Exhibit 1(b)
GENERAL ELECTRIC COMPANY
COMMON STOCK AND/OR WARRANTS TO PURCHASE COMMON STOCK
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
November 26, 2003
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 shares of the Company's common stock, par value
$.06 per share ("Common Stock"), in the Company's Certificate of Incorporation,
as amended, and By-laws, as amended, (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 Common Stock subject to the warrants ("Warrant Common Stock"),
pursuant to the Company's
Certificate of Incorporation, as amended, and By-laws, as amended. 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 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 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"). 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 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;
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(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 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.
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 number of shares of Common Stock set forth opposite their names in Schedule
I thereto, less their respective number of shares of the Contract Common Stock
(as hereinafter defined), if any, determined as provided below, and/or (ii)
Warrants to purchase the number of shares of Warrant Common Stock 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. Common Stock and, if applicable, Warrants to be purchased pursuant to
delayed delivery contracts are hereinafter referred to as "Contract Common
Stock" and "Contract Warrants", respectively, and collectively as the "Contract
Securities".
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
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are to be with institutional investors approved by the Company and described in
the Prospectus. The aggregate number of shares of Contract Common Stock and the
aggregate number of shares of Warrant Common Stock 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 Common Stock, the deduction for the
Contract Common Stock 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 number of shares of
Contract Common Stock as the number of shares of Common Stock set forth opposite
the name of the respective Underwriter bears to the aggregate number of shares
of Common Stock 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 Warrant Common Stock, 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 number of shares of Warrant Common Stock for which Contract Warrants are
exercisable as the number of shares of Warrant Common Stock for which Warrants
are exercisable set forth opposite the name of the respective Underwriter bears
to the aggregate number of shares of Warrant Common Stock for which Warrants are
exercisable 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
number of shares 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 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.
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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 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.
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(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 the 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 any warrant agent and its 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 and
the Prospectus and any amendments or supplements thereto and (v) 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq., corporate counsel and chief corporate and securities counsel,
respectively, or such other person named in the Underwriting Agreement relating
to the Designated Securities, substantially to the effect set forth in Exhibit B
hereto.
(c) At Closing Time, the Representative shall have received the
opinion, dated such date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company,
relating to the Designated Securities, substantially to the effect set forth in
Exhibit C hereto.
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(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 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,
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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 net proceeds from the offering (before deducting expenses) received by
the Company bear to the
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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 1933 Act) 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 Representative 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 its effect on the financial markets of the United
States, in the reasonable judgment of a majority in interest of the
Representative, 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 of Defaulted Securities does not exceed 10%
of the number 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 of Defaulted Securities exceeds 10% of the
number 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; attention [▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, 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
are for convenience only and shall not affect the construction hereof.
11
Exhibit A
GENERAL ELECTRIC COMPANY
("COMPANY")
COMMON STOCK AND/OR WARRANTS
TO PURCHASE COMMON STOCK
UNDERWRITING AGREEMENT
, 20
General Electric Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 (Common Stock and/or Warrants) dated as of November 26, 2003
("Standard Provisions"), which is attached hereto, the following securities
("Designated Securities") on the following terms:
I. COMMON STOCK, $.06 PAR VALUE
A. Number of Shares:
B. Initial Public Offering Price Per Share: $
C. Purchase Price Per Share by Underwriters: $
D. Exchanges on Which Listed
E. Overseas Paying Agents:
F. Dealer Concession:
G. Reallowance Concession:
H. Overallotment Option [include only if applicable]:
A-1
I. Delayed Delivery Contracts [include only if
applicable]:
1. Delivery Date:
2. Minimum number of shares for each
contract:
3. Maximum aggregate number
of shares for all contracts:
4. Fee: $
J. Information Furnished by or on Behalf of
the Underwriters for Use in the Prospectus:
▇. Address(es) of Representative(s):
A-2
II. COMMON STOCK WARRANTS
(include only if applicable)
A. Warrant Agreement:
B. Number of Common Stock Warrants to be issued:
C. Common Stock Warrant Agreement:
D. Form of Common Stock Warrants: Registered
E. Issuable jointly with Common Stock: [Yes] [No]
1. [Number of Common Stock Warrants issued
with each share of Common Stock:]
2. [Detachable Date:]
F. Date from which Common Stock Warrants are
exercisable:
G. Date on which Common Stock Warrants expire:
H. Exercise price of Common Stock Warrants:
I. Purchase Price $
J. Number of shares of Warrant Common
Stock purchasable upon exercise of one
Common Stock Warrant:
▇. ▇▇▇▇▇▇▇▇▇ Number of Shares:
L. Initial Public Offering Price Per Share: $
M. Purchase Price by Underwriters:
N. Overseas Paying Agents:
O. Dealer Concession:
P. Reallowance Concession:
Q. Method of Payment:
▇. ▇▇▇▇▇▇▇ Delivery Contracts [include only if
applicable]:
A-3
1. Delivery Date:
2. Minimum number of shares for each
contract:
3. Maximum aggregate number of shares
for all contracts:
4. Fee: $
S. Information Furnished by or on Behalf of
the Underwriters for Use in the Prospectus:
T. Address(es) of Representative(s):
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 number of shares of Common Stock and, if any, number of
Common Stock Warrants to be purchased by each of the Underwriters are set forth
opposite their names in Schedule I hereto.
The provisions of the Standard Provisions are incorporated herein by
reference.
The Closing will take place at A.M., New York City time, on , 20 , at
the offices of [▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇].
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
COMMON STOCK
UNDERWRITER NUMBER OF SHARES
COMMON STOCK WARRANTS
UNDERWRITER NUMBER OF COMMON STOCK
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 Common Stock] The Common Stock has been duly authorized by
the Company. The Common Stock, when issued and delivered by the Company pursuant
to the Underwriting Agreement, 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.
(iii) [For Warrants] The Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company.
(iv) [For Warrants] The Warrants, if any, have been duly authorized,
executed and delivered by the Company.
(v) [For Warrant Common Stock] The Warrant Common Stock, if any, has
been duly authorized.
(vi) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company.
(viii) 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 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
B-1
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 Common Stock" and, if applicable,
"Description of Warrants" and in the prospectus supplement under any similar
heading relating to the Designated Securities 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) the statements contained in the Prospectus under the
caption "Description of Common Stock" and, if applicable, "Description of
Warrants" and in the prospectus supplement under any similar heading relating to
the Designated Securities 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) If the Designated Securities are Common Stock and assuming the
Common Stock has been duly authorized by the Company, the Common Stock, when
issued and delivered by the Company pursuant to the Underwriting Agreement, 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;
(ii) 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);
(iiii) 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);
(iv) If the Designated Securities are Warrant Common Stock and assuming
the Warrant Common Stock has been duly authorized by the Company, the Warrant
Common Stock, when delivered upon exercise of the Warrants as provided in the
Warrant Agreement, 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 Warrant Common Stock will be subject to
personal liability by reason of being such a holder. The form of certificate
used to evidence the Warrant 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) 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
C-1
(vi) The statements in the Prospectus under the heading "Description of
Common Stock" and under any similar heading in the prospectus supplement
relating to the Designated Securities, insofar as such statements purport to
summarize certain provisions of the Designated Securities, are accurate in all
material respects.
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"), _____________ of the Company's
[Common Stock/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
____ per [share/Warrant], 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 number of
shares 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
number of shares equal to the aggregate number of shares 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 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
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
D-1
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
