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EXHIBIT 1(a)
▇▇▇▇▇ CORPORATION
("Company")
Common Shares
TERMS AGREEMENT
---------------
July 1, 1999
▇▇▇▇▇ CORPORATION
▇▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
We offer to purchase, on and subject to the terms and conditions of the
Underwriting Agreement attached hereto as Appendix A ("Underwriting Agreement"),
the following securities ("Securities") on the following terms:
Title: Common Shares (par value $.50)
Number of Shares: 1,625,000
The Company does not grant to us an option to purchase additional
Securities to cover any over-allotments.
Purchase Price: $90.505 per share.
Expected Reoffering Price: $92.00 per share, subject to change by the
undersigned.
Lock-Up: During the period beginning from the date of this Terms
Agreement and continuing until and including the date 90 days after the date of
this Terms Agreement, the Company will not, directly or indirectly, offer, sell,
offer to sell, contract to sell or otherwise dispose of any common shares or any
of its securities that are substantially similar to the common shares, including
any securities that are convertible into or exchangeable for, or that represent
the right to receive, common shares or any such substantially similar
securities, or enter into any swap, option, future, forward or other agreement
that transfers, in whole or in part, the economic consequence of ownership of
common shares or any securities substantially similar to the common shares,
other than issuances of common shares by the Company as consideration for
acquisitions and issuances under dividend reinvestment, employee benefit or
executive compensation plans existing on the date of this Terms Agreement,
without our prior written consent.
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Closing: 10:00 A.M. on July 7, 1999 (the "Closing Date"), at the
offices of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, by wire
transfer, payable to the order of the Company in Federal (same day) funds.
The Securities will be made available for checking and packaging at our
offices, or at our option at the office of The Depository Trust Company, at
least 24 hours prior to the Closing Date.
Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By__________________________________
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To: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
We accept the offer contained in your letter, dated July 1, 1999,
relating to 1,625,000 Common Shares (par value $.50 per share). We also confirm
that, to the best of our knowledge after reasonable investigation, the
representations and warranties of the undersigned in the Underwriting Agreement
attached to your letter ("Underwriting Agreement") are true and correct, no stop
order suspending the effectiveness of the Registration Statement (as defined in
the Underwriting Agreement) or any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the U.S. Prospectus (as defined in the Underwriting Agreement), there has been
no material adverse change in the financial position or results of operations of
the undersigned and its Subsidiaries, except as set forth in or contemplated by
the U.S. Prospectus.
Very truly yours,
▇▇▇▇▇ CORPORATION
By___________________________
Name:
By___________________________
Name:
Dated: July 1, 1999
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▇▇▇▇▇ CORPORATION
DEBT SECURITIES - PREFERRED SHARES
COMMON SHARES - WARRANT SECURITIES
UNDERWRITING AGREEMENT
----------------------
1. Introductory. ▇▇▇▇▇ Corporation, an Ohio corporation
("Company"), proposes to issue and sell from time to time:
(a) certain of its debt securities registered under one of
the registration statements referred to in Section 2(a) ("Registered
Debt Securities"). The Registered Debt Securities will be issued under
an indenture dated as of April 1, 1994 ("Senior Indenture") for the
issuance of the Company's senior debt securities ("Senior Debt
Securities"), between the Company and The Chase Manhattan Bank, as
successor by merger to Chemical Bank, as Trustee ("Senior Trustee"), or
an indenture ("Subordinated Indenture") for the issuance of the
Company's subordinated debt securities ("Subordinated Debt
Securities"), between the Company and The Chase Manhattan Bank, as
successor by merger to Chemical Bank, as Trustee ("Subordinated
Trustee"), each in one or more series, each of which such series may
vary as to interest rates, maturities, redemption provisions, selling
prices, terms of conversion, in the case of Subordinated Debt
Securities, if any ("Convertible Subordinated Debt Securities"), and
other terms, with all such terms for any particular series of the
Registered Debt Securities being determined at the time of sale.
Particular series of the Registered Debt Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale;
(b) certain of its shares of its preferred stock registered
under one of the registration statements referred to in Section 2(a)
("Registered Preferred Shares"). The Registered Preferred Shares may be
issued in one or more series, which series may vary as to dividend
rates, redemption provisions, selling prices and other terms, with all
such terms for any particular series of the Registered Preferred Shares
being determined at the time of sale. Particular series of the
Registered Preferred Shares will be sold pursuant to a Terms Agreement
referred to in Section 3, for resale in accordance with terms of
offering determined at the time of sale;
(c) certain of its common shares ("Common Shares") registered
under one of the registration statements referred to in Section 2(a)
("Registered Common Shares"). Particular offerings of the Registered
Common Shares will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with terms of offering determined
at the time of sale; and
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(d) certain of its warrant securities registered under one of
the registration statements referred to in Section 2(a) ("Registered
Warrant Securities"). The Registered Warrant Securities will be issued
under a warrant agreement, ("Warrant Agreement") between the Company
and the organization to be named therein upon the execution thereof, as
Warrant Agent, in one or more series, which series may vary as to
expiration date, conversion terms, premium price, if any, and other
terms, with all such terms for any particular series of the Registered
Warrant Securities being determined at the time of sale. Particular
series of the Registered Warrant Securities will be sold pursuant to a
Terms Agreement referred to in Section 3, for resale in accordance with
terms of offering determined at the time of sale.
The Registered Debt Securities, Registered Preferred Shares,
Registered Common Shares and Registered Warrant Securities are collectively
referred to herein as the "Registered Securities". The Registered Securities
(including any combination of such securities) involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriter" or
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters. It is understood that the Company may from time to time agree to
sell Securities to a certain firm or firms ("Manager" or "Managers") outside the
United States and Canada, such Manager or Managers to be specified in, and said
Securities to be sold pursuant to, a Terms Agreement (such Terms Agreement being
referred to therein by such Managers as a Subscription Agreement). As used
herein, the terms Underwriter and Underwriters are deemed to include, unless the
context otherwise specifies or requires, the Manager or Managers. The
Underwriters and Managers (or Underwriter and Manager) may provide for the
coordination of their activities by entering into an Agreement between U.S.
Underwriters and Managers which may permit them, among other things, to sell
Securities to each other for purposes of resale. As used herein the term "United
States" shall mean the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction and "Canada" means Canada, its provinces, territories and
possessions and other areas subject to its jurisdiction.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter and each Manager
that:
(a) A registration statement (No. 333-74355), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the
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"Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect (i) if Registered Debt Securities, Registered Preferred Shares
or Registered Warrant Securities are offered, the terms of the
Securities and the terms of offering thereof and (ii) if Registered
Common Share Securities are offered, the terms of offering of the
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of
1933 ("Act"), including all material incorporated by reference therein,
is hereinafter referred to as the "U.S. Prospectus". The prospectus
relating to the Securities to be sold by the Company to the Manager or
Managers, as supplemented by a prospectus supplement as of the time of
the applicable Terms Agreement, which will be identical to the U.S.
Prospectus except as provided in such Terms Agreement, is hereinafter
referred to as the "International Prospectus" (collectively the U.S.
Prospectus and the International Prospectus are hereinafter referred to
as the "Prospectuses").
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act") and the rules
and regulations of the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. Each preliminary prospectus, as of
the date thereof, and the Registration Statement and the U.S.
Prospectus and International Prospectus, as the case may be, on the
date of each Terms Agreement referred to in Section 3, will conform in
all material respects to the requirements of the Act and the Rules and
Regulations and, if Registered Debt Securities are offered by the U.S.
Prospectus or the International Prospectus, the Trust Indenture Act,
and neither of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements in or omissions
from any of such documents based upon written information furnished to
the Company by any (i) Underwriter through the Representatives, if any,
specifically for use in the U.S. Prospectus or (ii) any Manager
specifically for use in the International Prospectus.
(c) To the best knowledge of the Company, there is no existing
or imminent labor dispute or organizational effort by the employees of
the Company or any of its Subsidiaries (as defined in subsection (e))
or any existing or imminent labor disturbance by the employees of any
of its or any Subsidiary's principal suppliers, contractors or
customers that is reasonably expected to have a material adverse effect
upon the business, properties, financial condition, results of
operations or prospects of the Company and its Subsidiaries taken as a
whole.
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(d) Except as disclosed in the Registration Statement and
except as is not reasonably expected to have a material adverse effect
upon the business, properties, financial condition, results of
operations or prospects of the Company and its Subsidiaries taken as a
whole, each of the Company and its Subsidiaries is in compliance with
all applicable Environmental Laws. As used herein, "Environmental Laws"
means any United States or Canadian, federal, state, local or municipal
statute, law, rule, regulation, ordinance, judicial or administrative
order, consent decree or judgment, relating to the protection of the
environment, the protection of public health and safety from
environmental concerns or the protection of worker health and safety.
(e) Neither the Company nor any of its subsidiaries (as
defined in Rule 1.02(x) of Regulation S-X) (each a "Subsidiary" and,
collectively, the "Subsidiaries") is in violation of its articles or
certificate of incorporation or regulations or bylaws or in default
under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its
Subsidiaries taken as a whole.
(f) Except as described in (or incorporated by reference in)
the Registration Statement and each U.S. Prospectus or International
Prospectus, there has not been any material adverse change in, or any
adverse development which materially affects, the business, properties,
financial condition, results of operations or prospects of the Company
and its Subsidiaries taken as a whole from the dates as of which
information is given in the Registration Statement and each U.S.
Prospectus and International Prospectus.
(g) Ernst & Young LLP, whose report appears in the Company's
most recent Annual Report on Form 10-K which is incorporated by
reference in the Registration Statement and each U.S. Prospectus and
International Prospectus and who have examined certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the Rules and Regulations.
(h) The Company and Aeroquip-▇▇▇▇▇▇▇, Inc., ▇▇▇▇▇
Administration Corporation, ▇▇▇▇▇ MDH Company, Inc., Eaton MDH
Limited Partnership, ▇▇▇▇▇▇ Hammer, Inc. and ▇▇▇▇▇▇ Hammer de Puerto
Rico Inc. (each a "Significant Subsidiary", which together constitute
all of the significant subsidiaries (as defined in Rule 1.02(w) of
Regulation SX) of the Company) have each been duly incorporated, are
validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership of property or the
conduct of their respective businesses requires such qualification
(except where the failure to so qualify would not have a material
adverse effect upon the Company and its Subsidiaries taken as a
whole), and have power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are
engaged. All of the issued and outstanding
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stock of each Significant Subsidiary has been duly authorized and
validly issued and is fully paid and nonassessable. The Company owns
all of the issued and outstanding shares of each Significant
Subsidiary, directly or through one or more Subsidiaries, except to
the extent of shares owned of record by directors for the purpose of
qualification as such, free and clear of any pledges, liens,
encumbrances, claims or equities, and except that as of June 30, 1999,
338,117 shares of Aeroquip-▇▇▇▇▇▇▇, Inc. capital stock had not been
tendered to the Company in connection with the acquisition by the
Company of Aeroquip-▇▇▇▇▇▇▇, Inc.
(i) Except as described in (or incorporated by reference in)
each U.S. Prospectus and International Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries
which is reasonably expected by the Company to result in any material
adverse change in the business, properties, financial condition,
results of operations or prospects of the Company and its Subsidiaries
taken as a whole or which is required to be disclosed in (or
incorporated by reference in) the Registration Statement.
(j) The financial statements filed as part of, or incorporated
by reference in, the Registration Statement or included in, or
incorporated by reference in, any preliminary prospectus, U.S.
Prospectus or International Prospectus present, or (in the case of any
amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will present, at all times during the period specified in Section
4(b) hereof, fairly, the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the
date as of which this representation is being made) will be, at all
times during the period specified in Section 4(b) hereof, prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise
disclosed in such financial statements.
The unaudited pro forma financial information, if any, filed as a part
of, or incorporated by reference in, the Registration Statement or
included in, or incorporated by reference in, any preliminary
prospectus, U.S. Prospectus or International Prospectus present, or (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is made) will
present, at all times during the period specified in Section 4(b)
hereof, fairly, on the basis set forth in any such document, the
information set forth therein, has been prepared in accordance with the
Rules and Regulations and the guidelines of the Commission with respect
to pro forma financial information, has been properly compiled on the
pro forma bases set forth therein, the assumptions used in the
preparation thereof are reasonable and the adjustments used
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therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(k) The documents incorporated by reference into the
Registration Statement, and each preliminary prospectus, U.S.
Prospectus and International Prospectus conformed on the respective
dates such documents were filed with the Commission (or, if the
International Prospectus and each related preliminary prospectus is not
filed with the Commission, first used by the Managers) and (in the case
of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will conform at all times in all material respects during the
period specified in Section 4(b) hereof, with the applicable
requirements of the Act and the Rules and Regulations and the
Securities Exchange Act of 1934, as amended (the "Securities Exchange
Act") and the rules and regulations of the Commission thereunder and
such documents have been, or (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the
date as of which this representation is being made) will be at all
times during the period specified in Section 4(b) hereof timely filed
as required thereby.
(l) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the
Act or by the Rules and Regulations, or which were required to be filed
as exhibits to any document incorporated by reference in any U.S.
Prospectus or International Prospectus by the Securities Exchange Act
or the rules and regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration Statement or to such
document or incorporated therein by reference as permitted by the Rules
and Regulations or the rules and regulations of the Commission under
the Securities Exchange Act as required.
(m) The Company is not, and after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the United States Investment
Company act of 1940, as amended (the "Investment Company Act").
(n) The Company has (i) initiated a review of its operations
and those of its subsidiaries and any third parties with which the
Company or any of its subsidiaries has a material relationship to
evaluate the extent to which the business or operations of the Company
or any of its subsidiaries will be affected by the Year 2000 Problem,
(ii) developed a plan for addressing the Year 2000 Problem and (iii) is
implementing that plan. As a result of those actions, nothing has come
to the attention of the Company which would cause the Company to
believe, and the Company does not believe, that the Year 2000 Problem
will have a material adverse effect upon the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries, taken as a whole. The "Year 2000 Problem" as used
herein means any significant risk
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that computer hardware or software used in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as
in the case of dates or time periods occurring prior to January 1,
2000. The disclosure contained in the U.S. Prospectus and the
International Prospectus with respect to the Year 2000 Problem is
accurate, complete and fair in all material respects; and
(o) with respect to all Securities which are Senior Debt
Securities --
(i) The Senior Indenture, including any amendments
and supplements thereto, pursuant to which the Senior Debt
Securities will be issued, will conform with the requirements
of the Trust Indenture Act on the Closing Date (as defined in
Section 3 hereof).
(ii) The execution, delivery and performance by the
Company of this Agreement and any Delayed Delivery Contracts
(as defined in Section 3 hereof) and compliance by the Company
with the provisions contained herein, in the Senior Debt
Securities and in the Senior Indenture will not conflict with,
result in the creation or imposition of any lien, charge or
encumbrance upon any of the respective assets of the Company
or any of its Subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement, indenture
or instrument, or result in a violation of the articles or
certificate of incorporation or regulations, as amended, of
the Company or any of its Subsidiaries or any law, order, rule
or regulation of any court or governmental agency having
jurisdiction over the Company, any of its Subsidiaries or
their respective properties; and, except as required by the
Act, the Trust Indenture Act, the Securities Exchange Act and
applicable state securities laws or foreign laws, no consent,
authorization or order of, or filing or registration with, any
court or governmental agency is required for the issuance and
sale of the Senior Debt Securities or the execution, delivery
and performance of this Agreement, the Delayed Delivery
Contracts, if any, and the Senior Indenture.
(iii) On the Closing Date, (A) the Senior Indenture
will have been duly authorized, executed and delivered by the
Company and will constitute the legally binding obligation of
the Company, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law), (B) the Senior Debt Securities will have been validly
authorized and, when duly executed, authenticated and
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delivered in accordance with the Senior Indenture, upon
payment thereof as provided in this Agreement, will be validly
issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the
Senior Indenture, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law)
and (C) the Senior Debt Securities and the Senior Indenture
will conform in all material respects to the descriptions
thereof contained in the U.S. Prospectus and International
Prospectus.
(p) with respect to all Securities which are Subordinated Debt
Securities --
(i) The Subordinated Indenture, including any
amendments and supplements thereto, pursuant to which the
Subordinated Debt Securities will be issued, will conform with
the requirements of the Trust Indenture Act on the Closing
Date.
(ii) The execution, delivery and performance by the
Company of this Agreement and any Delayed Delivery Contracts
and compliance by the Company with the provisions contained
herein, in the Subordinated Debt Securities and in the
Subordinated Indenture will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon
any of the respective assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument, or
result in a violation of the articles or certificate of
incorporation or amended regulations of the Company or any of
its Subsidiaries or any law, order, rule or regulation of any
court or governmental agency having jurisdiction over the
Company, any of its Subsidiaries or their respective
properties; and, except as required by the Act, the Trust
Indenture Act, the Securities Exchange Act and applicable
state securities laws or foreign laws, no consent,
authorization or order of, or filing or registration with, any
court or governmental agency is required for the issuance and
sale of the Subordinated Debt Securities or the execution,
delivery and performance of this Agreement, the Delayed
Delivery Contracts, if any, and the Subordinated Indenture.
(iii) On the Closing Date, (A) the Subordinated
Indenture will have been validly authorized, executed and
delivered by the Company and will constitute the legally
binding obligation of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
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laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), (B) the Subordinated Debt
Securities will have been validly authorized and, when duly
executed, authenticated and delivered in accordance with the
Subordinated Indenture, upon payment therefor as provided in
this Agreement, will be validly issued and outstanding, and
will constitute legally binding obligations of the Company
entitled to the benefits of the Subordinated Indenture, except
as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law)
and (C) the Subordinated Debt Securities and the Subordinated
Indenture will conform in all material respects to the
descriptions thereof contained in the U.S. Prospectus and
International Prospectus.
(q) with respect to all Securities which are Convertible
Subordinated Debt Securities --
(i) On the Closing Date, the Company will have
reserved and will, at all times, keep available for issuance
upon the conversion of the Convertible Subordinated Debt
Securities such number of its authorized but unissued Common
Shares deliverable upon conversion of the Convertible
Subordinated Debt Securities as will be sufficient to permit
the conversion in full of all outstanding Convertible
Subordinated Debt Securities.
(ii) On the Closing Date, the Common Shares will
conform in all material respects to the description thereof
contained in the U.S. Prospectus and International Prospectus.
(iii) All corporate action required to be taken for
the authorization, issuance and delivery of the Common Shares
issuable upon conversion of the Convertible Subordinated Debt
Securities has been validly taken; when issued and delivered
in accordance with the terms of the Convertible Subordinated
Indenture, such Common Shares will be validly issued, fully
paid and nonassessable; and the issuance of the Convertible
Subordinated Debt Securities is not, and the issuance of any
such Common Shares will not be, subject to the preemptive
rights of any stockholder of the Company.
(r) with respect to all Securities which are Registered
Warrant Securities --
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(i) The Senior Indenture, including any amendments
and supplements thereto, pursuant to which the Senior Debt
Securities will be issued upon exercise of the Registered
Warrant Securities, will conform with the requirements of the
Trust Indenture Act on the Closing Date .
(ii) The execution, delivery and performance by the
Company of this Agreement and any Delayed Delivery Contracts
and compliance by the Company with the provisions contained
herein, in the Registered Warrant Securities, in the Senior
Debt Securities issuable upon exercise of the Registered
Warrant Securities, in the Warrant Agreement and in the Senior
Indenture will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the
respective assets of the Company or any of its Subsidiaries
pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument, or result in a
violation of the articles or certificate of incorporation or
amended regulations of the Company or any of its Subsidiaries
or any law, order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any
of its Subsidiaries or their respective properties; and,
except as required by the Act, the Trust Indenture Act, the
Securities Exchange Act and applicable state securities laws,
no consent, authorization or order of, or filing or
registration with, any court or governmental agency is
required for the issuance and sale of the Registered Warrant
Securities and the Senior Debt Securities issuable upon
exercise of the Registered Warrant Securities or the
execution, delivery and performance of this Agreement, the
Delayed Delivery Contracts, if any, the Warrant Agreement and
the Senior Indenture.
(iii) On the Closing Date, (A) the Warrant Agreement
and the Senior Indenture will have been validly authorized,
executed and delivered by the Company and will constitute the
legally binding obligation of the Company, except as
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), (B) the Registered Warrant
Securities will have been validly authorized and, when duly
executed, authenticated and delivered in accordance with the
Subordinated Indenture, upon payment therefor as provided in
this Agreement, will be validly issued and outstanding, and
will constitute legally binding obligations of the Company,
except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether
enforcement is
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considered in a proceeding in equity or at law), (C) the
Registered Warrant Securities, the Warrant Agreement, the
Senior Debt Securities issuable upon the exercise of the
Registered Warrant Securities and the Senior Indenture will
conform in all material respects to the descriptions thereof
contained in the U.S. Prospectus and International Prospectus
and (D) the Senior Debt Securities issuable upon the exercise
of the Registered Warrant Securities will have been validly
authorized and, when issued and delivered in accordance with
the terms of the Registered Warrant Securities and the Senior
Indenture, will be validly issued and outstanding, and will
constitute legally binding obligations of the Company entitled
to the benefits of the Senior Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(s) with respect to all Securities which are Registered
Preferred Shares --
(i) The execution, delivery and performance by the
Company of this Agreement and any Delayed Delivery Contracts
and compliance by the Company with the provisions contained
herein, in the Registered Preferred Shares and in the
Certificate of Designations will not conflict with, result in
the creation or imposition of any lien, charge or encumbrance
upon any of the respective assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument, or
result in a violation of the articles or certificate of
incorporation or amended regulations of the Company or any of
its Subsidiaries or any law, order, rule or regulation of any
court or governmental agency having jurisdiction over the
Company, any of its Subsidiaries or their respective
properties, and, except as required by the Act, the Securities
Exchange Act and applicable state securities laws or foreign
laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is
required for the issuance and sale of the Registered Preferred
Shares, or the execution, delivery and performance of this
Agreement or the Delayed Delivery Contracts, if any.
(ii) The authorization, creation, issuance and sale
of the Registered Preferred Shares and compliance by the
Company with all of the provisions of the Certificate of
Designations are within the corporate powers of the Company.
(iii) On the Closing Date, the Registered Preferred
Shares will have been validly authorized and, when duly
executed, authenticated and delivered,
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upon payment therefor as provided in this Agreement, will be
validly issued, fully paid and nonassessable.
(iv) If the Registered Preferred Shares are
convertible into Common Shares, on the Closing Date any Common
Shares issuable upon conversion of the Registered Preferred
Shares will have been duly authorized by the Company and, when
issued and delivered in accordance with the Registered
Preferred Shares and the Certificate of Designations, will be
validly issued, fully paid and nonassessable.
(v) If the Registered Preferred Shares are
convertible into Common Shares, on the Closing Date the
Company will have reserved and will, at all times, keep
available for issuance upon the conversion of the Registered
Preferred Shares such number of its authorized but unissued
Common Shares deliverable upon conversion of the Registered
Preferred Shares as will be sufficient to permit the
conversion in full of all outstanding Registered Preferred
Shares.
(vi) All corporate action required to be taken for
the authorization, issuance and delivery of any shares of
Common Shares issuable upon conversion of the Registered
Preferred Shares has been validly taken, and the issuance of
the Registered Preferred Shares is not, and the issuance of
any such shares of Common Shares will not be, subject to any
preemptive rights of any stockholder of the Company.
(t) with respect to all Securities which are Registered Common
Shares --
(i) The execution, delivery and performance by the
Company of this Agreement and compliance by the Company with
the provisions contained herein, will not conflict with,
result in the creation or imposition of any lien, charge or
encumbrance upon any of the respective assets of the Company
or any of its Subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement, indenture
or instrument, or result in a violation of the articles or
certificate of incorporation or amended regulations of the
Company or any of its Subsidiaries or any law, order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, any of its Subsidiaries or
their respective properties, and, except as required by the
Act, the Securities Exchange Act and applicable state
securities laws or foreign laws, no consent, authorization or
order of, or filing or registration with, any court or
governmental agency is required for the issuance and sale of
the Registered Common Shares, or the execution, delivery and
performance of this Agreement.
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(ii) All corporate action required to be taken for
the authorization, issuance and delivery of the Registered
Common Shares has been validly taken, and the issuance of the
Registered Common Shares is not, and will not be, subject to
any preemptive rights of any stockholder of the Company.
Any certificate signed by any officer of the Company and delivered to the
Representatives, the Managers or to counsel for the Underwriters pursuant to
this Agreement shall be deemed to be a representation and warranty by the
Company to each Underwriter (or each Manager) as to the matters covered thereby.
3. Purchase and Offering of Securities. The obligation of the
Underwriters, if any, and the obligation of the Managers, if any, to purchase
the Securities will be evidenced by an exchange of telegraphic or other written
communications ("Terms Agreement"1) at the time the Company determines to sell
the Securities. All references herein to this Agreement include the applicable
Terms Agreement. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and will
specify the firm or firms which will be Underwriters or Managers, the names of
any Representatives, the principal amount or number of shares to be purchased by
each Underwriter and Manager, and the purchase price to be paid by the
Underwriters and Managers and, if the Securities include Registered Debt
Securities, Registered Preferred Shares or Registered Warrant Securities, the
terms of such Securities not already specified in the Indenture, Certificate of
Designations or Warrant Agreement, respectively, including, but not limited to,
interest or dividend rate, maturity, redemption provisions and sinking fund
requirements, whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below), expiration
date and conversion terms (if any such terms are to be applicable). If the
Company grants the Underwriters (or Managers) an option to purchase additional
Securities to cover over-allotments, the terms of such option (or options) will
be specified in the Terms Agreement. The Terms Agreement will also specify the
time and date of delivery and payment (such time and date, or such other time
not later than seven full business days thereafter as the Representatives (and
the Managers) and the Company agree as the time for payment and delivery, being
herein and in the Terms Agreement referred to as the "Closing Date"2), the place
of delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement (or prospectus supplements) relating to
the offering of the Securities. The obligations of the Underwriters and Managers
to purchase the Securities will be several and not
----------------
1 Any such Terms Agreement relating to the purchase of such Securities by
the Manager or Managers will be referred to therein as a "Subscription
Agreement".
2 If the Company grants the Underwriters (and Managers) an option to
purchase additional Securities to cover over-allotments, such Terms
Agreement will specify the time for the delivery of and payment for
such Securities, which such time may be the Closing Date.
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joint. It is understood that the Underwriters and Managers propose to offer the
Securities for sale as set forth in the U.S. Prospectus and International
Prospectus, respectively. The certificates for the Securities delivered to the
Underwriters and Managers on the Closing Date will be in definitive form and, if
applicable, fully registered form and in such denominations, and will be
registered in such names, as the Underwriters and Managers may reasonably
request.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
(and the Managers) to solicit offers to purchase Securities pursuant to delayed
delivery contracts substantially in the form of Annex I attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. On the
Closing Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters (and to the Managers, if applicable), the fee
set forth in such Terms Agreement in respect of the principal amount or number
of shares of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters (and Managers) will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters (and Managers) and the aggregate principal amount or number
of shares of Securities to be purchased will be reduced pro rata in proportion
of the aggregate principal amount or number of shares of Securities set forth
opposite each Underwriter's (and Manager's) name in such Terms Agreement, except
to the extent that the Representatives (or Managers) determine and agree that
such reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives (and Managers) not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with
the several Underwriters that it will furnish to Shearman & Sterling, counsel
for the Underwriters, as many signed copies of the registration statement as
they may reasonably request relating to the Registered Securities, including all
exhibits, in the form in which it became effective and of all amendments thereto
and that, in connection with each offering of Securities:
(a) The Company will file the U.S. Prospectus with the
Commission pursuant to and in accordance with Rule 424(b)(1) or Rule
424(b)(2) (or, if applicable and if consented to by the
Representatives, subparagraph (5), which consent will not be
unreasonably withheld) not later than the second business day following
the execution and delivery of the Terms Agreement; if the Securities to
be purchased by the Managers are to be registered under the
Registration Statement, the Company will file the International
Prospectus with the Commission pursuant to and in accordance with Rule
424(b)(1) or Rule 424(b)(2) (or, if applicable and if consented to by
the Managers,
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subparagraph (5), which consent will not be unreasonably withheld) not
later than the second business day following the execution and delivery
of the Subscription Agreement.
(b) The Company will, during the period following the date of
the Terms Agreement as, in the opinion of counsel for the Underwriters,
any U.S. Prospectus or International Prospectus is required by law to
be delivered, advise the Representatives (and Managers), promptly of
any proposal to amend or supplement the Registration Statement or the
U.S. Prospectus or International Prospectus and will afford the
Representatives (and Managers) a reasonable opportunity to comment on
any such proposed amendment or supplement; and the Company will also
advise the Representatives (and Managers) promptly of the filing of any
such amendment or supplement.
(c) The Company will advise the Representatives (and Managers)
(i) of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement or of any part thereof and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued, (ii)
when any post-effective amendment to the Registration Statement
relating to or covering the Securities becomes effective, (iii) of any
request or proposed request by the Commission for (A) an amendment or
supplement to the Registration Statement (insofar as the amendment or
supplement relates to or covers the Securities), the U.S. Prospectus or
International Prospectus or any document incorporated by reference in
any of the foregoing or (B) any additional information and (iv) of
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose.
(d) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the U.S. Prospectus or International Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
the U.S. Prospectus or International Prospectus to comply with the Act,
the Company promptly will prepare and file with the Commission an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither the
Representatives' (or Managers') consent to, nor the Underwriters' (or
Managers') delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(e) As soon as practicable after the date of each Terms
Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of
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the registration statement relating to the Registered Securities, (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Terms Agreement, which will satisfy the provisions of Section 11(a) of
the Act.
(f) The Company will furnish to the Representatives (and
Managers) copies of the Registration Statement (including all exhibits,
the form of Senior Indenture, the form of Subordinated Indenture, the
form of Warrant Agreement, the form of Certificate of Designations and
this Agreement), any related preliminary prospectus, any related
preliminary prospectus supplement, the U.S. Prospectus and
International Prospectus and all amendments and supplements to such
documents, in each case, as soon as available and in such quantities as
are reasonably requested.
(g) The Company will arrange for the qualification of the
Securities for sale under the securities laws of such jurisdictions in
the United States and Canada as the Representatives may reasonably
designate and will continue such qualifications in effect so long as
required for the distribution.
(h) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (and Managers) (i) as soon as publicly available, a
copy of each report or definitive proxy statement of the Company filed
with the Commission under the Securities Exchange Act, or mailed to
stockholders and (ii) from time to time, such other publicly available
information concerning the Company as the Representatives (and
Managers) may reasonably request.
(i) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives (and Managers) may reasonably
designate and the printing of memoranda relating thereto, for any fees
paid to any Trustee, for any fees charged by investment rating agencies
for the rating of the Securities (if applicable), for the filing fees
of the National Association of Securities Dealers, Inc. and any state
relating to the Securities, for the fees and expenses of listing the
Securities on any securities exchange or market, if the Securities are
to be listed on any securities exchange or market, and for expenses
incurred in distributing the U.S. Prospectus and International
Prospectus, any preliminary prospectuses and any preliminary prospectus
supplements to Underwriters (or Managers).
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(j) If and to the extent specified in the Terms Agreement, for
a period beginning at the time of execution of the Terms Agreement and
ending such numbers of days after the Closing Date as specified in the
Terms Agreement, without the prior consent of the Representatives (and
Managers), the Company will not offer, sell, contract to sell or
otherwise dispose of any securities that are similar in terms to the
Securities other than in those circumstances specified in the terms
Agreement.
(k) Until the termination of the offering of the Securities,
to timely file all documents, and any amendments to previously filed
documents, required to be filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act.
(l) If the Terms Agreement specifies that the Securities are
to be listed on any stock exchange or exchanges or market, to apply
prior to the Closing Date, unless otherwise agreed to by the
Representatives, for the listing of the Securities on such exchange or
exchanges or market, and to use its reasonable best efforts to complete
such listings.
(m) The Company will comply (and has complied) with all of the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida statutes, and all regulations promulgated thereunder relating
to issuers doing business with Cuba.
5. Conditions of the Obligations of the Underwriters and
Managers. The obligations of the several Underwriters (and Managers) to purchase
and pay for the Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the written statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives (and Managers) shall have received a letter, dated the
date of delivery thereof, of Ernst & Young LLP (the Company's
independent accountants) confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and
schedules examined by them and included in the prospectus or
prospectuses contained in the Registration Statement relating
to the Registered Securities, as amended at the
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date of such letter, comply in form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and Regulations.
(ii) they have, as indicated in their report or
reports attached to such letter, made a review of any
unaudited financial statements included in such prospectus in
accordance with standards established by the American
Institute of Certified Public Accountants.
(iii) on the basis of the review referred to in (ii)
above, a reading of the latest available interim financial
statements of the Company, and inquiries of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that the unaudited
financial statements, if any, included in such prospectus or
prospectuses do not comply in form in all material respects
with the applicable accounting requirements of the Act, the
Securities Exchange Act and the related published Rules and
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included in such U.S. Prospectus and International Prospectus.
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in such prospectus or
prospectuses (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company and
its Subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
(v) from the date of the latest balance sheet of the
Company and its Subsidiaries included or incorporated by
reference in the Prospectuses to a specified date not more
than five days from the date of such letter, there was not any
change in the capital stock of the Company (other than by
reason of shares issued pursuant to the Company's employee or
director stock option plans, or stock ownership plans, stock
bonus plans, stock compensation plans or dividend reinvestment
plans or upon conversion of convertible securities or in
connection with acquisitions or distributions previously
disclosed to the Representatives and Managers), any increase
in the long-term debt or short-term debt of the Company
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and its consolidated Subsidiaries or any decrease in
consolidated net assets of the Company and its consolidated
Subsidiaries, in each case as compared with amounts shown in
such latest balance sheet or any decrease in consolidated net
sales or the total or per share amounts of consolidated net
income, in each case as compared with the comparable period in
the preceding year, except in each case for changes, increases
or decreases which the Prospectuses disclose have occurred or
may occur or which are described in such letter or letters.
(vi) they have read the unaudited pro forma financial
information, if any, contained in the U.S. Prospectus and the
International Prospectus and nothing came to their attention
that caused them to believe that the unaudited pro forma
financial information does not comply in all material respects
with the applicable requirements of Rule 11.02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of the
unaudited pro forma financial information.
All financial statements and schedules included in material
incorporated by reference into such Prospectuses shall be deemed
included in such Prospectuses for purposes of this subsection.
On or prior to the date of the Terms Agreement, the
Representatives (and Managers) shall have received a letter from an accounting
firm acceptable to the Underwriters (and Managers), dated the date thereof, with
respect to any financial statements of an entity other than the Company which
are included in the U.S. Prospectus and the International Prospectus and not
covered by the letter required to be delivered by Ernst & Young LLP, covering
substantially the same required statements described above.
(b) The U.S. Prospectus, and, if applicable, the International
Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 4(a) of this Agreement. No stop
order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company
or any Underwriter, shall be contemplated by the Commission.
(c) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited statements included
in the U.S. Prospectus and the International Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the U.S. Prospectus and the International
Prospectus, and (ii) since the respective dates as of which information
is given in the U.S. Prospectus and the International Prospectus there
shall not have been any change in the capital stock or long-term debt
of the
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Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the U.S. Prospectus and
the International Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is reasonably expected to have a
material adverse effect upon the business, properties, financial
condition, results of operations or prospects of the Company and its
subsidiaries, taken as a whole;
(d) Subsequent to the execution of the Terms Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's
debt securities or preferred stock by Fitch IBCA Investors Service
L.P., ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings
Group, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred stock;
(e) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of major
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Underwriters
(or Managers) makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in
the manner contemplated in the U.S. Prospectus and the International
Prospectus;
(f) The Representatives (and Managers) shall have received an
opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice
President and General Counsel of the Company:
(i) with respect to all Securities, to the effect
stated in Annex II-A.
(ii) with respect to all Securities which are Senior
Debt Securities, to the effect stated in Annex II-B.
(iii) with respect to all Securities which are
Subordinated Debt Securities, to the effect stated in Annex
II-C.
(iv) with respect to all Securities which are
Registered Warrant Securities, to the effect stated in Annex
II-D.
(v) with respect to all Securities which are
Registered Preferred Shares, to the effect stated in Annex
II-E.
(vi) with respect to Securities that are Registered
Common Shares, to the effect stated in Annex II-F.
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Such counsel shall further state in that opinion that he has
participated in the preparation of the Registration Statement
and the Prospectuses, and no facts have come to his attention
that lead him to believe that (i) the Registration Statement
(except for the financial statements, supporting schedules or
other financial data included or incorporated therein, or
omitted therefrom, as to which such counsel need express no
opinion), at the time the Registration Statement became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
(ii) the Prospectuses, on the date of this Agreement or at the
Closing Date (except for the financial statements, supporting
schedules or other financial data included or incorporated
therein, or omitted therefrom, as to which such counsel need
express no opinion), contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Insofar as such
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opinion relates to or involves matters of law of any
jurisdiction other than Ohio, the opinion may be given in
reliance on an opinion of counsel of that jurisdiction, a copy
of which opinion shall be furnished to each Representative
(and Manager), in which case the opinion shall state that he
believes that each Representative (and Manager) and he are
entitled to so rely.
(g) The Representatives (and the Managers) shall have received
from Shearman & Sterling, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of
the Company, the validity of the Securities, the Registration
Statement, the Prospectuses, the indentures, Warrant Agreement or
Certificate of Designations and other related matters as they are
prepared to opine, and the Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Shearman & Sterling may rely as to the incorporation of the Company and
all other matters governed by the law of the State of Ohio upon the
opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ referred to above.
(h) The Representatives (and Managers) shall have received a
certificate, dated the Closing Date, of the President or any
Vice-President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct, that
the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission and certifying as to the matters in
subsections (c) and (d) of this Section 5 and such other matters as the
Underwriter may reasonably request.
(i) The Representatives (and Managers) shall have received a
separate letter ("bring-down letter"), dated the Closing Date, of Ernst
& Young LLP, if applicable, and any other accounting firm with respect
to the financial statements, if any contemplated by the last paragraph
of subsection (a) of this Section 5 which state in effect that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating, as
of the date of the bringdown letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the U.S. Prospectus
and the International Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by the initial letter and confirming the
conclusions and findings set forth in their original letter
contemplated in subsection (a) of this Section 5.
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The Company will furnish the Representatives (and Managers) with such conformed
copies of such opinions, certificates, letters and documents as they reasonably
request.
(j) Payment for and delivery of the Securities to be purchased
by the Underwriters will occur simultaneously with the payment for and delivery
of the Securities, if any, to be purchased by the Managers.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter and each Manager against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter and such Manager may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the U.S.
Prospectus and International Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus or preliminary prospectus supplement, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter and each
Manager for any legal or other expenses reasonably incurred by such Underwriter
and such Manager in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use in the U.S. Prospectus or by any
Manager specifically for use in the International Prospectus.
(b) Each Underwriter and each Manager, severally and not
jointly, will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the U.S. Prospectus and International Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use in the U.S.
Prospectus, or by any Manager specifically for use in the International
Prospectus, and will reimburse any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
27
33
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party (absent
material prejudice) of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under subsection (a) or (b) above. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party (which consent shall not be
unreasonably withheld), be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters and Managers on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters and
Managers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters and Managers on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters and Managers. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and Managers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission.
28
34
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter or Manager shall be required
to contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
or Manager has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters and Managers
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter or any Manager within the meaning of the Act; and the
obligations of the Underwriters and Managers under this Section 6 shall be in
addition to any liability which the respective Underwriters and Managers may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
7. Default of Underwriters or Managers. If any Underwriter or
Underwriters (or Manager or Managers) default in their obligations to purchase
Securities under the Terms Agreement and the aggregate principal amount or
number of shares, as the case may be, of the Securities that such defaulting
Underwriter or Underwriters (or Manager or Managers) agreed but failed to
purchase does not exceed 10% of the total principal amount or number of shares,
as the case may be, of the Securities, the Representatives (and the Managers)
may make arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters (or Managers),
but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters (or non-defaulting Manager or Managers) shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters (or such defaulting Manager or Managers) agreed but failed to
purchase. If any Underwriter or Underwriters (or Manager or Managers) so default
and the aggregate principal amount or number of shares, as the case may be, of
the Securities with respect to which such default or defaults occur exceeds 10%
of the total principal amount or number of shares, as the case may be, of the
Securities to be purchased by the Underwriters or Managers, as the case may be,
and arrangements satisfactory to the Representatives and the Managers, and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement or Terms Agreements will
terminate without liability on the part of any non-defaulting Underwriter and
any non-defaulting Manager, or the Company, except as provided in Section 8
herein. As used in
29
35
this Agreement, the term "Underwriter" and "Manager" includes any person
substituted for an Underwriter or a Manager, respectively, under this Section 7.
Nothing herein will relieve a defaulting Underwriter or defaulting Manager from
liability for its default. The respective commitments of the several
Underwriters and Managers, for the purposes of this Section 7, shall be
determined without regard to any reduction in the respective Underwriters'
obligations to purchase the principal amounts or numbers of shares, as the case
may be, of the Securities set forth opposite their names in the Terms Agreement
as a result of Delayed Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters and
Managers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter or Manager, the Company
or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the
Securities. If the Terms Agreement is terminated pursuant to Section 7 herein
or if for any reason the purchase of the Securities by the Underwriters or
Managers under the Terms Agreement is not consummated, the Company and the
Underwriters (and Managers) shall remain responsible for the expenses to be
paid or reimbursed by each of them pursuant to Section 4 herein, and the
respective obligations of the Company and the Underwriters and the Managers
pursuant to Section 6 herein shall remain in effect. If the purchase of the
Securities by the Underwriters and the Managers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 7 or the occurrence of any event specified in Section 5(e) herein,
the Company will reimburse the Underwriters and the Managers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters and the Managers, will be mailed, delivered or
telegraphed and confirmed to them at their addresses furnished to the Company in
writing for the purpose of communications hereunder or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇▇ Center,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the Company and such Underwriters and Managers, if any, as
are identified in the corresponding Terms Agreements and their respective
successors and the officers and directors and controlling persons referred to in
Section 6 herein, and no other person will have any right or obligation
hereunder.
30
36
11. Applicable Law. THIS AGREEMENT AND THE TERMS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
31
[The following form of Delayed Delivery Contract will be attached as an annex to
the related Underwriting Agreement and will also be printed separately for
execution purposes. (Omit "Annex I" in execution copies.)]
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on____________ __, __***.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
▇▇▇▇▇ CORPORATION
c/o [REPRESENTATIVE]
[Address]
[Address]
Attention: _________________________
Gentlemen:
The undersigned hereby agrees to purchase from ▇▇▇▇▇
Corporation, an Ohio corporation ("Company"), and the Company agrees to sell to
the undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on _________, __ ("Delivery Date"),]
[$]__________________ [shares]
--principal amount--of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated ___________, __ and
a Prospectus Supplement dated _______, __ relating thereto, receipt of copies
of which is hereby acknowledged, at [__% of the principal amount thereof plus
accrued interest, if any,] [$_______ per share plus accrued dividends, if any,]
and on the further terms and conditions set forth in this Delayed Delivery
Contract ("Contract").
-----------
*** Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
32
2
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in
the--principal--amounts set forth below:
[Principal Amount]
Delivery Date [Number of Shares]
_____________ __________________
_____________ __________________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on--the--each--Delivery Date shall be made to the Company
or its order by wire transfer, payable to the order of the Company in Federal
(same day) funds at the office of ____________________ at ___.M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to [the][such] Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on [the][each] Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at [the][such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total [principal
amount][number of shares] of the Securities less the [principal amount][number
of shares] thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
33
3
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
______________________________________
(Name of Purchaser)
By____________________________________
______________________________________
(Title of Signatory)
______________________________________
______________________________________
(Address of Purchaser)
Accepted, as of the above date.
▇▇▇▇▇ CORPORATION
By_____________________________
Title:
34
▇▇▇▇▇ CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
---------------
▇▇▇▇▇ CORPORATION
Eaton Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we--We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. ) ("Underwriting Agreement"),
the following securities ("Securities") on the following terms:
TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
PRINCIPAL AMOUNT: $
INTEREST: [___% per annum, from ______________, payable semiannually on
_____________ and ______________, commencing ______________, to holders of
record on the preceding _______________ or _______________, as the case may be.]
[Zero coupon.]
35
2
MATURITY: ___________________, 20__.
OPTIONAL REDEMPTION:
SINKING FUND:
OTHER TERMS:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
______________. Underwriters' fee is ___% of the principal amount of the
Contract Securities.]
PURCHASE PRICE: ___% of principal amount, plus accrued interest[, if
any,] from ______________________.
EXPECTED REOFFERING PRICE: ___% of principal amount, subject to change
by the undersigned.
CLOSING: _____ A.M. on _________________, at _____________, by wire
transfer, payable to the order of the Company in Federal (same day) funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
[If appropriate, insert--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities will be made available for checking and packaging at the
office of ___________________ at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
36
3
[Please signify your acceptance in writing of the foregoing not later
than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE]
[Insert name(s) of other
Representatives or
Underwriters]
[On behalf of--themselves--
itself--and as
Representative[s] of the
Several] [As]
Underwriter[s]
By [REPRESENTATIVE]
By__________________________________
[Insert Title]
37
4
SCHEDULE A
PRINCIPAL
UNDERWRITER AMOUNT
----------- ------
[UNDERWRITER]................................................ $
-----
Total............................................... $
=====
38
5
To: [REPRESENTATIVE]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to $______ million principal amount of our [Insert
title of Securities]. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement filed as an exhibit to the undersigned's
registration statement on Form S-3 (No.__________) ("Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or, to the knowledge of the undersigned, are contemplated by the Securities and
Exchange Commission and, subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the Underwriting
Agreement), there has been no material adverse change in the financial position
or results of operations of the undersigned and its Subsidiaries except as set
forth in or contemplated by the Prospectus.
Very truly yours,
▇▇▇▇▇ Corporation
By______________________________
[Insert Title]
39
▇▇▇▇▇ CORPORATION
("COMPANY")
PREFERRED--COMMON--STOCK
TERMS AGREEMENT
---------------
▇▇▇▇▇ CORPORATION
Eaton Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we--We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. ) ("Underwriting Agreement"),
the following securities ("Securities") on the following terms:
TITLE:
NUMBER OF SHARES: _______ [("Firm Securities")]
[In addition, the Company hereby grants the Underwriters [and the
Managers] an option, exercisable from time to time by the
Representatives (as defined below), to purchase upon written notice
from the Representatives given to the Company not more than 30 days
subsequent to the First Closing Date an aggregate of not more than
___________ additional shares of Securities ("Option Securities") to
cover over-allotments at the same price per share as the Firm
Securities and on the same terms, including the terms specified in
Section 5 of the Underwriting Agreement (other than the time for
delivery of and payment for the Option Securities). [Unless otherwise
agreed between the Representatives and [Lead Manager] on behalf of
itself and the other Managers, (i) Option Securities to be so purchased
by the Underwriters shall be in the same proportion as the aggregate
amount of Firm Securities to be purchased by the Underwriters bear to
40
2
the aggregate amount of Firm Securities to be purchased by the
Underwriters and Managers and (ii) Option Securities to be so purchased
by the Managers shall be in the same proportion as the aggregate amount
of Firm Securities to be purchased by the Managers bear to the
aggregate amount of Firm Securities to be purchased by the Underwriters
and Managers.] The Company agrees to sell to the Underwriters
[Managers] such Option Securities and the Underwriters [Managers]
agree, severally and not jointly, to purchase such Option Securities.
Such Option Securities shall be purchased for the account of each
Underwriter [Manager] in the same proportion as the number of shares of
Firm Securities set forth opposite such Underwriter's [Manager's] name
in Schedule A hereto bears to the total number of shares of Firm
Securities (subject to adjustment by the Representatives to eliminate
fractions) and may be purchased by the Underwriters [Managers] only for
the purpose of covering over-allotments made in connection with the
sale of the Firm Securities. No Option Securities shall be sold or
delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the
Option Securities or any portion thereof may be surrendered and
terminated at any time upon notice by the Representatives to the
Company.]
(1) DIVIDEND RATE:
(1) OPTIONAL REDEMPTION:
(1) SINKING FUND:
(1) CONVERSION RIGHTS:
(1) DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall
be ______________. Underwriters' fee is $ _______ per share of the Contract
Securities.]
PURCHASE PRICE: $________ per share [If preferred stock issue, insert--
plus accrued dividends[, if any,] from ____________].
EXPECTED REOFFERING PRICE: $_______ per share, subject to change by the
undersigned.
CLOSING: _____ A.M. on _________________, at _____________, by wire
transfer, payable to the order of the Company in Federal (same day) funds
[("First Closing Date)].
--------------
(1) To be included only if Terms Agreement relates to preferred stock.
41
3
[The time for the delivery of and payment for the Option
Securities, being herein referred to as the "Second Closing Date", which may be
the First Closing Date, shall be determined by the Representatives but shall be
not earlier than three nor later than seven business days after written notice
of election to purchase the Option Securities is given. The Company will
deliver the Option Securities to the Representatives [Lead Manager] for the
accounts of the several Underwriters [Managers] against payment of the purchase
price therefor by wire transfer, payable to the order of the Company in Federal
(same day) funds, at the offices of Shearman & Sterling. Payment shall be made
in U.S. dollars. The certificates for the Option Securities will be in
definitive form, in such denominations and registered in such names as the
Representatives [Lead Manager] requests upon reasonable notice prior to the
Second Closing Date and will be made available for checking and packaging at
the above office of [Lead Manager], or, at the option of [Lead Manager], at the
office of The Depository Trust Company, at a reasonable time in advance of the
Second Closing Date.]
2 UNDERWRITER[S']['S] COMPENSATION: $______________, payable to the
[Representative[s] [Lead Manager] for the proportionate accounts of the]
Underwriter[s] [Manager[s]] on the Closing Date.
OTHER TERMS:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]]:
The respective numbers of shares of the Firm Securities to be purchased
by each of the Underwriters [Managers] are set forth opposite their names in
Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your
consent, amend this offer to add additional Underwriters [Managers] and reduce
the number of shares to be purchased by the Underwriters [Managers] listed in
Schedule A hereto by the number of shares to be purchased by such additional
Underwriters [Managers].]
--------------
(2) Include if purchase is at public offering price and compensation
payable separately.
42
4
The Securities will be made available for checking and packaging at the
office of ___________________, or at the option of ______________________, at
the office of The Depository Trust Company, at least 24 hours prior to the
Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
[Please signify your acceptance in writing of the foregoing not later
than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE]
[Insert name(s) of other
Representatives or
Underwriters]
[On behalf of--themselves--
itself--and as
Representative[s] of the
Several] [As]
Underwriter[s]
[By REPRESENTATIVE]
By___________________________________
[Insert Title]
[LEAD MANAGER]
[Insert name(s) of other Managers]
By___________________________
By___________________________________
[Attorney-in-Fact]
43
SCHEDULE A
NUMBER OF
UNDERWRITER[MANAGER] SHARES
-------------------- ------
[Underwriter]...................................................
------
Total.................................................. ======
44
To: [REPRESENTATIVES]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
[LEAD MANAGER]
[Insert name(s) of other Managers
c/o [LEAD MANAGER]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to ______ shares1 of our [Insert title of Securities].
We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. ) ("Underwriting Agreement") are true and correct, no
stop order suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has been issued
and no proceedings for that purpose have been instituted or, to the knowledge of
the undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial position or results of operations of
the undersigned and its Subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus.
Very truly yours,
▇▇▇▇▇ Corporation
By_____________________________
[Insert Title]
------------------
(1) and up to an additional ______ Option Securities pursuant to the option
described therein.
45
▇▇▇▇▇ CORPORATION
("COMPANY")
WARRANT SECURITIES
TERMS AGREEMENT
---------------
▇▇▇▇▇ CORPORATION
Eaton Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and
for their respective accounts, we--We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. ) ("Underwriting Agreement"),
the following securities ("Securities") on the following terms:
NUMBER TO BE ISSUED:
DEBT WARRANT AGENT:
ISSUABLE JOINTLY WITH DEBT SECURITIES:
DATE FROM WHICH WARRANT SECURITY IS EXERCISABLE:
DATE ON WHICH WARRANT SECURITY EXPIRES:
EXERCISE PRICE(S):
INITIAL PUBLIC OFFERING PRICE:
PURCHASE PRICE:
46
2
TITLE OF WARRANT SECURITIES:
OTHER TERMS:
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
______________. Underwriters' fee is ___% of the principal amount of the
Contract Securities.]
PURCHASE PRICE: ___% of principal amount, plus accrued interest[, if
any,] from ___________________.
EXPECTED REOFFERING PRICE: ___% of principal amount, subject to change
by the undersigned.
CLOSING: _____ A.M. on _________________, at _____________, by wire
transfer, payable to the order of the Company in Federal (same day) funds.
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]
The respective number of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the number
to be purchased by the Underwriters listed in Schedule A hereto by the number to
be purchased by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Securities will be made available for checking and packaging at the
office of ___________________ at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
47
3
[Please signify your acceptance in writing of the foregoing not later
than _____ P.M. today.]
Very truly yours,
[REPRESENTATIVE]
[Insert name(s) of other
Representatives or
Underwriters]
[On behalf of--themselves--
itself--and as
Representative[s] of the
Several] [As]
Underwriter[s]
By [REPRESENTATIVE]
By__________________________________
[Insert Title]
48
4
SCHEDULE A
UNDERWRITER Number
----------- ------
[Underwriters]...................................................
------
Total................................................... ======
49
To: [REPRESENTATIVE]
[Insert name(s) of other Representatives or Underwriters]
As [Representative[s] of the Several] Underwriter[s],
c/o [REPRESENTATIVE]
[Address]
[Address]
We accept the offer contained in your [letter] [wire], dated
______________, relating to ______ number of our [Insert title of Securities].
We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. ) ("Underwriting Agreement") are true and correct, no
stop order suspending the effectiveness of the Registration Statement (as
defined in the Underwriting Agreement) or of any part thereof has been issued
and no proceedings for that purpose have been instituted or, to the knowledge of
the undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial position or results of operations of
the undersigned and its Subsidiaries except as set forth in or contemplated by
the Prospectus.
Very truly yours,
▇▇▇▇▇ Corporation
By__________________________
[Insert Title]
50
ANNEX II-A
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(i)
(A) The Company and the Significant
Subsidiaries have been duly incorporated and are
validly existing and in good standing under the laws
of their respective jurisdictions of incorporation,
are duly qualified to do business and in good
standing as foreign corporations in all jurisdictions
in which their respective ownership of property or
the conduct of their respective businesses requires
such qualification (except where the failure to so
qualify would not have a material adverse effect upon
the business, properties, financial condition,
results of operations or prospects of the Company and
its Subsidiaries taken as a whole), and have all
power and authority necessary to own their respective
properties and conduct the businesses in which they
are engaged and, except as may be disclosed in the
Registration Statement and except to the extent of
shares owned of record by directors for the purpose
of qualifying as such, all outstanding shares of
capital stock of the Significant Subsidiaries are
owned by the Company directly, or indirectly through
wholly owned Subsidiaries, free and clear of any
lien, pledge and encumbrance or any claim of any
third party, and except that as of June 30, 1999,
338,117 shares of Aeroquip-▇▇▇▇▇▇▇, Inc. capital
stock had not been tendered to the Company in
connection with the acquisition by the Company of
Aeroquip-▇▇▇▇▇▇▇, Inc.;
(B) The Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by
the Company and, assuming due authorization,
execution and delivery by the purchasers thereunder,
are valid and legally binding obligations of the
Company;
(C) The Registration Statement is effective
under the Act, no stop order suspending its
effectiveness has been issued, and no proceeding for
that purpose is pending or, to the knowledge of such
counsel, threatened by the Commission;
(D) No order directed to any document
incorporated by reference in the Prospectuses has
been issued and, to the knowledge of such counsel, no
challenge has been made to the accuracy or adequacy
of any such document;
(E) The documents incorporated by reference
in the Registration Statement and the Prospectuses
(except for the financial statements, supporting
schedules and other financial data included or
incorporated therein, or omitted therefrom, as to
which such counsel need express no opinion), when
they were filed with the Commission, complied as to
form in all material respects with the requirements
of the Securities Exchange Act and the rules and
regulations thereunder;
(F) The Registration Statement and the
Prospectuses (except that no opinion need be
expressed as to the financial statements, supporting
schedules and other financial data contained or
incorporated therein, or omitted therefrom) comply as
to form in all material respects with the
requirements of the Act and the Rules and
Regulations;
(G) The statements made in the Prospectuses
under the following (or comparable) captions:
"Description of Debt Securities," "Description of
Common Shares," "Description of Debt Warrants," and
51
"Description of Preferred Shares", insofar as they
purport to summarize the provisions of documents or
agreements specifically referred to therein, fairly
present the information called for with respect
thereto by Form S-3 under the Act;
(H) Such counsel does not know of any
litigation or any governmental proceeding pending or
threatened against the Company or any of its
Subsidiaries which is required to be disclosed in the
Prospectuses which is not disclosed and correctly
summarized therein;
(I) Such counsel does not know of any
contracts or other documents which are required to be
filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations, or which are
required to be filed as exhibits to any document
incorporated by reference in the Prospectuses by the
Securities Exchange Act or the rules and regulations
thereunder, which have not been filed as exhibits to
the Registration Statement or to such document or
incorporated therein by reference as permitted by the
Rules and Regulations or the rules and regulations of
the Commission under the Securities Exchange Act;
(J) To the best of such counsel's knowledge,
neither the Company nor any Significant Subsidiary is
in violation of its articles or certificate of
incorporation or in default under any material
agreement, indenture or instrument; and
(K) The Company is not, and after giving
effect to the offering and sale of the Securities,
will not be an "investment company", as such term is
defined in the Investment Company Act of 1940.
52
ANNEX II-B
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(ii)
(A) The Senior Indenture has been validly
authorized by the Company, duly executed and
delivered by the Company and the Senior Trustee and
duly qualified under the Trust Indenture Act and is a
valid and legally binding instrument of the Company,
except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law);
(B) The Senior Debt Securities not subject
to Delayed Delivery Contracts have been validly
authorized, duly executed by authorized officers of
the Company, duly authenticated by the Senior Trustee
or the authenticating agent and delivered, and are
the validly issued, outstanding and legally binding
obligations of the Company, entitled to the benefits
of the Senior Indenture, except as enforcement
thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law);
(C) The Senior Debt Securities subject to a
Delayed Delivery Contract, if any, have been validly
authorized and, when duly executed, authenticated,
issued and delivered to, and paid for by, the
respective purchasers thereof under the related
Delayed Delivery Contracts, such Senior Debt
Securities will be validly issued, outstanding and
legally binding obligations of the Company, entitled
to the benefits of the Senior Indenture, except as
enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement
53
thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(D) The Senior Debt Securities and the
Senior Indenture conform in all material respects to
the statements concerning them in the Registration
Statement and the Prospectuses; and
(E) This Agreement has been duly authorized,
executed and delivered by the Company; the execution,
delivery and performance of this Agreement and the
Delayed Delivery Contracts, if any, and compliance by
the Company with the provisions contained herein and
in the Senior Debt Securities and the Senior
Indenture will not, in any way that would have a
material adverse effect upon the Company and its
Subsidiaries taken as a whole, conflict with, or
result in the creation or imposition of, any lien,
charge or encumbrance upon any of the assets of the
Company or any of its Subsidiaries pursuant to the
terms of, or constitute a default under, any
agreement, indenture or instrument known to such
counsel, or result in a violation of the articles or
certificate of incorporation of the Company or any
Significant Subsidiary or any law, order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, and any of its
Subsidiaries or their property; and no consent,
authorization or order of, or filing or registration
with, any court or governmental agency is required
for the execution, delivery and performance by the
Company of this Agreement and the Delayed Delivery
Contracts, if any, except such as may be required by
the Act, the Trust Indenture Act, the Securities
Exchange Act, state securities laws or foreign laws.
54
ANNEX II-C
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(iii)
(A) The Subordinated Indenture has been
validly authorized by the Company, duly executed and
delivered by the Company and the Subordinated Trustee
and duly qualified under the Trust Indenture Act and
is a valid and legally binding instrument of the
Company, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law);
(B) The Subordinated Debt Securities not
subject to Delayed Delivery Contracts have been
validly authorized, duly executed by authorized
officers of the Company, duly authenticated by the
Subordinated Trustee or the authenticating agent and
delivered, and are the validly issued, outstanding
and legally binding obligations of the Company,
entitled to the benefits of the Subordinated
Indenture, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law);
(C) The Subordinated Debt Securities subject
to a Delayed Delivery Contract, if any, have been
validly authorized and, when duly executed,
authenticated, issued and delivered to, and paid for
by, the respective purchasers thereof under the
related Delayed Delivery Contracts, such Subordinated
Debt Securities subject to a Delayed Delivery
Contract will be validly issued, outstanding and
legally binding obligations of the Company, entitled
to the benefits of the Subordinated Indenture, except
as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement
thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(D) The Subordinated Debt Securities, the
Subordinated Indenture and, in the case of
Subordinated Debt Securities that are convertible
into Registered Common Shares ("Convertible
Subordinated Debt Securities"), the Registered Common
Shares conform in all material respects to the
statements concerning them in the Registration
Statement and the Prospectuses;
(E) In the case of Convertible Subordinated
Debt Securities, the Registered Common Shares
issuable upon the conversion of the Convertible
Subordinated Debt Securities have been duly
authorized and validly reserved for issuance by the
Company and, when issued and delivered in accordance
with the terms of the Convertible Subordinated
Indenture, will be validly issued, fully paid and
nonassessable;
(F) In the case of Convertible Subordinated
Debt Securities, all corporate action required to be
taken for the authorization, issuance and delivery of
the Registered Common Shares issuable upon conversion
of
55
the Convertible Subordinated Debt Securities has been
validly taken, and the issuance of the Convertible
Subordinated Debt Securities is not, and the issuance
of any such Registered Common Shares will not be,
subject to the preemptive rights of any stockholder
of the Company; and
(G) This Agreement has been duly authorized,
executed and delivered by the Company; the execution,
delivery and performance of this Agreement and the
Delayed Delivery Contracts, if any, and compliance by
the Company with the provisions contained herein and
in the Subordinated Debt Securities and the
Subordinated Indenture will not, in any way that
would have a material adverse effect upon the Company
and its Subsidiaries taken as a whole, conflict with,
or result in the creation or imposition of, any lien,
charge or encumbrance upon any of the assets of the
Company or any of its Subsidiaries pursuant to the
terms of, or constitute a default under, any
agreement, indenture or instrument known to such
counsel, or result in a violation of the articles or
certificate of incorporation of the Company or any
Significant Subsidiary or any law, order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, any of its
Subsidiaries or their property; and no consent,
authorization or order of, or filing or registration
with, any court or governmental agency is required
for the execution, delivery and performance by the
Company of this Agreement and the Delayed Delivery
Contracts, if any, except such as may be required by
the Act, the Trust Indenture Act, the Securities
Exchange Act, state securities laws or foreign laws.
56
ANNEX II-D
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(iv)
(A) The Warrant Agreement has been validly
authorized by the Company, and duly executed and
delivered by the Company and the Warrant Agent and
is a valid and legally binding instrument of the
Company, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law);
(B) The Registered Warrant Securities not
subject to a Delayed Delivery Contract have been
validly authorized, duly executed by authorized
officers of the Company, duly authenticated by the
Warrant Agent and delivered, and are the validly
issued, outstanding and legally binding obligations
of the Company, entitled to the benefits of the
Warrant Agreement, except as enforcement thereof may
be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law);
(C) The Registered Warrant Securities
subject to a Delayed Delivery Contract, if any, have
been validly authorized and, when duly executed,
authenticated, issued and delivered to, and paid for
by, the respective purchasers thereof under the
related Delayed Delivery Contracts, such Registered
Warrant Securities will be validly issued,
outstanding and legally binding obligations of the
Company, entitled to the benefits of the Warrant
Agreement, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law);
(D) The Senior Indenture has been validly
authorized by the Company, duly executed and
delivered by the Company and the Senior Trustee and
duly qualified under the Trust Indenture Act and is a
valid and legally binding instrument of the Company,
except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding
in equity or at law);
(E) The Senior Debt Securities issuable upon
exercise of the Registered Warrant Securities have
been validly authorized and, when executed,
authenticated, issued and delivered in accordance
with the terms of the Registered Warrant Securities
and the Senior Indenture, will be the validly issued,
outstanding and legally binding obligations of the
Company, entitled to the benefits of the Senior
Indenture, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is
subject to general principles
57
of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(F) The Registered Warrant Securities, the
Warrant Agreement, the Senior Debt Securities
issuable upon the exercise of the Registered Warrant
Securities and the Senior Indenture conform in all
material respects to the statements concerning them
in the Registration Statement and the Prospectuses;
and
(G) This Agreement has been duly authorized,
executed and delivered by the Company; the execution,
delivery and performance of this Agreement and the
Delayed Delivery Contracts, if any, and compliance by
the Company with the provisions contained herein and
in the Registered Warrant Securities, in the Warrant
Agreement, in the Senior Debt Securities and in the
Senior Indenture, if applicable, will not, in any way
that would have a material adverse effect upon the
Company and its subsidiaries taken as a whole,
conflict with, or result in the creation or
imposition of, any lien, charge or encumbrance upon
any of the assets of the Company or any of its
Subsidiaries pursuant to the terms of, or constitute
a default under, any agreement, indenture or
instrument known to such counsel, or result in a
violation of the articles or certificate of
incorporation of the Company or any Significant
Subsidiary or any law, order, rule or regulation of
any court or governmental agency having jurisdiction
over the Company, any of its Subsidiaries or their
property; and no consent, authorization or order of,
or filing or registration with, any court or
governmental agency is required for the execution,
delivery and performance by the Company of this
Agreement and the Delayed Delivery Contracts, if any,
except such as may be required by the Act, the Trust
Indenture Act, the Securities Exchange Act, state
securities laws or foreign laws.
58
ANNEX II-E
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(v)
(A) The Registered Preferred Shares not
subject to a Delayed Delivery Contract have been duly and
validly authorized and issued and are fully paid and
nonassessable;
(B) The Registered Preferred Shares subject
to a Delayed Delivery Contract, if any, have been validly
authorized and, when duly executed, issued and delivered
to, and paid for by, the respective purchasers thereof
under the related Delayed Delivery Contracts, such
Registered
59
29
Preferred Shares will be duly and validly issued and fully
paid and nonassessable;
(C) If the Registered Preferred Shares are
convertible into Registered Common Shares, the Registered
Common Shares issuable upon conversion of the Registered
Preferred Shares have been duly authorized and validly
reserved for issuance by the Company and, when issued and
delivered in accordance with the terms of the Registered
Preferred Shares and the Certificate of Designations, will
be validly issued, fully paid and nonassessable;
(D) The Registered Preferred Shares and the
Registered Common Shares conform in all material respects
to the statements concerning them in the Registration
Statement and the Prospectuses;
(E) This Agreement has been duly
authorized, executed and delivered by the Company; the
execution, delivery and performance of this Agreement and
the Delayed Delivery Contracts, if any, and compliance by
the Company with the provisions contained herein and in
the Registered Preferred Shares and the Certificate of
Designations will not, in any way that would have a
material adverse effect upon the Company and its
Subsidiaries taken as a whole, conflict with, or result in
the creation or imposition of, any lien, charge or
encumbrance upon any of the assets of the Company or any
of its Subsidiaries pursuant to the terms of, or
constitute a default under, any agreement, indenture or
instrument known to such counsel, or result in a violation
of the articles or certificate of incorporation of the
Company or any Significant Subsidiary or any law, order,
rule or regulation of any court or governmental agency
having jurisdiction over the Company, any of its
Subsidiaries or their property; and no consent,
authorization or order of, or filing or registration with,
any court or governmental agency is required for the
execution, delivery and performance by the Company of this
Agreement and the Delayed Delivery Contracts, if any,
except such as may be required by the Act, the Securities
Exchange Act, state securities laws or foreign laws; and
(F) All corporate action required to be
taken for the authorization, issuance and delivery of any
Registered Common Shares issuable upon conversion of the
Registered Preferred Shares has been validly taken, and
the issuance of the Registered Preferred Shares is not,
and the issuance of any such Registered Common Shares will
not be, subject to any preemptive rights of any
stockholder of the Company.
60
ANNEX II-F
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(f)(vi)
(A) The Registered Common Shares have been
duly and validly authorized and issued and are fully paid
and nonassessable;
(B) The Registered Common Shares conform in
all material respects to the statements concerning them in
the Registration Statement and the Prospectuses;
(C) This Agreement has been duly
authorized, executed and delivered by the Company; the
execution, delivery and performance of this Agreement and
compliance by the Company with the provisions contained
herein will not, in any way that would have a material
adverse effect upon the Company and its Subsidiaries taken
as a whole, conflict with, or result in the creation or
imposition of, any lien, charge or encumbrance upon any of
the assets of the Company or any of its Subsidiaries
pursuant to the terms of, or constitute a default under,
any agreement, indenture or instrument known to such
counsel, or result in a violation of the articles or
certificate of incorporation of the Company or any
Significant Subsidiary or any law, order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, any of its Subsidiaries or
their property; and no consent, authorization or order of,
or filing or registration with, any court or governmental
agency is required for the execution, delivery and
performance by the Company of this Agreement, except such
as may be required by the Act, the Securities Exchange
Act, state securities laws or foreign laws; and
(D) The issuance of any such Registered
Common Shares will not be subject to any preemptive rights
of any stockholder of the Company.
