case for such conflicts, breaches,
violations or defaults which would not have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of operations or
business of the Company and its Subsidiaries taken as a whole, nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any of its Subsidiaries or any statute or
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any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their
respective material properties or assets; and except for the registration of the
Offered Securities under the Securities Act, the qualification of each Indenture
under the Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act or
applicable state or foreign securities laws or by the National Association of
Securities Dealers, Inc. in connection with the purchase and distribution of the
Offered Securities by the Underwriters, no consent, approval, authorization or
order of, or filing, registration or qualification of or with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement and the Indentures (if the Offered Securities are
Debt Securities) by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby.
(n) Except as described in the Registration Statement or the
Prospectus, there are no agreements or understandings between the Company and
any person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any material
amount of securities of the Company owned or to be owned by such person (other
than those registration statements that have already been filed) or to require
the Company to include such securities in the securities registered pursuant to
the Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
(o) Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest financial statements included or incorporated by
reference in the Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
which is material to the Company and its Subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; except as
contemplated by or disclosed in the Prospectus or otherwise disclosed to the
public, since such date, the Company has not incurred any material liability or
obligation, or entered into any material transaction, or declared or paid any
dividend on its capital stock or issued or granted a material amount of
securities; and except as contemplated by or disclosed in the Prospectus, since
such date, there has not been any material change in the capital stock of the
Company or any material change in the capital stock of any of its Subsidiaries
that is material to the Company and its Subsidiaries taken as a whole or any
material change in the consolidated long-term debt of the Company, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, management, financial condition,
shareholders' equity or results of operations of the Company and its
Subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus.
(p) Xxxxxx Xxxxxxxx LLP, which has certified the financial statements
of the Company included in the Registration Statement, and any other accounting
firm which has certified any financial statements contained in the Registration
Statement, and whose reports are contained in the Prospectus, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
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(q) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present fairly in all material
respects the financial condition and results of operations of the entities
purported to be shown thereby at the dates and for the periods indicated; and
have been prepared in conformity with United States generally accepted
accounting principles or International Accounting Standards, as the case may be,
applied on a consistent basis throughout the periods involved, except as
otherwise expressly set forth therein.
(r) Except as described in the Prospectus, there are no legal or
governmental proceedings pending or threatened by or against the Company or any
of its Subsidiaries or of which any material property or assets of the Company
or any of its Subsidiaries is the subject which are required to be disclosed in
the Registration Statement or the Prospectus.
(s) There are no contracts or other documents which are required to be
described in the Prospectus by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus.
(t) Neither the Company nor any of its Subsidiaries is
(i) in violation in any material respect of its corporate charter
or by-laws, or
(ii) except as described in the Prospectus, in default in any
material respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement to which the Company
or any of its Subsidiaries is a party or by which it or any of them is or may be
bound or to which any of the properties or assets of the Company or any of its
Subsidiaries is subject, except for such defaults which would not have a
material adverse effect on the consolidated financial condition, shareholders'
equity, results of operations or business of the Company and its Subsidiaries
taken as a whole; or
(iii) except as described in the Prospectus, in violation in any
material respect of any law, ordinance, governmental rule, regulation or court
decree to which the Company or any of its Subsidiaries or its or any of their
respective property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its or their property or
to the conduct of its or their business, except for such violations or failures
which would not reasonably be expected to have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of operations or
business of the Company and its Subsidiaries taken as a whole.
(u) Except as described in the Prospectus, the Company and its
Subsidiaries own, or have valid rights to use, all items of real and personal
property which are material to the business of the Company and its Subsidiaries
taken as a whole, free and clear of all liens, encumbrances and claims which may
materially interfere with the consolidated financial condition,
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shareholders' equity, results of operations or business of the Company and its
Subsidiaries taken as a whole.
(v) Except as described in the Prospectus, the Company and its
Subsidiaries own or possess adequate licenses or other rights to use all
intellectual property rights, including patents, trademarks, service marks,
trade names, copyrights or know-how, necessary to conduct their respective
businesses as described in the Prospectus, except where such failure, singularly
or in the aggregate, would not have a material adverse effect on the
consolidated financial condition, shareholders' equity, results of operations or
business of the Company and its Subsidiaries taken as a whole, and, except as
described in the Prospectus, none of the Company or its Subsidiaries has
received any notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) rights or claims of others with respect to any
patents, patent applications, trademarks, service marks, trade names, copyrights
or know-how, that is reasonably likely to result in a material adverse effect on
the consolidated financial condition, shareholders' equity, results of
operations or business of the Company and its Subsidiaries taken as a whole.
(w) Neither the Company nor any of its Subsidiaries is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission thereunder.
(x) Since the date which is three months prior to this Agreement, no
debt rating assigned to the Company by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations, has been lowered or, to the
Company's knowledge, threatened to be lowered by any such rating organization
nor, to the Company's knowledge, has it been placed under surveillance or review
by any such rating organization.
(y) Any certificate signed by any officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters pursuant to this
Agreement shall be deemed a representation and warranty hereunder by the Company
to each Underwriter as to the matters covered thereby.
2. Purchase of the Offered Securities by the Underwriters. On the
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basis of the representations and warranties contained in, and subject to the
terms and conditions set forth herein, the Company agrees to sell to the
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at the price and/or principal amount, as the case may
be, set forth in the applicable Terms Agreement and in the respective amounts
and number of shares, as the case may be, of the designated Offered Securities
set forth opposite the name of each such Underwriter in Exhibit A to such Terms
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Agreement. In addition, the Company may specify in any Terms Agreement relating
to any offering that the Company thereby grants to the Underwriters an option to
purchase up to the number of shares or principal amount of additional Offered
Securities (the "Option Securities," and if so purchased shall also be "Offered
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Securities" herein) in the amount set forth in such Terms Agreement. The option
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thereby granted is exercisable as provided in Section 4 hereof, shall expire at
the close of business on the 30th day after the date of the applicable Terms
Agreement (unless otherwise
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specified therein) and will be granted solely for the purpose of covering over-
allotments which may be made in connection with the applicable offering. The
Option Securities shall be purchased severally for the account of the
Underwriters in proportion to the number or amount of Offered Securities set
opposite the name of such Underwriters in Exhibit A of the applicable Terms
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Agreement. The respective purchase obligations of each Underwriter with respect
to the Option Securities shall be adjusted by the managing Underwriter so that
no Underwriter shall be obligated to purchase Option Securities in amounts other
than in 100 share or $1,000 principal amount increments.
3. Offering of the Offered Securities by the Underwriters. (a) The
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several Underwriters propose to offer the Offered Securities for sale upon the
terms and conditions set forth in the Prospectus and any amendment or supplement
thereto relating to the Offered Securities.
(b) Each Underwriter severally agrees to comply with the following
restrictions in the offering and sale of any Debt Securities:
(i) except to the extent permitted under U.S. Treasury Regulation
(S)1.163-5(c)(2)(i)(D) (the "D Rules"), (A) the Underwriters have not offered or
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sold, and during the restricted period will not offer or sell, Debt Securities
in bearer form to a person who is within the United States or its possessions or
to a United States person, and (B) the Underwriters have not delivered, and will
not deliver, within the United States or its possessions definitive Debt
Securities in bearer form that are sold during the restricted period;
(ii) The Underwriters and each of their affiliates that is
acquiring from them Debt Securities in bearer form for the purposes of offering
or selling such Debt Securities during the restricted period, presently have in
effect, and throughout the restricted period will have in effect, procedures
reasonably designed to ensure that such Underwriters and such affiliates and
their respective employees or agents who are directly engaged in selling Debt
Securities in bearer form are aware that such Debt Securities may not be offered
or sold during the restricted period to a person who is within the United States
or its possessions or to a United States person, except as permitted by the D
Rules;
(iii) Each Underwriter that is a United States person, if any, is
acquiring, either as agent or on its own behalf, the Debt Securities in bearer
form for purposes of resale in connection with their original issuance, and if
it retains Debt Securities in bearer form for its own account, it will only do
so in accordance with the requirements of U.S. Treasury Regulation (S)1.163-
5(c)(2)(i)(D)(6); and
(iv) With respect to each of the Underwriters' affiliates that
acquires from such Underwriter Debt Securities in bearer form for the purpose of
offering or selling such Debt Securities during the restricted period, such
Underwriter agrees that it will obtain from such affiliate for the benefit of
the Company the representations, warranties, covenants and agreements contained
in clauses (i), (ii) and (iii).
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Terms used in this Section 3(b) have the meanings given to them by the U.S.
Internal Revenue Code and regulations thereunder, including the D Rules.
(c) Each Underwriter severally represents and agrees that (i) it has
not offered or sold and will not offer or sell in the United Kingdom any Offered
Securities except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purpose of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 (the
"Regulations") or the Financial Services Xxx 0000, (ii) it has complied and will
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comply with all applicable provisions of the Financial Services Xxx 0000 and the
Regulations with respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United Kingdom and (iii) it has
only issued or passed on, and will only issue or pass on, in the United Kingdom
any document received by it in connection with the issue of the Offered
Securities if that person is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996,
as amended, or is a person to whom the document may otherwise lawfully be issued
or passed on.
(d) Each Underwriter, jointly and severally, represents and warrants
that it has not entered into, and agrees that it will not enter into, any
contractual arrangement with respect to the distribution or delivery of the Debt
Securities in bearer form, except with its respective affiliates, without the
prior written consent of the Company or pursuant to a form of selling agreement
containing restrictions substantially to the effect set forth in paragraph (b)
above.
4. Delivery of and Payment for the Offered Securities. Delivery of
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and payment for the Offered Securities shall be made at the headquarters office
of the managing Underwriter, or at such other location as may be agreed upon by
the Underwriters and the Company, at 10:00 a.m., Eastern time, on the business
day specified in the applicable Terms Agreement, or at such other time and date
as shall be agreed upon (each such date and time of payment and delivery being
herein called the "Closing Date") in the manner set forth in the applicable
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Terms Agreement. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. Upon delivery, the Offered Securities
shall be registered in such names and in such denominations as the Underwriters
shall request in writing not less than two full business days prior to the
Closing Date. For the purpose of expediting the checking and packaging of the
certificates for the Common Stock, the Company shall make the certificates
representing the Common Stock available for inspection by the Underwriters in
New York, New York, not later than 2:00 p.m., Eastern time, on the business day
prior to the Closing Date. The Debt Securities of a series may be issued in
whole or in part in the form of one or more global securities that will be
deposited with, or on behalf of, one or more depositories, or a nominee thereof,
identified in the Prospectus relating to such series. In such a case, the
manner of delivery of such global securities will be set forth in the applicable
Terms Agreement, or if not so set forth, as described in the applicable
Prospectus. At any time on or before the thirtieth day after the date of any
Terms Agreement relating to Option Securities, if applicable, the option granted
in Section 2 may be exercised by written notice being given to the Company by or
on behalf of the Underwriters. Such notice
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shall set forth the aggregate number or amount of Option Securities as to which
the option is being exercised, the names in which the Option Securities are to
be registered if not in global form as set forth above, the denominations in
which the shares of Option Securities are to be issued and the date and time, as
determined by the Underwriters, when the Option Securities are to be delivered;
provided, however, that this date and time shall not be earlier than the Closing
Date nor earlier than the second business day after the date on which the option
shall have been exercised nor later than the third business day after the date
on which the option shall have been exercised. The date and time the Option
Securities are delivered are sometimes referred to as the "Option Closing Date".
-------------------
Delivery of and payment for the Option Securities shall be made at the place
specified in the first sentence of this Section 4 (or at such other place as
shall be determined by agreement between the Underwriters and the Company at
10:00 a.m., Eastern time, on the Option Closing Date). On the Option Closing
Date, the Company shall deliver or cause to be delivered the certificates
representing the Option Securities to the Underwriters for the account of each
Underwriter against payment to or upon the order of the Company of the purchase
price in the manner set forth in the applicable Terms Agreement. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Securities shall be registered in such
names (if other than in global form) and in such denominations as the
Underwriters shall request in the aforesaid notice. For the purpose of
expediting the checking and packaging of certificates for the Option Securities
that are Common Stock, the Company shall make the certificates representing such
Common Stock available for inspection by the Underwriters in New York, New York,
not later than 2:00 p.m., Eastern time, on the business day prior to the Option
Closing Date.
5. Further Agreements of the Company. The Company agrees:
---------------------------------
(a) To prepare the Prospectus in a form reasonably approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of the applicable Terms
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act; after the date of the applicable Terms
Agreement, to make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the applicable Closing Date except as
permitted herein; to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Underwriters with copies thereof;
to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Offered Securities; to advise the
Underwriters, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, of any request by the Commission for the amending or supplementing of
the Registration Statement or
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the Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) To furnish, promptly upon request by the representatives of the
Underwriters named in any applicable Terms Agreement (the "Representatives" and
---------------
if no Representatives are so named, then any references herein to the
Representatives shall be deemed to refer to the Underwriters), to the
Underwriters and to counsel for the Underwriters a copy of the Registration
Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Representatives shall reasonably request:
(i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the Indentures and such other exhibits as
the Underwriters may reasonably request),
(ii) each Preliminary Prospectus, the Prospectus and any amended
or supplemented Prospectus; and
(iii) any document incorporated or deemed incorporated by
reference in the Prospectus (excluding exhibits thereto); and, if the delivery
of a prospectus is required at any time after the Effective Date in connection
with the offering or sale of the Offered Securities and if at such time any
events shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus (or to file under the Exchange Act any
document incorporated by reference in the Prospectus) in order to comply with
the Securities Act or the Exchange Act, to notify the Underwriters and to file
such document and to prepare and furnish without charge to each Underwriter as
many copies as the Representatives may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Underwriters, be required by the
Securities Act, or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, and promptly after
filing with the Commission (or, if between the signing of any applicable Terms
Agreement and the Closing Date thereunder, prior to filing with the Commission)
any document incorporated or deemed incorporated by reference in the
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Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Underwriters and counsel for the Underwriters;
(f) As soon as practicable after the date of this Agreement and every
Terms Agreement relating to designated Offered Securities, to make generally
available to its security holders an earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(g) For a period of five years following the applicable Closing Date,
to furnish to the Underwriters, copies of all materials furnished by the Company
to all of its shareholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Stock and any other Offered Securities may be
listed pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rules or regulations of the
Commission thereunder;
(h) Promptly from time to time to take such action as the Underwriters
may reasonably request to qualify the Offered Securities for offering and sale
under the securities laws of such jurisdictions as the Underwriters may
reasonably request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Offered Securities; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not so qualified;
(i) For a period of 90 days after the date of the Prospectus relating
to designated Common Stock, or Offered Securities convertible into Common Stock
but only if specified in the applicable Terms Agreement (unless a different time
period is set forth in the applicable Terms Agreement), the Company will not,
directly or indirectly, offer for sale, sell or otherwise dispose of (or enter
into any hedging transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any shares of Common Stock or any security convertible or exchangeable for
Common Stock (other than shares issuable pursuant to employee benefit plans,
stock option plans or other compensation plans existing on the date thereof or
pursuant to then currently outstanding options, warrants or rights and other
than the issuance of shares of Common Stock as consideration for the acquisition
of one or more businesses provided that such Common Stock may not be resold
prior to the expiration of the 90-day period referenced above), or sell or grant
options, rights or warrants with respect to any shares of Common Stock (other
than the grant of options pursuant to option plans existing on the date thereof)
otherwise than in accordance with this Agreement without the prior written
consent of the Representatives;
(j) In the event designated Offered Securities are to be listed on a
securities exchange, to apply for any listing of such designated Offered
Securities on such securities exchange and to use its best efforts to complete
and maintain that listing, subject only to official
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notice of issuance, prior to the relevant Closing Date, or if not so listed by
such date, as soon as practical thereafter. In the case of Offered Securities
that are Debt Securities to be listed on a foreign securities exchange, if the
Company is not able to effect or maintain such listing, it will use its best
efforts to obtain and maintain the quotation for, or listing of, such Debt
Securities on such other stock exchange or exchanges as the Company may, with
the approval of the Representatives, determine;
(k) To apply the net proceeds from the sale of the Offered Securities
being sold by the Company as set forth in the Prospectus; and
(l) If the Offered Securities include Debt Securities, not to offer or
sell such Debt Securities in bearer form during the restricted period to a
person who is within the United States or its possessions or to a United States
person (each as defined in the U.S. Internal Revenue Code and regulations
thereunder, including the D Rules).
6. Expenses. The Company agrees to pay:
--------
(a) the costs incident to the authorization, issuance, sale and
delivery of the Offered Securities and any taxes payable in that connection
(other than taxes based on income);
(b) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement and any amendments and exhibits
thereto;
(c) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any Preliminary Prospectus, the Prospectus
and any amendment or supplement to the Prospectus or any document incorporated
or deemed incorporated by reference therein, all as provided in this Agreement;
(d) the costs, if any, of printing this Agreement and any other
related documents in connection with the offering, purchase, sale and delivery
of the Offered Securities;
(e) any applicable listing or other fees;
(f) the filing fee of the National Association of Securities Dealers,
Inc. and the fees and expenses of qualifying the Offered Securities under the
securities laws of the several jurisdictions as provided in Section 5(h) and of
preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriters);
(g) any fees charged by securities rating services for rating any
Offered Securities; and
(h) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that, except as
provided in this Section 6 and in
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Section 8 and Section 11, the Underwriters shall pay the costs and expenses of
their counsel, any transfer taxes on the Offered Securities which they may sell,
the expenses of advertising any offering of the Offered Securities made by the
Underwriters and all other costs and expenses of the Underwriters and their
counsel not enumerated in this Section 6.
7. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters to purchase and pay for any Offered Securities are subject to the
accuracy, when made, and on each Closing Date, of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder and under any Terms Agreement, and to each of the
following additional terms and conditions:
(a) At the applicable Closing Date, the Prospectus shall have been
timely filed with the Commission in accordance with Section 5(a); no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to the Representatives'
reasonable satisfaction.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to any Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact that, in the opinion of counsel for the Underwriters, is material or
omits to state a fact that, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances in which they were
made), not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form, validity and enforceability of this Agreement, any Terms
Agreement, the Indentures, the Offered Securities, the Registration Statement
and the Prospectus, and all other legal matters relating to this Agreement and
any Terms Agreement and the transactions contemplated hereby and thereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(d) Xxxx X. Xxxxxxxxx, Esq., General Counsel to the Company, shall
have furnished to the Underwriters his opinion, in such capacities, addressed to
the Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company and each of its Significant Subsidiaries have been
duly incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation. The Company
and each of its Significant Subsidiaries have all corporate power and authority
necessary to own, lease or operate their
-16-
respective properties and to conduct the businesses in which they are engaged as
described in the Prospectus;
(ii) The Company had an authorized capitalization as set forth in
the Prospectus (as of the date such information is given). All of the
outstanding shares of capital stock of each of the Company and its Significant
Subsidiaries are duly authorized and validly issued, and, to the best of such
counsel's knowledge, fully paid and non-assessable; to the best of such
counsel's knowledge, the Company owns, directly or indirectly through
Subsidiaries, the amount of the outstanding capital stock of its Significant
Subsidiaries, as described in the Prospectus (as of the date such information is
given), and to the best of such counsel's knowledge, such ownership is free and
clear of any lien, claim or encumbrance or any other claim of any third party
that is material to the Company and its Subsidiaries taken as a whole) (except
for certain obligations of the Company and its Subsidiaries pursuant to their
stock and employee benefit plans). To the best of such counsel's knowledge,
except as described in the Prospectus, including options granted or to be
granted pursuant to stock and employee benefit plans described therein, there
are no outstanding warrants or options to purchase any material number of shares
of the capital stock of the Company from the Company. Except as described in the
preceding sentence, there are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of, any shares of
the Common Stock, including any Common Stock issuable upon conversion of any
Offered Securities, in each case pursuant to the Company's corporate charter or
by-laws or any agreement or other instrument to which the Company is a party
known to such counsel;
(iii) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus by the Securities Act or by the Rules and Regulations which have not
been described in the Prospectus;
(iv) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as to which
such counsel need express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder;
(v) Except as described in Section 1(n) hereof, to the best of
such counsel's knowledge and except as described in the Prospectus, there are no
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Securities Act with respect to any material amount of securities of the
Company owned or to be owned by such person (other than those registration
statements that have already been filed) or to require the Company to include
such securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act;
(vi) To the best of such counsel's knowledge, and other than as
set forth in the Registration Statement or the Prospectus, there are no legal or
governmental
-17-
proceedings pending or threatened by or against the Company or any of its
Subsidiaries or of which any material property or assets of the Company or any
of its Subsidiaries is the subject which are required to be disclosed in the
Registration Statement or the Prospectus;
(vii) If the Offered Securities are Debt Securities: The Debt
Securities have been duly and validly authorized by the Company and, when duly
executed, issued and delivered by the Company, and authenticated by the Trustee
pursuant to the provisions of each Indenture, against payment therefor as
provided in this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits of such Indenture and
enforceable against the Company in accordance with their terms, except as the
enforceability thereof may be limited by applicable bankruptcy laws and by
general equitable principles (regardless of whether the issue of enforceability
is considered in a proceeding in equity or at law), and the Debt Securities
conform as to legal matters in all material respects to the description thereof
contained in the Prospectus.
(viii) If the Offered Securities are Debt Securities: Each
Indenture has been duly authorized, executed and delivered by the Company, and
(assuming due execution and delivery by the Trustee) constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by applicable bankruptcy laws and by general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law); and each Indenture conforms as to legal matters in all material
respects to the description thereof contained in the Prospectus;
(ix) If the Offered Securities are shares of Common Stock:
The unissued shares of the Common Stock have been duly and validly authorized
and, when issued and delivered against payment therefor as provided in this
Agreement, such shares will be duly and validly issued, fully paid and non-
assessable; and the Common Stock conforms as to legal matters in all material
respects to the description thereof contained in the Prospectus;
(x) If the Offered Securities are convertible into shares of
Common Stock: The Common Stock reserved for issuance upon conversion of
convertible Debt Securities has been validly authorized and reserved for such
purpose; and, if and when any of such convertible Debt Securities are converted
into shares of Common Stock in accordance with the conversion rights so
provided, such shares of Common Stock will be validly issued, fully paid and
non-assessable and delivered in accordance with the terms of the Company's
corporate charter and by-laws;
(xi) This Agreement has been duly authorized, executed and
delivered by the Company;
(xii) The issue and sale of the Offered Securities being
delivered on the Closing Date by the Company and the compliance by the Company
with all of the provisions of this Agreement and each Indenture, and the
consummation of the transactions contemplated hereby and thereby, will not
conflict with or result in a breach or violation of any of the terms or
-18-
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement known to such counsel to which
the Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Subsidiaries is subject except for such conflicts,
breaches, violations or defaults which would not have a material adverse effect
on the consolidated financial condition, shareholders' equity, results of
operations or business of the Company and its Subsidiaries taken as a whole, nor
will such actions result in any violation of the charter or by-laws of the
Company or any provisions of any State or Federal statute or any order, rule or
regulation known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries or any of their
respective material properties or assets (other than statutes, orders, rules and
regulations pertaining to securities laws matters, which are addressed elsewhere
in such opinion).
(xiii) Except for the registration of the Offered Securities
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act, the
Trust Indenture Act and applicable state securities laws or by the National
Association of Securities Dealers, Inc., in connection with the purchase and
distribution of the Offered Securities by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution, delivery and
performance of this Agreement or the Indentures by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby.
(xiv) The Registration Statement was declared effective under
the Securities Act and each Indenture was qualified under the Trust Indenture
Act as of the date specified in such opinion, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424 specified in such opinion on
the date specified therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best of such counsel's
knowledge, no proceeding for that purpose is pending or threatened by the
Commission;
(xv) The statements contained in the Prospectus under the
captions relating to the Offered Securities, insofar as they describe federal
statutes, rules and regulations, or portions thereof (other than those
pertaining to tax matters, as to which such counsel need not express any
opinion), constitute accurate descriptions thereof in all material respects; and
(xvi) The Registration Statement, as of the Effective Date,
and the Prospectus, as of the date it was filed with the Commission and as of
the Closing Date, and any further amendments or supplements thereto made by the
Company prior to the applicable Closing Date (other than the financial
statements and related schedules therein and all other financial and statistical
data included therein or omitted therefrom and other than the Form T-1, as to
which such counsel need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations; and each Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and regulations
thereunder.
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In rendering the foregoing opinions, such counsel may state that his
opinion is limited to matters governed by the federal laws of the United States
of America, the Delaware General Corporation Law and the laws of the
Commonwealth of Massachusetts.
In addition, such counsel shall also have furnished to the
Underwriters a written statement, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Underwriters, to the
effect that such counsel has acted as counsel to the Company in connection with
the preparation of the Registration Statement, and based on the foregoing, such
counsel does not believe that (i) the Registration Statement (other than the
financial statements and related schedules and all other financial and
statistical data included or incorporated by reference therein or omitted
therefrom, the statements under the heading, "Certain United States Federal Tax
Considerations," and the Form T-1, as to which such counsel need not express any
belief), as of the Effective Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the
Prospectus (other than the financial statements and related schedules and all
other financial and statistical data included or incorporated by reference
therein or omitted therefrom, the statements under the heading, "Certain United
States Federal Tax Considerations," and the Form T-1, as to which such counsel
need not express any belief), as of its date and the applicable Closing Date,
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) any document incorporated by reference in the Prospectus
(other than the financial statements and related schedules and all other
financial and statistical data included or incorporated by reference therein or
omitted therefrom and other than the Form T-1, as to which such counsel need not
express any belief) contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
foregoing opinion and statement may be qualified by statements to the effect
that such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for the statements made in the Prospectus
under the captions relating to the designated Offered Securities and insofar as
such statements relate to the Offered Securities and concern legal matters
(other than tax matters).
(e) If the applicable Prospectus Supplement refers to an opinion of
tax counsel for the Company relating to tax matters concerning the Offered
Securities, the Company shall have furnished to the Underwriters an opinion of
such counsel, addressed to the Underwriters, dated the Closing Date, to the
effect that the opinion of such counsel referred to in the Prospectus is
confirmed.
(f) At the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Securities as contemplated herein and in each Terms Agreement and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein and therein
contained; and the Underwriters shall have received from counsel for the
-20-
Underwriters, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably require.
(g) At the time of execution of each Terms Agreement, the
Underwriters shall have received from each of Xxxxxx Xxxxxxxx LLP, with respect
to the Company and any other accounting firm which has audited financial
statements included in the Registration Statement, letters, in form and
substance satisfactory to the Underwriters, addressed to the Underwriters and
dated the date of such Terms Agreement (i) confirming that they are independent
public accountants with respect to the Company or such other corporation, and
their respective Subsidiaries, as the case may be, within the meaning of the
Securities Act and are in compliance with the applicable requirements relating
to the qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating as of the date thereof (or with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than five days prior to the date thereof), the conclusions and findings of
such firm with respect to the financial information and other matters ordinarily
covered by "accountants' comfort letters" to underwriters in connection with
registered public offerings in accordance with Statement of Auditing Standards
No. 72.
(h) With respect to the letters of the accounting firms referred to in
the preceding paragraph and delivered to the Underwriters concurrently with the
execution of each Terms Agreement (the "initial letters"), the Company shall
---------------
have furnished to the Underwriters letters (the "bring-down letters") of such
------------------
accountants, addressed to the Underwriters and dated the Closing Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five business days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letters and (iii)
confirming in all material respects the conclusions and findings set forth in
the initial letters.
(i) At each Closing Date, there shall not have been, since the
respective dates as of which information is given in the Registration Statement,
the Base Prospectus and any Preliminary Prospectus as in effect at the time of
execution of the applicable Terms Agreement, any material adverse change in the
consolidated financial condition, stockholders' equity, results of operations or
business of the Company and its Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, except as set forth in or
contemplated by such documents.
(j) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the Chief
Executive Officer, the Chief Financial Officer, the President or a Vice
President and the Treasurer, Secretary or an Assistant Secretary of the Company,
dated the Closing Date, to the effect that the signers of such certificate have
carefully examined the
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Registration Statement, the Prospectus, any supplements to the Prospectus and
this Agreement and that, to the best of such person's knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the date of the certificate
with the same effect as if made on the date of the certificate, and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to such person's knowledge, threatened; and
(iii) since the respective dates as of which information is
given in the Registration Statement, the Base Prospectus and any
Preliminary Prospectus as in effect at the time of execution of the
applicable Terms Agreement, there has been no material adverse change in
the consolidated financial condition, stockholders' equity, results of
operations or business of the Company and its Subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by such documents.
(k) (i) Neither the Company nor any of its Subsidiaries shall have
sustained since the respective dates as of which information is given in the
Registration Statement, the Base Prospectus and any Preliminary Prospectus as in
effect at the time of execution of the applicable Terms Agreement, any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which is material to the Company and its
Subsidiaries taken as a whole, otherwise than as set forth in or contemplated by
such documents or (ii) since the date of the most recent financial statements of
the Company contained in the Registration Statement, the Base Prospectus and any
Preliminary Prospectus as in effect at the time of execution of the applicable
Terms Agreement, there shall not have been any change in the capital stock or
consolidated long-term debt of the Company, except as set forth in the letters
described in paragraphs (g) or (h) of this Section 7, or any material adverse
change in the general affairs, operations, business, prospects, key personnel,
capitalization, financial condition, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole, otherwise than
as set forth in or contemplated by the Registration Statement, the Base
Prospectus and any Preliminary Prospectus as in effect at the time of execution
of the applicable Terms Agreement, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Representatives or a
majority in interest of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Securities being delivered on such Closing Date on the terms and
in the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, (i) no downgrading shall have occurred in the rating
accorded the Company's
-22-
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's securities.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the NASDAQ National Market or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction,
(ii) a general banking moratorium shall have been declared by
federal or New York state authorities;
(iii) the United States shall have become engaged in hostilities,
there shall have been an escalation in hostilities involving the United States
or there shall have been a declaration of a national emergency or war by the
United States; or
(iv) there shall have occurred such a material adverse change in
general economic or financial conditions (or such a material adverse change in
international conditions the effect of which on the financial markets in the
United States shall be such) as to make it, in the judgment of the
Representatives or a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering or delivery of
the Offered Securities being delivered on such Closing Date on the terms and in
the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters. The Company may rely on any waiver of such
conditions given by the Underwriters or counsel to the Underwriters as if given
by the Underwriters.
8. Indemnification and Contribution. (a) The Company shall indemnify
--------------------------------
and hold harmless each Underwriter, its directors, officers, partners and
employees and each such person, if any, who controls any Underwriter, within the
meaning of the Securities Act, from and against any and all loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but
not limited to any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Offered Securities), to which that Underwriter,
director, officer, partner or employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon,
-23-
(i) any untrue statement or alleged untrue statement made by the
Company in Section 1 hereof ; or
(ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto; or
(iii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus or any Preliminary
Prospectus, in light of the circumstances in which they were made) not
misleading; or
(iv) any act or failure to act or any alleged act or failure to
act by any Underwriter in connection with, or relating in any manner to, the
Offered Securities or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (ii) or (iii) above (provided
that the Company shall not be liable under this clause (iv) to the extent that
it is determined in a final judgment by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly or indirectly
from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence, willful misconduct or breach of this
Agreement);
and shall reimburse each Underwriter and each such director, officer, partner,
employee or controlling person within 30 days after receiving written demand
therefor for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, partner, employee or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
such amendment or supplement in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through any
Underwriter by or on behalf of any Underwriter specifically for inclusion
therein; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage,
liability or any action in respect thereof of such Underwriter results from the
fact that such Underwriter sold Offered Securities to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the Prospectus
as then amended or supplemented in any case where such delivery is required by
the Securities Act if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or liability
of such Underwriter results from an untrue statement or omission of a material
fact contained in the Preliminary Prospectus which was (i) identified to such
Underwriter at or prior to the earlier of the filing with the Commission or the
furnishing to such Underwriter of the Prospectus and (ii) corrected in the
Prospectus or in the
-24-
Prospectus as then amended or supplemented. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to any
Underwriter or to any director, officer, partner, employee or controlling person
of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and its directors, officers and employees, and each
person, if any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to the purchases and sales of
Offered Securities), to which the Company or any such director, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Underwriters by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse, within 30 days after receiving written demand
therefor, the Company and any such director, officer, employee or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under Section 8 (a) or
(b). If any such claim or action shall be brought against an indemnified party,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
-25-
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided that the Representatives shall have the right
to employ counsel to represent you and those other Underwriters who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by the Underwriters against the Company hereunder if, in your
reasonable judgment, it is advisable for you and those Underwriters to be
represented by separate counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the indemnifying party or parties, and
provided, further, in no event, shall the indemnifying party or parties be
responsible for the expenses of more than one separate counsel for all such
indemnified parties.
No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise, consent or judgment (A) includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, and (B) does not include a statement
as to or an admission of fault, culpability or failure to act by or on behalf of
any indemnified party, or (ii) be liable for any settlement of any such action
effected without its written consent, but if settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the fault of
the Company on the one hand and the Underwriters on the other with respect to
the statements or omissions which in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Offered Securities purchased under this Agreement (before deducting expenses)
received by the Company on the one hand, and the
-26-
total underwriting discounts and commissions received by the Underwriters with
respect to the Offered Securities purchased under this Agreement, on the other,
bear to the total gross proceeds from the offering of the Offered Securities
under this Agreement in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8 shall be deemed to include, for purposes of
this Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 8(d) are several in proportion to
their respective underwriting obligations and not joint. The provisions of this
Section 8(d) shall be applied separately to each offering of Offered Securities.
(e) The Underwriters severally confirm that the following statements
are correct and constitute information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus: (i) the legend in
the Prospectus concerning stabilization and over-allotment by the Underwriters,
(ii) the statements with respect to the public offering of the Offered
Securities by the Underwriters set forth on the cover page of the Prospectus and
(iii) the statements concerning concessions, allowances and reallowances and
stabilization and over-allotment set forth under the caption "Underwriting" in
the Prospectus.
9. Defaulting Underwriters. If on the applicable Closing Date, any
-----------------------
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase (in
addition to the amount of Offered Securities which such Underwriters are
obligated to purchase pursuant to Section 2) the Offered Securities which the
defaulting Underwriter agreed but failed to purchase on such Closing Date in the
respective proportions to the amount of Offered Securities set opposite the
names of each remaining non-defaulting Underwriter in Exhibit A to the
---------
applicable Terms Agreement bears to the amount of the Offered Securities set
opposite the names of all the remaining non-defaulting Underwriters in Exhibit A
---------
to the applicable Terms Agreement; provided, however, that the
-27-
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Offered Securities on such Closing Date if the total number of Offered
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds 10% of the total amount of the Offered Securities
to be purchased on such Closing Date. If the foregoing maximum percentage is
exceeded, the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Underwriters who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Offered Securities to be purchased on such Closing Date. If the
non-defaulting Underwriters or the other underwriters satisfactory to the
Underwriters do not elect to purchase the Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company and the Underwriters will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11 and continue to be liable under Section 8. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
-----------
unless the context requires otherwise, any party not listed in Exhibit A to any
---------
applicable Terms Agreement who, pursuant to this Section 9, purchases Offered
Securities which a defaulting Underwriter agreed but failed to purchase. Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company for damages caused by its default. If other underwriters are
obligated or agree to purchase the Offered Securities of a defaulting or
withdrawing Underwriter, either the Underwriters or the Company may postpone the
applicable Closing Date for up to seven full business days in order to effect
any changes that in the reasonable opinion of counsel for the Company or counsel
for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement necessary to consummate the
transactions described herein.
10. Termination. The obligations of the Underwriters under this
-----------
Agreement may be terminated by the Representatives or by Underwriters which have
agreed to purchase in the aggregate 50% or more of the aggregate amount of
Offered Securities by notice given to and received by the Company prior to
delivery of and payment for the Offered Securities if, prior to that time, any
of the events described in Sections 7(i), (k), (l) or (m) (but as to subsection
(l) only, only if the offering is of Debt Securities) shall have occurred or if
the Underwriters shall decline to purchase the Offered Securities for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the Company shall
---------------------------------------
fail to tender the Offered Securities for delivery to the Underwriters by reason
of any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Offered Securities, and upon demand the Company shall pay the full amount
thereof to the Underwriters. If this Agreement is terminated pursuant to
Section 9 by reason of the default of one or more Underwriters, the Company
shall not be obligated to reimburse any defaulting Underwriter for any of its
expenses incurred in connection with this Agreement.
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12. Notices, etc. All statements, requests, notices and agreements
------------
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission as follows: if Xxxxxx Brothers Inc. is the lead
managing Underwriter, c/x Xxxxxx Brothers Inc., Three World Financial Center,
New York, New York 10285, Attention: Syndicate Department (Fax: 000-000-0000),
with a copy, in the case of any notice pursuant to Section 8(c), to the Director
of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., World
Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000; and if Salomon Brothers Inc is
the lead managing Underwriter, c/o Xxxxxxx Xxxxx Xxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department (Fax: 000-000-0000);
and
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: General Counsel (Fax: (000) 000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
----------------------------------------
inure to the benefit of and be binding upon the Underwriters, the Company and
its successors. This Agreement and the terms and provisions hereof are for the
sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the
Securities Act and the other persons specifically mentioned herein and (B) the
indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of the directors of the Company,
officers of the Company and any person controlling the Company within the
meaning of Section 15 of the Securities Act and the other persons specifically
mentioned herein. Nothing in this Agreement is intended or shall be construed
to give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations,
--------
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for any Offered Securities
and shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day," "Significant Subsidiary"
----------------------------------------------------------------
and "Subsidiary." For purposes of this Agreement, (a) "business day" means any
--------------- ------------
day on which the New York Stock Exchange, Inc. is open for trading, (b)
"Subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations
-----------
and (c) "Significant Subsidiary" has the meaning set forth in Item 1-02(w) of
----------------------
the Regulation S-X of the Rules and Regulations.
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16. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of Massachusetts.
17. Counterparts. This Agreement may be executed in counterparts
------------
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
--------
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Remainder of page intentionally left blank]
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If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
THERMO ELECTRON CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
Accepted:
Xxxxxx Brothers Inc.
Salomon Brothers Inc
By: Xxxxxx Brothers Inc.
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
SCHEDULE I
TERMS AGREEMENT
October 26, 1998
To each of the Underwriters
named on Exhibit A hereto
Dear Sirs:
Thermo Electron Corporation, a Delaware corporation (the "Company"),
-------
proposes to issue and sell $150 million aggregate principal amount of its senior
debt securities with the terms set forth below (the "Offered Securities").
------------------
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the underwriters named on Exhibit A hereto (the
---------
"Underwriters") offer to purchase, severally and not jointly, the principal
------------
amount of Offered Securities set forth therein opposite their respective names
at 99.074% of the principal amount thereof.
The Offered Securities shall have the following terms:
Title: 7.625% Notes due 2008
Maturity: October 30, 2008
Interest rate: 7.625% per annum
Price to public: 99.724%
Interest payment dates: October 30 and April 30, commencing April 30,
1999
Redemption provisions: Redeemable at the option of the Company, in whole
or in part, at any time at a redemption price
equal to the greater of (i) 100% of the principal
amount thereof and (ii) the sum of the present
values of the remaining scheduled payments of
principal and interest thereon (not including the
portion of any such payments of interest accrued
as of the redemption date) discounted to the
redemption date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined
in the Senior Indenture) (determined on the third
Business Day (as defined in the Senior Indenture)
preceding such redemption date), plus 0.30%,
plus, in each case, accrued and unpaid interest
thereon to the redemption date.
-2-
Conversion provisions: Not convertible into or exchangeable for Common
Stock of the Company.
Form: To be represented by one or more global notes
registered in the name of a nominee of the
Depository Trust Company.
The Closing Date shall be October 29, 1998.
All the provisions contained in the Underwriting Agreement dated October
26, 1998 between Xxxxxx Brothers Inc. and Salomon Brothers Inc and the Company,
and in the Officers' Certificate to be dated October 29, 1998 executed by the
Company, are herein incorporated by reference (except for provisions that relate
to securities other than Offered Securities designated herein) in their entirety
and shall be deemed to be a part of this Terms Agreement to the same extent as
if such provisions had been set forth in full herein. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company shall not be bound by the provisions of Section 5(i) of the
Underwriting Agreement.
Application has been made to list the Offered Securities on the Luxembourg
Stock Exchange.
Payment for the Offered Securities shall be made to or upon the order of
the Company on the Closing Date, by wire transfer in immediately available
funds.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
-3-
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below.
Very truly yours,
THERMO ELECTRON CORPORATION
Accepted on October 26, 1998
XXXXXX BROTHERS INC. By: /s/ Xxxxxxx X. Xxxxxxxx
SALOMON BROTHERS INC -------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
By: XXXXXX BROTHERS INC.
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
EXHIBIT A
---------
LIST OF UNDERWRITERS
Principal Amount
Underwriter of Notes
----------- --------
Xxxxxx Brothers Inc................................... $ 75,000,000
Salomon Brothers Inc.................................. 75,000,000
------------
Total.............................................. $150,000,000
============
