Exhibit 1.1
IMC GLOBAL INC.
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
____________, 1997
1. INTRODUCTORY. IMC Global Inc., a Delaware corporation (the
"Company"), proposes to issue and sell from time to time senior debt securities,
subordinated debt securities, convertible subordinated debt securities
(collectively, "Debt Securities"), preferred stock and common stock registered
under the registration statement referred to in Section 2(a) ("Registered
Securities"). If specified in a Terms Agreement referred to in Section 3, the
Company proposes to grant to the underwriters an option to purchase up to that
amount of Registered Securities specified in such Terms Agreement (the "Option
Securities"). Debt Securities will be issued under one or more indentures (as
amended or supplemented from time to time, an "Indenture" and collectively, the
"Indentures"), more particularly described in a Terms Agreement, between the
Company and the trustees named therein (the "Trustee(s)"), in one or more
series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Debt Securities being determined at the time of sale.
The preferred stock will be issued in one or more series, which series may vary
as to voting rights, dividends, optional and mandatory redemption provisions,
liquidation preference and conversion provisions and other terms, with all such
terms for any particular series or issue of the preferred stock being determined
at the time of sale. The Registered Securities will be sold pursuant to a Terms
Agreement, for resale in accordance with terms of offering determined at the
time of sale.
The Registered Securities (together with the Option 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 "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement 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 shall mean the Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as of the date of this Agreement as follows:
(a) A registration statement on Form S-3 (File No. 333-______)
with respect to the Registered Securities has (i) been prepared by
the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and (ii) been
filed with the Commission under the Securities Act. Such
registration statement has become effective under the Securities
Act. If any post-effective amendment to such registration
statement has been filed with the Commission prior to the date of
the applicable Terms Agreement, the most recent such amendment has
been declared effective by the Commission. Copies of such
registration statement and any amendments thereto have been
delivered by the Company to the Representatives. As used in this
Agreement, "Effective Time" means the respective date and time as
of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by
the Commission; and "Effective Date" means the respective
applicable date of the Effective Time. As provided in Section
4(a), a prospectus supplement relating to the Securities, the terms
of the offering thereof and the other matters set forth therein has
been prepared and will be filed pursuant to Rule 424 under the
Securities Act. In addition, a preliminary prospectus supplement
reflecting the terms of the Securities, the terms of the offering
thereof, and the other matters set forth therein also may be
prepared and filed pursuant to Rule 424 under the Securities Act.
Such prospectus supplement, in the form filed on or after the date
of this Agreement pursuant to Rule 424, is referred to in this
Agreement as the "Prospectus Supplement", and any such preliminary
prospectus supplement in the form filed after the date of this
Agreement pursuant to Rule 424 is referred to as the "Preliminary
Prospectus Supplement." Any
2
prospectus accompanied by a Preliminary Prospectus Supplement is
referred to in this Agreement, collectively with such Preliminary
Prospectus Supplement, as a "Preliminary Prospectus." The
registration statement referred to in this Section 2(a), as amended
at the time of the Terms Agreement, including the exhibits thereto
(but excluding the Statement of Qualification and Eligibility
("Form T-1")) and the documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), that are incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act
(the "Incorporated Documents") and the information, if any, deemed
to be a part of the registration statement pursuant to Rule 430A(b)
under the Securities Act, is called the "Registration Statement";
and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by
the Prospectus Supplement, is called the "Prospectus", except that,
if such basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed pursuant
to Rule 424, the term "Prospectus" shall refer to the basic
prospectus as so amended or supplemented and as supplemented by the
Prospectus Supplement, in either case including the Incorporated
Documents. Notwithstanding the foregoing, any prospectus supplement
prepared or filed with respect to an offering pursuant to the
Registration Statement of securities other than the Securities
shall not be deemed to have supplemented the Prospectus. The
Commission has not issued any order suspending the effectiveness of
the Registration Statement, and no stop order has been initiated or
threatened by the Commission.
(b) On the Effective Date, the Registration Statement conformed
in all material respects to the requirements of the Securities Act and
the Rules and Regulations, and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and on the date of the applicable Terms Agreement, and at the time of
filing of the Prospectus pursuant to Rule 424(b), the Prospectus will
conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations, and 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, in the light of the
circumstances under which they were made, not misleading; and on the
Effective Date and the Closing Date, respectively, the Indenture, if
any, described in the Terms Agreement conformed and will conform in
all material respects with the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the applicable
rules and regulations thereunder; PROVIDED that no representation or
warranty is made as to (i) information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically
for inclusion therein or (ii) that part of the Registration Statement
which shall constitute the Form T-1 under the Trust Indenture Act.
(c) The Company and each of its subsidiaries (as defined in Rule
405 of the Rules and Regulations) have been duly incorporated and are
validly existing as corporations in good standing under the general
corporation 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
or lease of property or the conduct of their respective businesses
requires such qualification and in which the failure to be so
incorporated, existing or qualified would reasonably be expected to
have a material adverse effect on the business, properties, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company, other than those so identified in the
Terms Agreement, is a "significant subsidiary," as such term is
defined in Rule 405 of the Rules and Regulations.
(d) All of the issued shares of capital stock of each
significant subsidiary of the Company have been duly and validly
authorized and issued and are fully paid, non-assessable and,
except for
3
shares of Preferred Stock of The Vigoro Corporation, are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company
and the consummation of the transactions contemplated hereby and
thereby and compliance by the Company with the provisions of the
Indenture, if any, described in the Terms Agreement and the Securities
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its significant subsidiaries is a party or
by which the Company or any of its significant subsidiaries is bound
or to which any of the property or assets of the Company or any of its
significant subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of the
Company or any of its significant subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its significant
subsidiaries or any of their properties or assets; and except for the
registration of the Securities under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Trust Indenture Act or the Exchange Act,
and applicable state or foreign securities laws in connection with the
offer, sale and distribution of the Securities by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company
and the consummation of the transactions contemplated hereby and
thereby or compliance by the Company with the provisions of the
Indenture, if any, described in the Terms Agreement.
(f) Except for the Registration Rights Agreement dated March 1,
1996 between the Company and certain former shareholders of The Vigoro
Corporation (the "Registration Rights Agreement"), there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
include any securities owned or to be owned by such person in the
securities registered pursuant to the Registration Statement, or,
except as described in the Prospectus or Schedule B to the Terms
Agreement (or in Schedule B to any applicable Officers' Certificate
delivered pursuant to Section 6(g)), to require the Company to file
any other registration statement under the Securities Act (other than
a registration statement on Form S-8) with respect to any securities
of the Company owned or to be owned by such person or to require the
Company to include such securities in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act. Each of the persons who is a party to the
Registration Rights Agreement has waived such person's rights with
respect to including securities owned by such person in the
Registration Statement.
(g) The Indenture, if any, described in the Terms Agreement has
been duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery thereof by the
Trustee under the Indenture) constitutes the valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms; the Debt Securities, if any, described in
the Terms Agreement have been duly authorized by the Company and, when
the terms of the Debt Securities and of their issuance and sale have
been duly established in accordance with the Indenture, this Agreement
and the Terms Agreement and the Debt Securities have been duly
executed, authenticated, issued and delivered in the manner provided
in the Indenture and paid for in accordance with this Agreement and
the Terms Agreement, the Debt Securities will be duly and validly
issued and delivered by the Company and will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of
the Indenture; if any Securities to be issued are convertible, the
shares of common stock issuable upon conversion thereof have been duly
authorized by the Company, have been duly reserved for issuance upon
conversion of the Securities and, when issued upon the conversion of
the Securities, will be duly and validly issued, fully paid and non-
4
assessable; the common stock and preferred stock, if any, described in
the Terms Agreement have been duly authorized by the Company and, when
issued and paid for pursuant to the Terms Agreement, will be duly and
validly issued, fully paid and non-assessable; no further approval or
authority of the stockholders or the Board of Directors of the Company
will be required for the issuance and sale of the Securities as
contemplated herein or the issuance of the shares of common stock upon
conversion of the Securities; and the Securities, the Indenture, if
any, described in the Terms Agreement and the capital stock of the
Company will conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus.
(h) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which would
reasonably be expected to have a material adverse effect on the
business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any material change in the
capital stock or long-term debt of the Company or any of its
subsidiaries (otherwise than as set forth or contemplated in the
Prospectus) or any material adverse change in or affecting, or any
adverse development which materially affects, the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(i) The financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
Registration Statement or included or incorporated by reference in the
Prospectus present fairly in all material respects the financial
condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein.
(j) Ernst & Young LLP, or such other independent accountants
acceptable to the Representatives, who have certified certain
financial statements of the Company and whose report appears or is
incorporated by reference in the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and
Regulations during the periods covered by the financial statements on
which they reported contained in the Prospectus.
(k) The Company has no reason to believe that the Company and
each of its subsidiaries do not own or possess adequate rights to use
all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their respective
businesses in the manner described in the Prospectus and have no
reason to believe that the conduct of their respective businesses will
conflict with any such rights of others, and have not received any
notice of any claims of conflict with any such rights of others, which
claims are reasonably expected to have a material adverse effect on
the business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole.
(l) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which are reasonably expected to
have a material adverse effect on the business, properties, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole; and to the actual knowledge of
the Company, no such proceedings are threatened by governmental
authorities or by others.
5
(m) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
filed as exhibits to the Registration Statement.
(n) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus and which is not
so described.
(o) Except as described in the Prospectus or Schedule C to the
Terms Agreement (or in Schedule C to any applicable Officers'
Certificate delivered pursuant to Section 6(g)), since the date as of
which information is given in the Prospectus, the Company has not (i)
issued or granted any rights to acquire any securities (other than
pursuant to employee benefit plans or other compensation plans
existing on the date of the Terms Agreement) or (ii) declared or paid
any dividend on its capital stock other than regular quarterly cash
dividends.
(p) Neither the Company nor any of its subsidiaries,
respectively, (iii) is in violation of its charter or by-laws, (iv) is
in default, and no event has occurred which, with notice or lapse of
time or both, would constitute a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (v)is in
violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business except, in the case
of clauses (ii) and (iii), for those defaults, violations or failures
which, either individually or in the aggregate, are not reasonably
expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole.
(q) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under
the United States Investment Company Act of 1940.
3. PURCHASE AND OFFERING OF THE SECURITIES BY THE UNDERWRITERS. The
obligation of the Underwriters to purchase the Securities will be evidenced
by an exchange of a telegram, telex or other written communications ("Terms
Agreement") at each time the Company determines to sell the Securities.
Each Terms Agreement will be in the form of Annex II (A) or (B) attached
hereto and 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, the names of any Representatives, the amount to
be purchased by each Underwriter, the purchase price to be paid by the
Underwriters and certain terms of the Securities and whether any of the
Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts (as defined below). The Terms Agreement will also
specify the time and date of delivery and payment (such time and date being
herein and in the Terms Agreement referred to as the "Closing Date"), the
place of delivery and payment and any details of the terms of public
offering that should be reflected in the Prospectus Supplement relating to
the offering of the Securities. The obligations of the Underwriters to
purchase the Securities will be several and not joint. It is understood
that the Underwriters propose to offer the Securities for sale as set forth
in the Prospectus. Debt Securities, if any, delivered to the Underwriters
on the Closing Date will be in definitive fully registered form, in such
denominations and registered in such names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions set forth in this Agreement, the
Company grants an option to the several Underwriters to purchase, severally
and not jointly, up to that amount of the Option Securities as shall be
specified in the Terms Agreement from the Company at the same price as the
Underwriters shall pay for the Registered Securities. Said option may be
exercised only to cover
6
over-allotments in the sale of the Registered Securities by the
Underwriters and may be exercised in whole or in part at any time on or
before the thirtieth day after the date of the Terms Agreement upon
written or telegraphic notice by the Representatives to the Company
setting forth the amount of the Option Securities as to which the
several Underwriters are exercising the option. The amount of Option
Securities to be purchased by each Underwriter shall be the same
percentage of the total amount of the Option Securities to be purchased
by the several Underwriters as such Underwriter is purchasing of the
Registered Securities, as adjusted by the Representatives in such manner
as the Representatives deem advisable to avoid fractional shares/units.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to
solicit offers to purchase Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contract") with such changes therein as the Company may authorize
or approve. Delayed Delivery Contracts are to be made only 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,
the fee set forth in such Terms Agreement in respect of the amount of
Securities to be sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters 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 the aggregate amount of Securities to be purchased
by each Underwriter will be reduced pro rata in proportion to the amount of
Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Representatives determine that
such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the amount of Contract Securities.
4. COVENANTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus, including the Prospectus
Supplement, pursuant to Rule 424(b) within the time period prescribed
by the Rules and Regulations; to notify the Representatives, promptly
after it receives notice, of the time when the Registration Statement
or any amendment thereto becomes effective or promptly after the
filing of any supplement or amendment to the Prospectus (other than
any Incorporated Document or any amendment or supplement relating to
an offering of securities other than the Securities) and to furnish
the Representatives with copies thereof; to notify the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all exhibits filed therewith;
(c) To furnish promptly to each of the Representatives copies of
the Registration Statement, including all exhibits, any Preliminary
Prospectus, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
are reasonably requested;
7
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may be required by the Securities Act, in the
reasonable judgment of the Company or the Representatives, or
requested by the Commission;
(e) Prior to filing with the Commission any (i) amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations (other
than any Incorporated Document or any amendment or supplement relating
to an offering of securities other than the Securities), to furnish a
copy thereof to the Representatives and counsel for the Underwriters;
(f) As soon as practicable but no later than 16 months after the
date of each Terms Agreement, to make generally available to its
security holders an earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act (including, at the option of the Company, Rule
158) covering a period of at least twelve months beginning on the
first day of the first fiscal quarter of the Company commencing after
the later of (i) the effective date of the Registration Statement,
(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;
(g) During the period, if any, specified in the Terms Agreement
after the date of such Terms Agreement, to furnish to the
Representatives copies of all materials furnished by the Company to
its stockholders and all public reports and financial statements
furnished by the Company to the principal national securities exchange
upon which the common stock of the Company may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Promptly from time to time, to take such action as the
Representatives reasonably may request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities; PROVIDED, HOWEVER, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
and
(i) For the period specified in the Terms Agreement, to not, (A)
in the event of an offering of common stock, preferred stock or
convertible debt securities, (i) offer for sale, sell or otherwise
dispose of, directly or indirectly, any shares of common stock of the
Company or permit the registration under the Securities Act of any
shares of common stock of the Company (other than the Securities and
shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans), (ii) sell or grant
options, rights or warrants with respect to any shares of common stock
of the Company (other than the Securities and the grant of options
pursuant to employee benefit plans), or (iii) offer for sale, sell or
otherwise dispose of, directly or indirectly, any securities
convertible into or, exchangeable or exercisable for common stock of
the Company (other than the Securities), without, in any case, the
prior written consent of a majority of the Representatives; PROVIDED,
HOWEVER, the Company may, without such consent, offer and sell shares
of common stock of the Company in transactions exempt from the
registration requirements of the Securities Act, provided that the
purchasers in such transactions are prohibited from offering for sale,
selling or otherwise disposing of, directly or indirectly, any of the
shares of common stock of the Company so acquired by them for the
remainder of the period specified in the Terms Agreement and, (B) in
the event of an offering of Debt Securities, between the date of the
Terms Agreement and the date of delivery of the Debt Securities, offer
for sale, sell or cause to be offered for sale or
8
sold, without the prior written consent of a majority of the
Representatives, any debt securities which are substantially similar
to the Securities.
5. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Securities and any
taxes payable in connection therewith;(b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto;(c) the costs of
distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereto (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus and any Incorporated Documents, all
as provided in this Agreement;(d) the costs of reproducing and distributing
this Agreement;(e) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of sale
of the Securities, if necessary;(f) any applicable stock exchange listing or
other fees;(g) the fees and expenses of filings, if any, with foreign
securities administrators and of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(h) and
of preparing, reproducing and distributing a Blue Sky Memorandum (including
related fees (in an amount not to exceed $10,000) and disbursements of
counsel to the Underwriters); (h) the fees paid to rating agencies in
connection with the rating of the Securities; (i) the costs of printing and
issuance of certificates, if any; (j) reasonable fees and disbursements of
the Trustee and any transfer agent; and (k) all other reasonable costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; PROVIDED that except as provided in this Section 5 and in
Section 10, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Securities which they may sell and the expenses of advertising any offering
of the Securities made by the Underwriters, and the Company shall pay the
fees and expenses of its counsel and any transfer taxes payable in connection
with its sale of Securities to the Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and at the time of delivery of any Securities pursuant to a Terms
Agreement, of the representations and warranties of the Company contained in
this Agreement, to the performance by the Company of its obligations under
this Agreement, and to each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) under the Securities Act within
the applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 4(a); no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of the counsel for the
Underwriters, is material or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Terms Agreement,
the Indenture, if any, described in the Terms Agreement, the Securities,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the Terms Agreement and the transactions
contemplated hereby and thereby shall be satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
9
(d) Sidley & Austin, counsel to the Company, or other counsel to the
Company satisfactory to the Representatives, shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed
to the Underwriters and dated the Closing Date, and, if Option Securities
are purchased, at any date after the Closing Date as specified in a Terms
Agreement, additional opinions from such counsel, in form and substance
acceptable to the Representatives to the effect that:
(i) The Indenture, if any, described in the Terms Agreement has
been duly authorized, executed and delivered by the Company and duly
qualified under the Trust Indenture Act, and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing;
(ii) The Debt Securities, if any, described in the Terms
Agreement have been duly authorized by the Company, and when the Debt
Securities have been duly executed, authenticated, issued and
delivered in the manner provided in the Indenture and paid for in
accordance with this Agreement and the Terms Agreement or, in the case
of Contract Securities, in accordance with Delayed Delivery Contracts,
the Debt Securities will be duly and validly issued and delivered by
the Company and will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing;
(iii) If any Securities to be issued are convertible into common
stock, the shares of common stock initially issuable upon conversion
of the Securities have been reserved for issuance upon such
conversion; and when certificates therefor have been duly executed,
countersigned, registered and delivered upon such conversion, will
constitute shares of common stock which have been duly authorized and
validly issued and are fully paid and non-assessable;
(iv) The common stock and preferred stock, if any, described in
the Terms Agreement; when certificates therefor have been duly
executed, countersigned, registered and delivered in accordance with
this Agreement and the Terms Agreement or, in the case of Contract
Securities, in accordance with Delayed Delivery Contracts, constitute
shares of common stock or preferred stock, as the case may be, which
have been duly authorized and validly issued and are fully paid and
non-assessable;
(v) The Registration Statement was declared effective under the
Securities Act as of the date specified in such opinion; any required
filing of the Prospectus pursuant to Rule 424(b) of the Rules and
Regulations has been made within the time period prescribed for such
filing by the Rules and Regulations; and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by
the Commission;
(vi) At the Effective Time, the Registration Statement (including
all documents incorporated by reference therein) complied, and on the
date of the Terms Agreement, the Prospectus (including all documents
incorporated by reference therein) complies, and any further
amendments or supplements thereto made by the Company on or prior to
the date of such opinion comply (other than, in each case, the
financial statements and related schedules and other financial and
statistical data included or incorporated by reference therein and the
Form T-1 under the Trust Indenture Act, as to which such counsel need
express no opinion) as to form in all material respects with the
10
requirements of the Securities Act the Exchange Act and the applicable
rules and regulations under said Acts;
(vii) The Securities, other than any Contract Securities, the
Indenture and the capital stock of the Company conform, and any
Contract Securities, when issued, delivered and sold, will conform, in
all material respects to the descriptions thereof contained or
incorporated by reference in the Registration Statement and the
Prospectus; and the provisions of the contracts, agreements and
instruments (as the same may be in effect on the Closing Date)
summarized in the Prospectus, any supplement thereto or any document
incorporated by reference therein, conform in all material respects to
the descriptions thereof in the Prospectus, any supplement thereto or
any document incorporated by reference therein;
(viii) To such counsel's knowledge, there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been so filed.
(ix) The Terms Agreement, this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company; and
(x) The sale of the Securities by the Company, compliance by the
Company with all of the provisions of this Agreement, the Terms
Agreement, the Indenture, if any, described in the Terms Agreement,
any Delayed Delivery Contracts and the Securities and the consummation
by the Company of the transactions contemplated hereby and thereby
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any agreement or
instrument scheduled in such opinion (as in effect on the date of such
opinion); and, except for the registration of the Securities under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Trust
Indenture Act, the Exchange Act and applicable state or foreign
securities laws in connection with the offer and sale of the
Securities by the Underwriters, to such counsel's knowledge, no
consent, approval, authorization or order of, or filing or
registration with, any court or any governmental agency or body is
required for the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby;
In addition, such counsel shall state that in the course of the preparation
of the Registration Statement and the Prospectus, such counsel has
considered the information set forth therein in light of the matters
required to be set forth therein and such counsel has participated in
conferences with officers and representatives of the Company, including its
independent public accountants and, with respect to the Prospectus,
representatives of and counsel for the Representatives during the course of
which the contents of the Registration Statement and Prospectus and related
matters were discussed and, although such counsel shall not have
independently checked the accuracy or completeness of, or otherwise
verified, and accordingly are not passing upon, and shall not assume
responsibility for, the accuracy, completeness or fairness of the
statements contained in or incorporated by reference in the Registration
Statement and Prospectus (except as set forth in subparagraph (vii) above),
and that such counsel has relied as to materiality, to a large extent, upon
the judgment of officers and representatives of the Company, as a result of
such consideration and participation, nothing has come to the attention of
such counsel which causes such counsel to believe that the Registration
Statement, as of the Effective Time or, if later, as of the date of the
Company's most recent filing of an Annual Report on Form 10-K (including
such Annual Report on Form 10-K), 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 that
the Prospectus, as of the date of such opinion, includes an untrue
statement of a material fact or omits 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 (except that, in each case, such
counsel need not express any belief as to the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus).
11
In rendering such opinion, such counsel may (i) state that their
opinion is limited to the federal laws of the United States, the laws of
the State of New York and the General Corporation Law of the State of
Delaware, (ii) rely as to matters of fact upon the representations
contained in this Agreement and the certificates of officers of the Company
and it subsidiaries and of public officials; PROVIDED that such counsel
shall furnish copies thereof to the Representatives.
(e) The General Counsel or other counsel of the Company, shall have
furnished to the Representatives his written opinion, addressed to the
Underwriters and dated the Closing Date, and, if Option Securities are
purchased, at any date after the Closing Date as specified in a Terms
Agreement, additional opinions from such counsel, in form and substance
satisfactory to the Representatives to the effect that:
(i) The Company and each of its significant subsidiaries (as
defined in Rule 405 under the Securities Act and identified in the
Terms Agreement) have been duly incorporated and are validly existing
as corporations in good standing under the general corporation laws of
their respective jurisdictions of incorporation and have all corporate
power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are engaged;
(ii) All of the issued shares of capital stock of each
significant subsidiary have been duly and validly authorized and
issued and are fully paid, non-assessable and (except for directors'
qualifying shares) owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set
forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which are reasonably
expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole;
and, to such counsel's knowledge, no such proceedings are
threatened by governmental authorities or by others;
(iv) The sale of the Securities by the Company and the
compliance by the Company with all of the provisions of this
Agreement, the Terms Agreement, the Indenture, if any, described in
the Terms Agreement, any Delayed Delivery Contract and the
Securities, and the consummation of the transactions contemplated
hereby and thereby will not result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor
will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any significant subsidiary or
of any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets (except that such counsel need express
no opinion with respect to applicable state or foreign securities
laws);
(v) To such counsel's knowledge, neither the Company nor any
significant subsidiary (A) is in violation of its charter or by-laws,
(B) is in default, and no event has occurred, which, with notice or
lapse of time or both, would constitute a default, in the due
performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound
or to which any of its properties or assets is subject or (C) is in
violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business except, in the case
of clauses (B) and (C), for those defaults, violations or failures
which, either individually or
12
in the aggregate, are not reasonably expected to have a material
adverse effect on the business, properties, financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; and
(vi) To such counsel's knowledge, except for the Registration
Rights Agreement, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to include any securities owned or to be owned by
such person in the securities registered pursuant to the Registration
Statement, or, except as described in the Prospectus or Schedule B to
the Terms Agreement, to require the Company to file any other
registration statement under the Securities Act (other than a
registration statement on Form S-8) with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act.
In rendering such opinion, such counsel may (i) state that his opinion
is limited to the federal laws of the United States, the laws of the State
of Nebraska and the General Corporation Law of the State of Delaware and
(ii) rely as to matters of fact upon certificates of officers of the
Company and its subsidiaries and of public officials; PROVIDED that such
counsel shall furnish copies thereof to the Representatives and state that
he believes that the Underwriters and such counsel are justified in relying
upon such certificates.
(f) The Company shall have furnished to the Representatives on the
Closing Date a letter of Ernst & Young LLP, addressed jointly to the
Company and the Underwriters and dated the Closing Date of the type
described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 72, and covering such additional
financial statement items and procedures (including a review of interim
financial statements specified in the American Institute of Certified
Public Accountants' Statement on Auditing Standards No. 71) as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives.
(g) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, and on any later date, if any, on
which Option Securities are purchased, of its Chief Financial Officer or
Treasurer and its General Counsel or other counsel stating that:
(i) The representations and warranties of the Company in Section
2 of this Agreement are true and correct as of such date; the Company
has performed all of its agreements contained in this Agreement which
are required to be performed on or before the date of such certificate
and the conditions set forth in subsections 6(h) and (j) of this
Agreement have been fulfilled; and no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and
(ii) They have examined the Registration Statement and the
Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement did not contain an untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, as of the date of such certificate, the Prospectus
does not include an 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, and (B) since the Effective Date no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement or Prospectus which has not been set forth in
such a supplement or amendment.
(h)(i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set
13
forth or contemplated in the Prospectus and (ii) since such date there
shall not have been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries (otherwise than
as set forth or contemplated in the Prospectus or in a supplement
thereto) or any change in or affecting, or any adverse development which
affects, the business, properties, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered on the
Closing Date on the terms and in the manner contemplated herein or in
the Prospectus or in a supplement thereto.
(i) Subsequent to the execution and delivery of the Terms Agreement
there shall not have occurred any of the following:(i) trading in
securities generally on the New York Stock Exchange, Inc. (the "NYSE"), the
American Stock Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction,(ii) a
banking moratorium shall have been declared by Federal or state authorities
or (iii) the United States shall have become engaged in hostilities, there
shall have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by the
United States.
(j) Subsequent to the execution and delivery of the Terms Agreement,
(i) no downgrading shall have occurred in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Securities), to which that Underwriter or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon,(i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by that
Underwriter or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein; and PROVIDED FURTHER,
that as to any Preliminary Prospectus or supplement thereto this indemnity
agreement shall not inure to the benefit of any Underwriter or any person
controlling that Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Securities to any person by that Underwriter if
that Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus or supplement thereto was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company with Section
4(c). For purposes of
14
the second proviso to the immediately preceding sentence, the term Prospectus
shall not be deemed to include the documents incorporated by reference
therein, and no Underwriter shall be obligated to send or give any supplement
or amendment to any document incorporated by reference in a Preliminary
Prospectus or supplement thereto or the Prospectus to any person other than a
person to whom such Underwriter has delivered such incorporated documents in
response to a written request therefor. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to any
Underwriter or to any controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, each of its directors (including any person
who, with his or her consent, is named in the Registration Statement as about
to become a director of the Company), each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon,(i) any
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus or
in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through the Representatives by
or on behalf of that Underwriter specifically for inclusion therein, and
shall reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer
or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 7, the indemnified party shall notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under
this Section 7. If any such claim or action shall be brought against an
indemnified party, and the indemnified party shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Underwriters against the
Company under this Section 7, if, in the reasonable judgment of the
Representatives, if there are legal defenses available to them which are
different from or in addition to those available to such indemnifying party
(it being understood that the Company shall not, in connection with any one
such claim or action or separate but substantially similar or related claims
or actions in the same jurisdiction arising out of the same allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (other than local counsel which shall be
engaged only for purposes of appearing with such counsel in such
jurisdictions in which such firm of attorneys is not licensed to practice)),
and in that event the fees and expenses of such separate counsel shall be
paid by the Company. Anything in this Section 7(c) to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement
of any claim or action effected without its written consent.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein (other than by
reason of the failure to give notice, as provided in the first sentence of
Section 7(c)), then each indemnifying party shall, in lieu of indemnifying such
15
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i)in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the 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 on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to in this Section 7(d). The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 7(d) shall be deemed to include, for purposes of this Section
7(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Underwriter 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 was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 7(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Securities set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
(f) The agreements contained in Sections 4(f), 4(g), 5 and this
Section 7 and the representations and warranties of the Company in Section 2 (as
made as of the date of this Agreement) shall survive the delivery of the
Securities and shall remain in full force and effect, regardless of any
termination or cancellation of the Terms Agreement incorporating the terms of
this Agreement or any investigation made by or on behalf of any indemnified
party.
8. DEFAULTING UNDERWRITERS. If any Underwriter defaults in the
performance of its obligations under a Terms Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities
which the defaulting Underwriter agreed but failed to purchase in the
respective proportions which the number of shares or principal amount of
Securities set opposite the name of each remaining non-defaulting Underwriter
in Schedule A to the Terms Agreement bears to the total number of shares or
principal amount of the Securities set opposite the names of all the
remaining non-defaulting Underwriters in Schedule A to the Terms Agreement;
PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Securities on the Closing Date if the aggregate
number of shares or principal amount of the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date
exceeds [9.09%] of the total number of shares or principal amount of the
Securities, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than [110%] of the number of shares or principal
amount of Securities set forth opposite its name on Schedule A to the Terms
Agreement. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such
16
proportion as may be agreed upon among them, all the Securities. If the
remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the number of shares or principal
amount which the defaulting Underwriter or Underwriters agreed but failed to
purchase, the Terms Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses to the extent set
forth in Sections 5 and 10.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the Representatives or the
Company may postpone the Closing Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement,
the Prospectus or any supplement thereto or in any other document or
arrangement.
9. EFFECTIVE DATE AND TERMINATION. The obligations of the
Underwriters under the Terms Agreement may be terminated by the
Representatives by notice given to and received by the Company prior to
delivery of any payment for the Securities if, prior to that time, the events
described in any of Section 6(h), 6(i) or 6(j) shall have occurred.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Securities for delivery to the Underwriters for any
reason permitted under this Agreement or the Terms Agreement or (b) the
Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement or the Terms Agreement (including the
termination of the Terms Agreement pursuant to Section 9), the Company shall
reimburse the Underwriters for the reasonable fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with the Terms Agreement and the
proposed purchase of the Securities, and upon demand the Company shall pay
the full amount thereof to the Representatives. If the Terms Agreement is
terminated pursuant to Section 8 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any Underwriter
on account of those expenses.
11. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing and shall be deemed duly given if mailed or
transmitted by any standard form of telecommunication. Such notices shall be
directed as follows:
(a) if to the Underwriters, to their addresses furnished to the
Company in writing for the purpose of communications hereunder;
(b) if to the Company, to the address of the Company set forth in the
Registration Statement, Attention: General Counsel;
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 7(c)
shall be given to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. The Terms Agreement
(including the provisions of this Agreement) shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. The Terms Agreement (including the provisions of this Agreement)
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement also shall be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy
17
or claim under or in respect of this Agreement or any provision contained in
this Agreement. No purchaser of Securities from any Underwriter shall be
deemed to be a successor solely by reason of such purchase.
13. DEFINITION OF THE TERM "BUSINESS DAY". For purposes of this
Agreement, "business day" means any day on which the NYSE is open for trading.
14. GOVERNING LAW. This Agreement and the Terms Agreement shall be
governed by and construed in accordance with the laws of Illinois (without
giving effect to the principles of choice of law).
15. COUNTERPARTS. The Terms Agreement may be executed in
counterparts and each such counterpart shall be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
2
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 _____________________ , 19 (*)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
IMC GLOBAL INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from IMC GLOBAL INC., a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [IF ONE DELAYED CLOSING, INSERT---as of the date hereof, for
delivery on __________________, 19__ ("Delivery Date"),]
[$] ________________________
principal amount of the Company's [INSERT TITLE OF SECURITIES] ("Securities"),
offered by the Company's Prospectus dated , 19 and a
Prospectus Supplement dated , 19 , relating thereto, receipt of copies
of which is hereby acknowledged, at % of the principal amount thereof plus
accrued interest from , 19 , if any, and on the further terms
and conditions set forth in this Delayed Delivery Contract ("Contract").
[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:
DELIVERY DATE PRINCIPAL AMOUNT
___________________________ [$] __________________
___________________________ [$] __________________
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 certified or official bank check in [New York Clearing House (next
day)] funds at the office of ____________________ at 10:00 A.M. on the
Delivery Date upon delivery to the undersigned of the Securities to be purchased
by the undersigned for delivery on such Delivery Date in definitive 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 such Delivery Date.
________________________________
(*) Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
3
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 -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 of the Securities less the principal amount 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 a copy of the opinion of counsel
for the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on
a first-come, first-served basis. If 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,
IMC GLOBAL INC.
By ____________________________
Name:
Title:
ANNEX II (A)
IMC GLOBAL INC.
("Company")
Debt Securities
TERMS AGREEMENT
___________,19__
IMC Global Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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 Basic Provisions of the Company
attached hereto (the "Underwriting Agreement"), the following securities
("Securities") to be issued under an indenture, dated ________, 19__, between
the Company and _______________, as Trustee, on the following terms:
TITLE: [ %] [Floating Rate] [Senior] [Subordinated] [Notes] [Debentures]
Due _____
PRINCIPAL AMOUNT: [$]
INTEREST: [ % per annum, from , 19 , payable semiannually on
and commencing , 19 , to holders of record on the
preceding or , as the case may be.] [Zero
coupon]
MATURITY: , 19 .
OPTIONAL REDEMPTION:
SINKING FUND:
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING AGREEMENT:
__ years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(i) OF THE UNDERWRITING AGREEMENT:
__ days.
[CONVERSION PROVISIONS]:
[Other Terms]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
, 19 . Underwriters' fee is % of the principal amount of the Contract
Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest [, if any,]
from , 19 .
EXPECTED REOFFERING PRICE: % of principal amount, subject to change by
the undersigned.
2
CLOSING DATE: A.M. on , 19 , at
__________________________ in New York [Clearing House (next day)] [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 significant subsidiaries (as defined in Rule 405 under the
Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are incorporated herein
by reference [IF APPROPRIATE, INSERT--, except that the obligations and
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities].
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.]
[Please signify your acceptance of the foregoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of
[themselves][itself] and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By ______________________
Name:
Title:
SCHEDULE A
Principal
UNDERWRITER AMOUNT
___________
Total. . . . . . . . . . . . . . . . . . . . . . . . . [$]
SCHEDULE B
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
, 19 , relating to [$] principal amount of our [INSERT TITLE OF
SECURITIES] (the "Terms Agreement"). We also confirm that, to the best of our
knowledge after reasonable investigation, the representations and warranties of
the undersigned contained in Section 2 of the Underwriting Agreement Basic
Provisions of the Company referred to in the Terms Agreement (together with the
Terms Agreement, the "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 (or in
the case of a form of prospectus filed pursuant to Rule 424(b)(2) or (5) there
will be, as of the date of such prospectus) 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,
IMC GLOBAL INC.
By __________________________________
Name:
Title:
ANNEX II (B)
IMC GLOBAL INC.
("Company")
Equity Securities
TERMS AGREEMENT
,19__
IMC Global Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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 Basic Provisions of the
Company attached hereto (the "Underwriting Agreement"), the following securities
("Securities") on the following terms:
TITLE: [Common Stock] [Preferred Stock, Series ______]
NUMBER OF SHARES TO BE ISSUED: [ shares]
[For Preferred Stock:
VOTING RIGHTS:
PREFERRED STOCK DIVIDENDS: [cash dividends of $ to $ per share
payable quarterly in arrears on _____ __, ______ __, _______ __ and _______ __.]
OPTIONAL REDEMPTION:
MANDATORY REDEMPTION/SINKING FUND:
LIQUIDATION PREFERENCE: [$ per share plus ].
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange] [NASDAQ National
Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING AGREEMENT:
years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(i) OF THE UNDERWRITING AGREEMENT:
___ days.
[CONVERSION PROVISIONS]:
[Other Terms]
PRICE TO PUBLIC: $____________ per share
2
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
OVER-ALLOTMENT OPTION:
CLOSING DATE: A.M. on , 19 , at
in New York [Clearing House (next day)] [Federal (same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
[For Common Stock:
NAME OF EXCHANGE OR MARKET: [New York Stock Exchange] [NASDAQ National
Market System] [American Stock Exchange]
PERIOD DESIGNATED PURSUANT TO SECTION 4(g) OF THE UNDERWRITING AGREEMENT:
years.
PERIOD DESIGNATED PURSUANT TO SECTION 4(i) OF THE UNDERWRITING AGREEMENT:
___ days.
[Other Terms]
PRICE TO PUBLIC: $______________ per share
UNDERWRITING DISCOUNTS AND COMMISSION:
PROCEEDS TO COMPANY:
OVER-ALLOTMENT OPTION:
CLOSING DATE: A.M. on , 19 , at
in New York [Clearing House (next day)] [Federal (same-day)] funds.
NAME OF TRANSFER AGENT AND REGISTRAR:
[NAME[S] AND ADDRESS[ES] OF REPRESENTATIVE[S]:]]
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with your consent,
amend this offer to add additional Underwriters and reduce the number of shares
to be purchased by the Underwriters listed in Schedule A hereto by the number of
shares to be purchased by such additional Underwriters.]
The significant subsidiaries (as defined in Rule 405 under the
Securities Act of 1933) of the Company are as follows:
The provisions of the Underwriting Agreement are incorporated herein
by reference [IF APPROPRIATE, INSERT--, except that the obligations and
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the above Securities].
The Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
3
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return wire not
later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of [themselves]
[itself] and as Representative[s] of the
Several] [As] Underwriters[s]
[By [Name of Representative]]
By __________________________
Name:
Title:
SCHEDULE A
NUMBER OF
UNDERWRITER SHARES
__________
Total. . . . . . . . . . . . . . . . . . . . . . [$]
==========
SCHEDULE B
SCHEDULE C
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
, 19 , relating to shares of our [INSERT TITLE OF SECURITIES]
(the "Terms Agreement"). We also confirm that, to the best of our knowledge
after reasonable investigation, the representations and warranties of the
undersigned contained in Section 2 of the Underwriting Agreement Basic
Provisions of the Company referred to in the Terms Agreement (together with the
Terms Agreement, the "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 (or in
the case of a form of prospectus filed pursuant to Rule 424(b)(2) or (5) there
will be, as of the date of such prospectus) 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,
IMC GLOBAL INC.
By ________________________
Name:
Title:
