EXHIBIT 1(a)
GENERAL ELECTRIC COMPANY
DEBT SECURITIES AND/OR WARRANTS TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
__, 2001
Ladies and Gentlemen:
General Electric Company, a New York corporation (the "Company"), may from
time to time enter into one or more underwriting agreements in the form attached
as Exhibit A hereto (each an "Underwriting Agreement") that provide for the sale
of certain of its securities specified in the particular Underwriting Agreement
(the "Designated Securities"). The basic provisions set forth herein to the
extent applicable to securities of the type represented by the Designated
Securities will be incorporated by reference in any such Underwriting Agreement
relating to a particular issue of Designated Securities. Each Underwriting
Agreement will be entered into, with such additions and deletions as the parties
thereto may determine and shall be specified in such Underwriting Agreement. The
Underwriting Agreement may appoint a lead underwriter or underwriters
(collectively, the "Representative") for the particular issue of Designated
Securities and will specify the underwriters participating in such offering (the
"Underwriters", which term shall include any Underwriter substituted pursuant to
Section 9 hereof). The obligation of the Company to issue and sell any of the
Designated Securities and the obligation of the Underwriters to purchase any of
the Designated Securities shall be evidenced by the Underwriting Agreement with
respect to the Designated Securities specified therein. The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement." The obligations of the Underwriters under this
Agreement shall be several and not joint. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as defined therein.
The terms and rights of any particular issue of Designated Securities shall
be as specified in the Underwriting Agreement relating thereto and (i) if the
Designated Securities are either senior or subordinated debt securities ("Debt
Securities"), in or pursuant to the senior or subordinated indenture as
applicable (the "Indenture") identified in the Underwriting Agreement, (ii) if
the Designated Securities are warrants ("Warrants"), in or pursuant to a warrant
agreement (the "Warrant Agreement") identified in the Underwriting Agreement and
(iii) if the Designated Securities are debt securities subject to the warrants
("Warrant Debt Securities"), pursuant to the
Indenture identified in the Underwriting Agreement. An Underwriting Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted.
A registration statement in respect of the Designated Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
registration statement has been declared effective by the Commission and each
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"); and no stop order suspending the effectiveness of the
registration statement has been issued and no proceeding for the purpose has
been initiated or threatened by the Commission. The Company proposes to file
pursuant to Rule 424 under the Securities Act of 1933 (the "1933 Act") a
prospectus supplement specifically relating to the Designated Securities and has
previously advised the Underwriters of all information to be set forth therein.
The term "Registration Statement" means the registration statement as amended to
the date of this Agreement, including the information, if any, deemed to be a
part thereof pursuant to Rule 434(d) under the rules and regulations of the 1933
Act (the "1933 Act Regulations") and any related Registration Statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations. The term "Basic Prospectus"
means the prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the Designated Securities, as first filed with the
Commission pursuant to Rule 424 (the "Prospectus Supplement"); provided,
however, that if the Company elects to rely upon Rule 434 of the 1933 Act
Regulations, then all references to the Prospectus shall be deemed to refer to
the Basic Prospectus and the term sheet relating to the Designated Securities in
the form furnished to the Underwriters by the Company in reliance upon Rule 434.
The term "Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Designated Securities together with the Basic
Prospectus.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
Preliminary Prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or Preliminary Prospectus,
as the case may be, prior to the execution of the applicable Underwriting
Agreement; and all references in this Agreement to amendments or supplements to
the Registration Statement, Prospectus or Preliminary Prospectus shall be deemed
to include the filing of any document under the Securities Exchange Act of 1934,
as amended (the "1934 Act") which is incorporated by reference in the
Registration Statement, Prospectus or Preliminary Prospectus, as the case may
be, after the execution of the applicable Underwriting Agreement.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each Underwriter named in the applicable Underwriting Agreement,
as of the date thereof and as of the Closing Time (as defined below) as follows:
(1) each document filed by the Company pursuant to the 1934 Act which
is incorporated by reference in the Prospectus complied when so filed in
all material
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respects with the Exchange Act and the rules and regulations thereunder,
and each document, if any, hereafter filed by the Company and so
incorporated by reference in the Prospectus will comply when so filed with
the 1934 Act and the rules and regulations thereunder;
(2) the Registration Statement and the Prospectus comply, and the
Registration Statement and the Prospectus (and any amendments and
supplements thereto, other than supplements relating only to securities,
other than the Designated Securities) will as of the Closing Time comply,
in all material respects with the 1933 Act and the 1933 Act Regulations.
(3) each Preliminary Prospectus, if any, relating to the Designated
Securities filed pursuant to Rule 424 under the 1933 Act complied when so
filed in all material respects with the 1933 Act and the 1933 Act
Regulations; and
(4) each part of the Registration Statement at the time such part
became effective did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus as of the
date of the prospectus supplement relating to the Designated Securities did
not, and the Prospectus (as amended or supplemented, other than as to
supplements relating only to securities other than the Designated
Securities) as of the Closing Time will not, contain any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
except that these representations and warranties do not apply to (i) statements
or omissions in the Registration Statement, any Preliminary Prospectus or the
Prospectus, or any amendments or supplements to the foregoing, based upon
information furnished to the Company in writing by any Underwriter expressly for
use therein and (ii) any Form T-1 Statement of Eligibility and Qualification
included as an exhibit to the Registration Statement.
SECTION 2. SALE AND DELIVERY; CLOSING.
(a) DELAYED DELIVERY CONTRACTS. Pursuant to the applicable Underwriting
Agreement, the Company will agree to sell to the several Underwriters named in
Schedule I thereto and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, will agree to purchase from the Company severally and not jointly, (i)
the principal amounts of Debt Securities set forth opposite their names in
Schedule I thereto, less their respective amounts of the Contract Debt
Securities (as hereinafter defined), if any, determined as provided below,
and/or (ii) Warrants to purchase the principal amounts of Warrant Debt
Securities set forth opposite their names in Schedule I thereto, less their
respective amounts of the Contract Warrants (as hereinafter defined), if any,
determined as provided below, all at the respective purchase prices set forth in
such Underwriting Agreement, plus accrued interest, if any, from the date set
forth therein to the date of payment and delivery. Debt Securities and, if
applicable, Warrants to be purchased pursuant to delayed delivery contracts are
hereinafter referred to as "Contract Debt Securities" and "Contract Warrants",
respectively, and collectively as the "Contract Securities".
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If so indicated in the applicable Underwriting Agreement, the Company may
authorize the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth therein pursuant to delayed
delivery contracts substantially in the form of Exhibit D attached hereto but
with such changes therein as the Company may authorize or approve (hereinafter
referred to as "Delayed Delivery Contracts"). Delayed Delivery Contracts are to
be with institutional investors approved by the Company and described in the
Prospectus. The aggregate principal amount of Contract Debt Securities and the
aggregate principal amount of Warrant Debt Securities for which Contract
Warrants are exercisable shall not exceed the respective amounts set forth in
Schedule I to the applicable Underwriting Agreement. As of the Closing Time, the
Company will pay to the Representative as compensation, for the accounts of the
Underwriters, the fee specified in the applicable Underwriting Agreement in
respect of all Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
If the Designated Securities are Debt Securities, the deduction for the
Contract Debt Securities referred to above shall become effective upon execution
and delivery by the Company and the several institutional investors of the
Delayed Delivery Contracts and such deduction for each Underwriter shall be in
the amount which shall bear the same proportion to the total principal amount of
Contract Debt Securities as the principal amount of Debt Securities set forth
opposite the name of the respective Underwriter bears to the aggregate principal
amount of Debt Securities set forth in Schedule I to the applicable Underwriting
Agreement, except to the extent that the Representative determines that such
deduction shall be otherwise than in such proportions, and so advises the
Company in writing.
If the Designated Securities are Warrants and Debt Warrant Securities, the
deduction for the Contract Warrants referred to above shall become effective
upon execution and delivery by the Company and the several institutional
investors of the Delayed Delivery Contracts and such deduction for each
Underwriter shall be in the amount which shall bear the same proportion to the
total principal amount of Debt Warrant Securities for which Contract Warrants
are exercisable as the principal amount of Debt Warrant Securities for which
Warrants are exercisable as set forth opposite the name of the respective
Underwriter bears to the aggregate principal amount of Debt Warrant Securities
for which Warrants are exercisable as set forth in Schedule I to the applicable
Underwriting Agreement, except to the extent that the Representative determines
that such deduction shall be otherwise than in such proportions, and so advises
the Company in writing.
(b) SALES TO UNDERWRITERS. The several commitments of the Underwriters to
purchase the Designated Securities pursuant to the applicable Underwriting
Agreement shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(c) PAYMENT. Designated Securities to be purchased by each Underwriter
pursuant to the Underwriting Agreement relating thereto, in such authorized
denominations and registered in such names as the Representative may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representative for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor in the funds and in the manner specified in such
Underwriting
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Agreement, all at the place and time and date specified in such Underwriting
Agreement or at such other place and time and date as the Representative and the
Company may agree upon in writing, such time and date being herein called the
"Closing Time" for such Designated Securities.
Concurrently with the delivery of and payment for the Designated
Securities, the Company will deliver to the Representative for the accounts of
the Underwriters a check payable or wire transfer to the order of the party
designated in the Underwriting Agreement relating to such securities in the
amount of any compensation payable by the Company to the Underwriters in respect
of any Delayed Deliver Contracts as provided in paragraph (a) of this Section 2
and in the Underwriting Agreement related to such securities.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter of the Designated Securities as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company will comply in respect of the Designated Securities with the
requirements of the 1933 Act Regulations, as applicable, and will promptly
effect the filings necessary pursuant to Rule 424 and will take such steps as it
deems necessary to ascertain promptly whether the Prospectus transmitted for
filing under Rule 424 was received for filing by the Commission and, in the
event that it was not, it will promptly file the Prospectus.
(b) DELIVERY OF REGISTRATION STATEMENTS AND PROSPECTUSES. The Company will
furnish to the Representative and counsel for the Underwriters, without charge,
copies of the Registration Statement (including exhibits thereto) and each
amendment thereto which shall become effective on or prior to the Closing Time
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Prospectus and the
Prospectus relating to the Designated Securities and any amendments thereof and
supplements thereto as the Representative may reasonably request.
(c) CONTINUED COMPLIANCE WITH SECURITIES LAWS. If at any time when the
Prospectus relating to the Designated Securities is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Designated
Securities, any event shall occur as a result of which it is necessary, in the
opinion of counsel for the Company, to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Prospectus comply with such requirements, and the Company will furnish to
the Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(d) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Designated Securities for
offering and sale under the securities laws of such jurisdictions as the
Representative may reasonably request; PROVIDED, HOWEVER, that
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the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction.
(e) EARNINGS STATEMENT. The Company will make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after the date of each Underwriting Agreement, an earnings statement of
the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the 1933 Act and the 1933 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Underwriting Agreement or the applicable Underwriting
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the fees and disbursements
of the Company's counsel, accountants and other advisors or agents (including
transfer agents and registrars), as well as the fees and disbursements of the
Trustees and any warrant agent, and their respective counsel, (iii) the
qualification of the Designated Securities under state securities laws in
accordance with the provisions of Section 3(d) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (iv) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
term sheet, and the Prospectus and any amendments or supplements thereto, (v)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Designated Securities and (vi) the fees and expenses incurred
with respect to the listing of the Designated Securities.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Designated Securities pursuant to the
applicable Underwriting Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and there shall have been
no material adverse change (not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus; and the Representative shall have received at
the Closing Time a certificate of the Company, dated the date of Closing
Time and signed by an officer of the Company, to the foregoing effect. The
officer making such certificate may rely upon the best of his knowledge as
to proceedings pending or threatened.
(b) At Closing Time, the Representative shall have received the
opinion, dated such date, of Xxxxxx X. Healing, corporate counsel, relating
to the Designated Securities, to the effect set forth in Exhibit B hereto.
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(c) At Closing Time, the Representative shall have received the
opinion, dated such date, of Xxxxx Xxxxxxxxxx LLP, counsel for the Company,
relating to the Designated Securities, to the effect set forth in Exhibit C
hereto.
(d) At Closing Time, the Representative shall have received the
opinion, dated such date, of counsel for the Underwriters, relating to the
Designated Securities and such other matters as the Representative may
reasonably request.
(e) At Closing Time, the Representative shall have received from KPMG
LLP a letter dated such date containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and Prospectus.
SECTION 6. (a) INDEMNIFICATION. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus or the Prospectus (if used within the
period set forth in paragraph (c) of Section 3 hereof and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by any Underwriter expressly for the use therein; PROVIDED, HOWEVER,
that the foregoing indemnity with respect to any Preliminary Prospectus or any
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any losses, claims, damages or liabilities otherwise covered by
this paragraph purchased Designated Securities, or to the benefit of any person
controlling such Underwriter, if a copy of the Prospectus (as then amended and
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person if required by law so to have been delivered, at or prior to the written
confirmation of the sale of Designated Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers and any person controlling the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to information furnished in writing by such Underwriter expressly for
use in the Registration Statement, the Prospectus or any Preliminary Prospectus,
or any amendments or supplements thereto.
Promptly after receipt by any person of notice of any claim or the
institution of any proceeding (including any governmental investigation) in
respect of which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "indemnified party") shall notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall be entitled to participate therein, and, to the
extent
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that it elects (upon notice to the indemnified party), jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. If the indemnifying
party shall not have so elected to assume such defense, then, upon request of
the indemnified party, the indemnifying party shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. If the
indemnifying party shall so elect to assume such defense, the indemnifying party
shall not be liable to the indemnified party pursuant to this Section 6 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Anything hereinabove to the contrary notwithstanding, any
reference in this Section 6 to counsel reasonably satisfactory to , or
designated by, the indemnified party shall mean (i) in the case of parties
indemnified pursuant to the second preceding paragraph, counsel reasonably
satisfactory, or designated by, the Representative on behalf of all parties so
indemnified pursuant to such paragraph and (ii) in the case of parties
indemnified pursuant to the first preceding paragraph, counsel reasonable
satisfactory, or designated by, the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgement for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
(b) CONTRIBUTION. If the indemnification provided for in paragraph (a) of
Section 6 is unavailable as a matter of law to an indemnified party in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) if the indemnifying party is
the Company, in such proportion as is appropriate to reflect the relative
benefit received by the Company on the one hand and the Underwriters on the
other from the offering of the Designated Securities, (ii) if an Underwriter is
the indemnifying party, in such proportion as is appropriate to reflect the
Underwriter's relative fault on the one hand and that of the Company on the
other hand in connection with the statements or omissions or alleged statements
or omissions which resulted in such losses, claims, damages or liabilities, or
(iii) if the allocation provided by claims (i) or clause (ii) above, as the case
may be, is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefit referred to in clause (i) above or the
relative fault referred to in clause (ii) above, as the case may be, but also
such relative fault (in cases covered by clause (i)) or such relative benefit
(in cases covered by clause (ii)) as well as any other relevant equitable
considerations. The relative benefit received by the Company on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total
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net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the Prospectus. The relative fault of
the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement 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 by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omissions.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this paragraph were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations provided for, in the respective cases, in clauses (i),
(ii), and (iii) of the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Designated
Securities underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provision of this
paragraph (b) concerning contribution, no indemnifying party shall be required
to make contribution in any circumstances in which such party would not have
been required to provide indemnification by the terms of paragraph (a). Nothing
herein contained shall be deemed to constitute a waiver by an indemnified party
of such party's rights, if any, to receive contribution pursuant to Section
11(f) of the 1933 Act or other applicable law. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
section are several, in proportion to the respective amounts of Designated
Securities underwritten by each of such Underwriters, and not joint.
In the event that the indemnifying party is one or more of the
Underwriters, then the Representative shall act on behalf of the indemnifying
party with respect to receipt of notice, agreement as to retention of separate
counsel and consent to settlement, and the indemnified party may rely upon the
action of the Representative as binding upon each such indemnifying party for
purposes of this section.
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SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Designated Securities. The provisions of Section 6 shall survive the
termination or cancellation of this Agreement.
SECTION 8. TERMINATION.
This Agreement shall be subject to termination in the discretion of a
majority in interest of the Underwriters of a particular issue of Designated
Securities at any time subsequent to the date of the applicable Underwriting
Agreement and prior to the Closing Date by notice given to the Company, if (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited; (ii) a general moratorium on commercial banking
activities in the State of New York or the United States shall have been
declared by the appropriate authorities or (iii) there shall have occurred any
material outbreak, or material escalation, of hostilities or other national or
international calamity or crisis, of such magnitude and severity in it effect on
the financial markets of the United States, in the reasonable judgment of a
majority in interest of the Underwriters, as to prevent or materially impair the
marketing, or enforcement of contracts for sale, of the Designated Securities.
SECTION 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Designated
Securities which it or they are obligated to purchase under the applicable
Underwriting Agreement (the "Defaulted Securities"), then the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Designated Securities to be
purchased on such date pursuant to such Underwriting Agreement, the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Underwriting Agreement bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Designated Securities to be purchased on
such date pursuant to such Underwriting Agreement, such Underwriting
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
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In the event of any such default which does not result in a termination of
the applicable Underwriting Agreement either the Representative or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or the Prospectus or in any other documents or arrangements.
SECTION 10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or faxed and confirmed to them, at the address of the Representative
described in the applicable Underwriting Agreement; or, if sent to the Company,
will be mailed, delivered or faxed and confirmed to it, at 0000 Xxxxxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000; attention Xxxxxx X. Healing, Esq.
SECTION 11. PARTIES. This Agreement shall each inure to the benefit of and
be binding upon the Company, the Representative and any other Underwriters and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 6 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof and thereof are intended
to be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 13. EFFECT OF HEADINGS. The Article and Section headings herein for
convenience only and shall not affect the construction hereof.
11
Exhibit A
GENERAL ELECTRIC COMPANY
("COMPANY")
DEBT SECURITIES AND/OR WARRANTS
TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT
, 2001
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Attention: ______________
Ladies and Gentlemen:
On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we offer to purchase, on and subject to the terms and
conditions of, and utilizing terms as defined in, the Underwriting Agreement
Standard Provisions (Debt Securities and/or Warrants) dated as of
______________, 2001 ("Standard Provisions"), which is attached hereto, the
following securities ("Designated Securities") on the following terms:
DEBT SECURITIES
Indenture:
Title:
Rank:
Aggregate Principal Amount: $
Interest Rate:
Maturity:
Interest Payment Dates:
Regular Record Dates:
Conversion or Exchange Provisions:
A-1
Listing Requirements:
Fixed or Variable Price Offering:
If Fixed Price Offering, initial public offering
price: ____% of the principal amount, plus accrued
interest, if any, from ________
Purchase Price by Underwriters:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agents:
Redemption:
Sinking Fund:
Dealer Concession:
Reallowance Concession:
Method of Payment:
Delayed Delivery Contracts [include only if applicable]:
Delivery Date:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Fee: %
A-2
DEBT WARRANTS
(include only if applicable)
Warrant Agreement:
Number of Debt Warrants to be issued:
Debt Warrant Agreement:
Form of Debt Warrants: Registered
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued with
each $ principal amount of Debt
Securities:]
[Detachable Date:]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price of Debt Warrants:
Purchase Price $
Title of Warrant Debt Securities:
Principal amount of Warrant Debt Securities purchasable
upon exercise of one Debt Warrant:
Indenture:
Title:
Rank:
Aggregate Principal Amount: $
Interest Rate:
Maturity:
Interest Payment Dates:
A-3
Regular Record Dates:
Conversion Provisions:
Listing Requirements:
Fixed or Variable Price Offering:
If Fixed Price Offering, initial public
offering price: ____% of the principal
amount, plus accrued interest, if any,
from ________
Purchase Price by Underwriters:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agents:
Redemption:
Sinking Fund:
Dealer Concession:
Reallowance Concession:
Method of Payment:
Delayed Delivery Contracts [include only if applicable]:
Delivery Date:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Fee: %
A-4
Name and Address of Representative:
The Representative named above and executing this Underwriting Agreement
represents that the Underwriters have authorized the Representative to enter
into this Underwriting Agreement and to act hereunder on their behalf.
The respective principal amounts of the Debt Securities and number of Debt
Warrants to be purchased by each of the Underwriters are set forth opposite
their names in Schedule I hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Closing will take place at A.M., New York City time, on ,
20 , at the offices of [Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000].
Please signify your acceptance by signing the enclosed response to us in
the space provided and returning it to us.
Very truly yours,
---------------------------------
Name:
Title:
as Representative for itself
and the other underwriters named
in Schedule I attached hereto
Accepted:
GENERAL ELECTRIC COMPANY
By _________________________
Name:
Title:
A-5
SCHEDULE I
DEBT SECURITIES
UNDERWRITER PRINCIPAL AMOUNT
DEBT WARRANTS
UNDERWRITER NUMBER OF DEBT WARRANTS
A-6
Exhibit B
FORM OF OPINION OF COMPANY'S CORPORATE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated, is validly existing and is in
good standing under the laws of the State of New York.
(ii) [For Debt Securities] The Indenture has been duly authorized, executed
and delivered by the Company.
(iii) [For Debt Securities] The Debt Securities have been duly authorized,
executed and delivered by the Company.
(iv) [For Debt Securities convertible or exchangeable into Common Stock]
The Common Stock has been duly authorized by the Company for conversion or
exchange pursuant to the Underwriting Agreement. The Common Stock, when issued
and delivered by the Company pursuant to the Underwriting Agreement and the
terms of the applicable Indenture, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar rights of
any securityholder of the Company. No holder of the Common Stock is or will be
subject to personal liability by reason of being such a holder. The form of
certificate used to evidence the Common Stock is in due and proper form and
complies with the applicable statutory requirements, with any applicable
requirements of the charter or by-laws of the Company and with the requirements
of The New York Stock Exchange.
(v) [For Warrants] The Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company.
(vi) [For Warrants] The Warrants, if any, have been duly authorized,
executed and delivered by the Company.
(vii) [For Warrant Debt Securities] The Warrant Debt Securities, if any,
have been duly authorized.
(viii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(x) Neither the execution and delivery of this Agreement nor the issuance
and sale of the Designated Securities by the Company as provided herein will
contravene the Restated Certificate of Incorporation, as amended, or by-laws, as
amended, of the Company or result in any violation, in any material respect,
of any of the terms or provisions of any law or regulation or of any
indenture, mortgage or other agreement or instrument known to such counsel
by which the Company or any
B-1
of its subsidiaries is bound. In addition, such opinion shall state that, based
upon the review and discussion of the contents of the Registration Statement and
the Prospectus and any amendments and supplements thereto (including the
documents of the Company incorporated therein by reference) by him or members of
his staff who report to him with certain officials of the Company, but without
independent check or verification except as stated in such opinion, such counsel
(1) believes that each document incorporated by reference in the Prospectus
which was filed by the Company pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (except as to financial statements and schedules
and other financial and statistical data contained, referred to or incorporated
by reference therein or omitted therefrom, as to which, in each case, such
counsel need not express any belief) did comply, when so filed, as to form in
all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) believes that the Registration
Statement and the Prospectus and any supplements or amendments thereto as of
their respective effective or issue dates (except for (a) financial statements
and schedules and other financial and statistical data contained, referred to or
incorporated by reference therein or omitted therefrom, (b) the statements
contained in the Prospectus under the caption "Description of Debt Securities"
and, if applicable, "Description of Warrants" or "Description of Common Stock"
and in the prospectus supplement relating to the Securities under the caption
"Certain Terms of the Securities" (or a comparable caption or captions) and (c)
supplements relating only to securities other than the Securities, as to which,
in each case, such counsel need not express any belief) complied as to form in
all material respects with the Act and the rules and regulations of the
Commission thereunder, and (3) believes that (except for (a) financial
statements and schedules and other financial and statistical data contained,
referred to or incorporated therein or omitted therefrom, (b) statements
contained in the Prospectus under the caption "Description of Debt Securities"
and, if applicable, "Description of Warrants" and in the prospectus supplement
relating to the Securities under the caption "Certain Terms of the Securities"
(or a comparable caption or captions) and (c) supplements relating only to
securities other than the Securities, as to which, in each case, such counsel
need not express any belief) each part of the Registration Statement at the time
such part became effective did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and that the Prospectus did not
contain, as of the date of the Prospectus Supplement relating to the Designated
Securities, or the Prospectus (as amended or supplemented, other than as to
supplements relating only to securities other than the Designated Securities),
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel (1) may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
and public officials and (2) may state that such counsel expresses no opinion as
to laws, rules, regulations, consents, approvals, authorizations or other orders
other than those of the State of New York and the federal law of the United
States of America, provided that no opinion need be expressed on or in respect
to the New York securities laws or "Blue Sky" laws.
B-2
Exhibit C
FORM OF OPINION OF XXXXX XXXXXXXXXX LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) If the Designated Securities are Debt Securities and assuming the
Indenture has been duly authorized, executed and delivered by the Company, the
Indenture is a valid and binding agreement of the Company, enforceable in
accordance with its terms (subject to applicable equitable principles and except
as may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended;
(ii) If the Designated Securities are Debt Securities and assuming the Debt
Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters (or, in the case of Contract Debt Securities, by purchasers
pursuant to Delayed Delivery Contracts), the Debt Securities, will be valid and
binding obligations of the Company, enforceable in accordance with their terms
(subject to applicable equitable principles and except as may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors,
rights generally) and will be entitled to the benefits of the Indenture;
(iii) If the Designated Securities are Warrants and assuming the Warrant
Agreement has been duly authorized, executed and delivered by the Company, the
Warrant Agreement is a valid and binding agreement of the Company, enforceable
in accordance with its terms (subject to applicable equitable principles and
except as may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally);
(iv) If the Designated Securities are Warrants and assuming the Warrants
have been duly authorized and, when countersigned in accordance with the
provisions of the Warrant Agreement and delivered to and paid for by the
Underwriters (or, in the case of Contract Warrants, by purchasers pursuant to
Delayed Delivery Contracts), the Warrants will be valid and binding obligations
of the Company, enforceable in accordance with their terms (subject to
applicable equitable principles and except as may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors, rights
generally);
(v) If the Designated Securities are Warrant Debt Securities and assuming
the Warrant Debt Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
upon exercise of the Warrants as provided in the Warrant Agreement, the Warrant
Debt Securities will be valid and binding obligations of the Company,
enforceable against it in accordance with their terms (subject to applicable
equitable principles and except as may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally) and will
be entitled to the benefits of the Indenture;
C-1
(vi) If Delayed Delivery Contracts are entered into, assuming the Delayed
Delivery Contracts have been duly authorized, executed and delivered by the
Company, the Delayed Delivery Contracts are valid and binding agreements of the
Company, enforceable in accordance with their terms (subject to applicable
equitable principles and except as may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally); and
(vii) The Designated Securities conform in all material respects to the
description thereof contained in the Prospectus.
Incorporated Documents shall mean the Company's annual, quarterly and
current reports that are incorporated by reference in the Prospectus relating to
the Designated Securities.
In rendering such opinion, such counsel (1) may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
and public officials and (2) may state that such counsel expresses no opinion as
to laws, rules, regulations, consents, approvals, authorizations or other orders
other than those of the State of New York and the federal law of the United
States of America, provided that no opinion need be expressed on or in respect
to the New York securities laws or "Blue Sky" laws.
C-2
Exhibit D
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from General Electric Corporation
( the "Company"), and the Company agrees to sell to the undersigned, on
_____________, 200_, (the "Delivery Date"), $_____________ aggregate principal
amount of the Company's [Debt Securities/Warrants] (the "Securities") offered by
the Company's Prospectus dated __________, 200_, and related Prospectus
Supplement dated ____________, 200_, receipt of a copy of which is hereby
acknowledged, at a [purchase price of ____% of the] [principal amount]
[thereof, plus] [accrued interest] [amortization of original issue discount],
if any, thereon from ___________, 200_, to the date of payment and delivery, and
on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to or upon
the order of the Company in [New York Clearing House (next day)/immediately
available] funds, at your office or at such other place as shall be agreed
between the Company and the undersigned, upon delivery to the undersigned of the
Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written on telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount or number of Securities to
be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the Delivery
Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount or number of Securities as is to be sold to them pursuant to
the Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such sale to the
D-1
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
The obligation of the undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the Securities to be sold
and delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
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 acceptance of this contract and other similar
contracts 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 required 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, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York without reference to choice of law principles.
Very truly yours,
------------------------------
(Name of Purchaser)
By:
--------------------------------
(Signature and title of Officer)
-------------------------------
(Address)
Accepted:
GENERAL ELECTRIC COMPANY
By
--------------------
Name:
Title:
D-2
