EXHIBIT 1.1
Electronic Data Systems Corporation
28,000,000 FELINE PRIDES/1/
(Initially consisting of 28,000,000 Income PRIDES)
Purchase Agreement
New York, New York
June 20, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Credit Suisse First Boston Corporation
As Representatives of the several Underwriters,
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Electronic Data Systems Corporation, a corporation organized under the
laws of Delaware (the "Company"), proposes to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 28,000,000 FELINE PRIDES
("FELINE PRIDES") of the Company (such 28,000,000 FELINE PRIDES being referred
to herein as the "Initial Securities"). The FELINE PRIDES will initially consist
of 28,000,000 units (referred to as "Income PRIDES") with a stated amount, per
Income PRIDES, of $50 (the "Stated Amount"). Each Income PRIDES will initially
consist of (a) a stock purchase contract (a "Purchase Contract") under which (i)
the holder will agree to purchase from the Company on August 17, 2004 (the
"Purchase Contract Settlement Date"), for an amount of cash equal to the Stated
Amount, a fraction of a newly issued share of common stock, $.01 par value
("Common Stock"), of the Company equal to the Settlement Rate (as defined in the
Purchase Contract Agreement referred to below) and (ii) the Company will pay to
the holder contract adjustment payments and (b) $50 principal amount of the
Company's senior notes due August 17, 2006 (a "Note") issued pursuant to the
Indenture (as defined below).
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/1/ Plus an option to purchase from the Company up to 4,200,000 additional
FELINE PRIDES to cover over-allotments.
The Company also proposes to grant to the several Underwriters an
option to purchase up to an additional 4,200,000 Income PRIDES to cover over-
allotments (the "Option Securities"; the Option Securities, together with the
Initial Securities, being hereinafter called the "Securities"). The Notes that
will initially constitute a component of the Income PRIDES are hereinafter
sometimes referred to as the "Underlying Notes". In accordance with the terms of
the Purchase Contract Agreement, to be dated as of June 26, 2001 (the "Purchase
Contract Agreement"), between the Company and The Chase Manhattan Bank, as
purchase contract agent (the "Purchase Contract Agent"), the Underlying Notes
will be pledged by the Purchase Contract Agent, on behalf of the holders of the
Income PRIDES, to First Union Trust Company, National Association, as collateral
agent (the "Collateral Agent"), pursuant to the Pledge Agreement, to be dated as
of June 26, 2001 (the "Pledge Agreement"), among the Company, the Purchase
Contract Agent and the Collateral Agent, to secure the holders' obligations to
purchase Common Stock under the Purchase Contracts. The shares of Common Stock
issuable pursuant to the Purchase Contracts are hereinafter called the "Shares".
The Notes will be issued pursuant to the Indenture, dated as of August
12, 1996 (the "Base Indenture"), between the Company and The Chase Manhattan
Bank (formerly Chase Bank of Texas National, Association and Texas Commerce
Bank, National Association), as trustee (the "Trustee"), as amended and
supplemented by the Second Supplemental Indenture to be dated as of June 26,
2001 (the "Second Supplemental Indenture"), between the Company and the Trustee
(the Base Indenture, as supplemented and amended by the Second Supplemental
Indenture, being referred to as the "Indenture").
Pursuant to a Remarketing Agreement (the "Remarketing Agreement") to
be dated as of June 26, 2001, between the Company, the Purchase Contract Agent
and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, the Notes may be
remarketed, subject to certain terms and conditions.
As used in this Agreement, the term "Operative Documents" means this
Agreement, the Purchase Contract Agreement (including the Purchase Contracts),
the Pledge Agreement, the Remarketing Agreement, the Notes, the Indenture and
the Income PRIDES.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration Statement No. 333-62442)
for the registration of certain securities, including the Securities, the
Underlying Notes and the Shares, under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses,
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Such registration statement, in the
form in which it became effective, including the exhibits and schedules thereto,
if any, is referred to herein as the "Registration Statement"; and the final
prospectus and the final prospectus supplement relating to the offering of the
Securities, in the form first furnished to the Underwriters by the Company for
use in connection with the offering of the Securities, are collectively referred
to herein as the "Final Prospectus", provided, however, that all references to
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the "Registration Statement" and the "Final Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution and
delivery of this Agreement; and provided, further, that if the Company files a
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registration statement with the Commission pursuant to Section 462(b) of the
1933 Act Regulations (the "Rule 462(b) Registration Statement"), then after such
filing, all references to "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. A "preliminary prospectus" shall
be deemed to refer to any prospectus used before the Registration Statement
became effective and any prospectus that omitted information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) of the 1933 Act Regulations and was used after such effectiveness but
prior to the execution and delivery of this Agreement.
All references in this Agreement to financial statements and schedules
and other information that is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Final Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that is incorporated by
reference in the Registration Statement, any preliminary prospectus or the Final
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Final Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act that is incorporated by reference in
the Registration Statement, such preliminary prospectus or the Final Prospectus,
as the case may be.
It is understood that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Final Prospectus.
SECTION 1. Representations and Warranties by the Company. The Company
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represents and warrants to, and agrees with, each Underwriter as of the date
hereof, as of the Closing Time and as of each Date of Delivery (if any) referred
to below, as follows:
(a) The Company meets the requirements for the use of Form S-3
under the 1933 Act. The Registration Statement (including any Rule 462(b)
Registration Statement) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. In addition, the Indenture has been duly qualified under the
1939 Act.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Final Prospectus nor any amendments or
supplements thereto, at the time the Final
Prospectus or any such amendment or supplement was issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will 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. The representations and warranties in this
subsection shall not apply to (i) statements in or omissions from the
Registration Statement or Final Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or Final Prospectus or (ii) that part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the 1939 Act of the Trustee.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Final Prospectus delivered to the
Underwriters for use in connection with the offering of the Securities
will, at the time of such delivery, be identical in all material respects
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Final Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Final Prospectus, at the time the Registration Statement became effective,
at the time the Final Prospectus was issued and at the Closing Time (and if
any Option Securities are purchased, at the Date of Delivery), did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"), from that set forth in the Final Prospectus
(exclusive of any amendments or supplements thereto) subsequent to the date
of this Agreement.
(d) The Company and each "significant subsidiary" of the
Company, as such term is defined in Rule 1-02 of Regulation S-X promulgated
under the 1933 Act (each, a "Significant Subsidiary"), have been duly
incorporated or organized, are validly existing as corporations or limited
liability companies, as the case may be, in good standing under the laws of
the jurisdictions of their incorporation or organization, have the
corporate or limited liability company power and authority to own their
respective properties and to conduct their respective businesses as
currently conducted and are duly qualified to transact business and are in
good standing in each jurisdiction in which the
conduct of their respective businesses or their ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a Material Adverse
Effect.
(e) The Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the Final
Prospectus; the outstanding shares of capital stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
outstanding shares of capital stock or other interests of the Significant
Subsidiaries held by the Company, directly or indirectly through other
subsidiaries, have been duly and validly authorized and issued and, if
applicable, are fully paid and non-assessable, and are owned of record by
the Company or a subsidiary free and clear of any security interest, claim,
lien or encumbrance.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Remarketing Agreement has been duly authorized by the
Company and when executed and delivered by the Company will constitute the
valid and binding obligation of the Company enforceable in accordance with
its terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity) and except as rights to indemnification, contribution or
exculpation thereunder may not be enforceable, and will conform in all
material respects to the description thereof in the Final Prospectus.
(h) Each of the Purchase Contract Agreement, the Pledge
Agreement, the Notes and the Indenture has been duly authorized and when
executed and delivered by the Company (in the case of the Notes, in
accordance with the Indenture) will constitute the valid and binding
obligation of the Company enforceable in accordance with its terms, except
to the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity), and will
conform in all material respects to the description thereof in the Final
Prospectus. The Notes will be entitled to the benefits of the Indenture.
(i) The Income PRIDES have been duly authorized and when
executed and delivered by the Company will constitute the valid and binding
obligations of the Company enforceable in accordance with their terms,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity),
and will
conform in all material respects to the description thereof in the Final
Prospectus. The Income PRIDES and the Shares have been duly registered
under the 1934 Act and have been authorized for listing on the New York
Stock Exchange, subject to official notice of issuance; and the issuance of
the Income PRIDES is not subject to preemptive or other similar rights.
(j) The Shares issuable pursuant to the Purchase Contract
Agreement have been duly authorized and reserved for issuance by the
Company and, when issued and delivered in accordance with the provisions of
the Purchase Contract Agreement, will be validly issued and fully paid and
non-assessable; and the issuance of such Shares is not and will not be
subject to preemptive or other similar rights.
(k) None of the Company and the subsidiaries is or, after giving
effect to the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus, will be an
"investment company" as defined in the Investment Company Act of 1940, as
amended.
(l) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with the
transactions contemplated herein or in the other Operative Documents,
except such as have been obtained under the 1933 Act, the 1939 Act or
otherwise and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Final Prospectus.
(m) None of the issuance and sale of the Securities pursuant
hereto, the issuance and sale of the Shares pursuant to the Purchase
Contracts and the execution and delivery by the Company of, and performance
by the Company of its obligations under, the Operative Documents and the
use of proceeds in accordance with the "Use of Proceeds" section in the
Final Prospectus, will conflict with, result in a breach or violation of or
constitute a default under (i) the charter or by-laws (or other similar
documents) of the Company or any subsidiary, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or any subsidiary is a party or is bound or to which
their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any subsidiary of
any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
subsidiary or any of their properties, except in the cases of clauses (ii)
and (iii) above for any such conflict, breach, violation or default that
would not reasonably be expected to have a Material Adverse Effect.
(n) Except for United States Trust Company, as trustee for the
GM Hourly Employees Pension Plan, no holders of securities of the Company
have rights to the registration of such securities under the Registration
Statement.
(o) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any Securities (except as
contemplated by this Agreement).
(p) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Final Prospectus and are not so described (or a description of which is
not incorporated therein by reference) or of any contract or other document
that is required to be described in the Registration Statement or the Final
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(q) Except as set forth in the Final Prospectus (exclusive of
any supplement thereto), neither the Company nor any subsidiary is in
violation or default of (i) any provision of its charter or bylaws (or
other similar document), (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except in the cases of clauses (ii) and (iii)
above for any such violation or default that would not result in a Material
Adverse Effect.
(r) KPMG LLP, who have certified certain financial statements of
the Company and its consolidated subsidiaries and delivered their report
with respect to the audited consolidated financial statements incorporated
by reference in the Final Prospectus, are independent public accountants
with respect to the Company within the meaning of the 1933 Act and the 1933
Act Regulations.
(s) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary to
carry on the business now operated by them, and neither the Company nor any
of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per Security set forth in Schedule
II, the number of Initial Securities set forth in Schedule I opposite the
name of such Underwriter, plus any purchase pursuant to the provisions of
Section 7 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms
and conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
4,200,000 FELINE PRIDES at the price per Security set forth in Schedule II.
The option hereby granted will expire 30 days after the date hereof and may
be exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the
Representatives to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall
be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased
which the number of Initial Securities set forth in Schedule I opposite the
name of such Underwriter bears to the total number of Initial Securities,
subject in each case to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of fractional
securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Company,
at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section
7), or such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price
for, and delivery of certificates for, such Option Securities shall be made
at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company, on each Date of Delivery as
specified in the notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representatives,
for its account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Initial Securities and the Option Securities,
if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and
not as representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Initial Securities or the
Option Securities, if any, to be purchased by an Underwriter whose funds
have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such
denominations and registered in such names as the Representatives may
request in writing at least one full business day before the Closing Time
or the relevant Date of Delivery, as the case may be. The certificates for
the Initial Securities and the Option Securities, if any, will be made
available for examination and packaging by the Representative(s) in The
City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case
may be.
SECTION 3. Agreements. The Company agrees with the several
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Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement to remain effective, and any amendment thereof if
not effective at the date hereof, to become effective. Prior to the
termination of the offering of the Securities, the Company will not file
any amendment to the Registration Statement or the Final Prospectus or any
amendment or supplement thereto or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment, supplement or document to
which you reasonably object. Subject to the foregoing sentence, if filing
of the Final Prospectus is required under Rule 424(b), the Company will
cause the Final Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (1) when the Registration Statement
shall have become effective, (2) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have been
filed with the Commission, (3) when, prior to termination of the offering
of the Securities, any amendment to the Registration Statement shall have
been filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (5) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the 1933 Act, any event occurs as a
result of which the Final Prospectus as then supplemented would include 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, or if it shall be necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the 1933 Act or 1933 Act Regulations, the Company promptly will
(1) notify the Representatives of any such event, (2) prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this
Section 3, an amendment or supplement that will correct such statement or
omission or effect such compliance; and (3) supply any supplemented Final
Prospectus to you in such quantities as you may reasonably request.
(c) The Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of
the Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act as soon as
practicable but in no event later than 45 days after the end of the 12-
month period (or 90 days after the end of the 12-month period if such
period is a fiscal year) commencing on the first day of the fiscal quarter
of the Company commencing after the effective date of the Registration
Statement, which statement shall cover said 12-month period.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the 1933 Act, as
many copies of each preliminary prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) During the period of ninety (90) days from the date of this
Agreement, the Company will, without the prior written consent of ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.,
(A) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option for the
sale of, or otherwise transfer or dispose of any Securities, Purchase
Contracts, Common Stock or any security of the Company similar to
Securities, Purchase Contracts or Common Stock or any security convertible
into or exercisable or exchangeable for or repayable with Securities,
Purchase Contracts, Common Stock or any equity securities substantially
similar to the Securities, Purchase Contracts or Common Stock; or (B)
directly or indirectly, enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, the economic equivalent of
ownership of the Securities, Purchase Contracts or Common Stock, any
security convertible into or exercisable or exchangeable for or repayable
with the Securities, Purchase Contracts, Common Stock or equity securities
substantially similar to the Securities, Purchase Contracts or Common Stock
whether any such swap or transaction is to be settled by delivery of
Securities, Purchase Contracts, Common Stock or other securities, in case
or otherwise. The foregoing sentence shall not affect the ability of the
Company to take any action (i) in connection with any employee or director
benefit, dividend reinvestment and stock option or stock purchase plans or
shareholder investment plans of the Company or its subsidiaries; (ii) in
connection with the offering of the Securities issued pursuant to this
Agreement; (iii) in connection with any securities issued pursuant to or
sold in connection with any securities of the Company or its subsidiaries,
outstanding as of the date hereof, that are convertible into or exercisable
or exchangeable for or repayable with any securities of the Company and its
subsidiaries; (iv) in connection with the Growth PRIDES or Income PRIDES to
be created or recreated upon substitution of Pledged Securities, or shares
of Common Stock issuable upon early settlement of the Income PRIDES or
Growth PRIDES; (v) upon exercise of stock options or (vi) comply with
contractual obligations to issue Common Stock as consideration in
connection with acquisitions by the Company or its subsidiaries announced
prior to the date hereof.
(g) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each preliminary prospectus,
the Final Prospectus and each amendment or supplement to any of them; (ii)
the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each preliminary prospectus, the Final Prospectus,
and all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (v) the
registration of the Securities under the 1934 Act and the listing of the
Securities on the New York Stock Exchange; (vi) any registration or
qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters (up to a
maximum of $5,000) relating to such registration and qualification); (vii)
any filings required to be made with the National Association of Securities
Dealers, Inc. (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such filings (up to a maximum
of $5,000); (viii) the transportation and other expenses incurred by
Company representatives in connection with presentations to prospective
purchasers of the Securities (but not including the transportation and
other expenses of the Representatives); (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; (x) the cost of printing the
Indenture and certificates representing the Notes, (xi) the cost and
charges of the Trustee, the Purchase Contract Agent, the Collateral Agent
and any other fiduciary agents; (xii) any fees payable to rating agencies
in connection with the rating of the Securities and (xiii) all other costs
and expenses incident to the performance by the Company of its obligations
hereunder.
(i) The Company will use its reasonable best efforts to effect
the listing of the Income PRIDES and the Shares on the New York Stock
Exchange.
(j) The Company will reserve and keep available at all times,
free of preemptive or other similar rights and liens and adverse claims,
sufficient shares of Common Stock to satisfy its obligations to issue
Shares upon settlement of the Purchase Contracts.
SECTION 4. Conditions to the Obligations of the Underwriters. The
------------------------------------------------------------
obligations of the Underwriters to purchase the Initial Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the date hereof, the Closing Date and any Date of Delivery pursuant to Section 2
hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) Subsequent to the date hereof, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇) or any notice given of any
intended or potential decrease in any such rating or of a possible change
in any such rating that does not indicate the direction of the possible
change.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇
L.L.P., counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the Underwriters, to
the effect that:
(i) this Agreement has been duly authorized, executed
and delivered by the Company;
(ii) Each of the Purchase Contract Agreement, the
Remarketing Agreement, the Pledge Agreement and the Indenture has
been duly authorized, executed and delivered by the Company, and
constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms;
(iii) The Income PRIDES have been duly authorized by the
Company and, when duly authenticated in accordance with the terms
of the Purchase Contract Agreement and delivered to and paid for
by the Underwriters in accordance with the terms of this
Agreement and assuming the certificates evidencing the Income
PRIDES have been duly executed by the Purchase Contract Agent as
attorney-in-fact of the holders thereof, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms and will be entitled to
the benefits of the Purchase Contract Agreement;
(iv) The Notes have been duly authorized by the Company
for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and authenticated in accordance with
the terms of the Indenture and delivered against payment of the
Income PRIDES of which they are a part in accordance with the
terms of this Agreement and the Indenture, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms and will be entitled to
the benefits of the Indenture;
(v) The Shares initially subject to the Purchase
Contract Agreement have been duly authorized and reserved for
issuance by the Company and, when issued by the Company in
accordance with the provisions of the Purchase Contract Agreement
and the Purchase Contracts, will be validly issued, fully paid
and non-assessable; and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities pursuant to the
Company's Certificate of Incorporation or the General Corporation
Law of the State of Delaware;
(vi) The certificates for the Income PRIDES are in the
respective forms contemplated by the Purchase Contract Agreement,
the certificates for the Notes are in the forms contemplated by
the Indenture and the certificates for the Shares comply with all
applicable requirements of the General Corporation Law of the
State of Delaware and the applicable requirements of the New York
Stock Exchange;
(vii) The Indenture has been qualified under the 1939
Act;
(viii) The statements included in the Final Prospectus
under the captions "Description of the FELINE PRIDES",
"Description of the Purchase Contracts", "Certain Provisions of
the Purchase Contract
Agreement and the Pledge Agreement", "Description of the Notes",
"Description of Debt Securities" and "Description of Capital
Stock", to the extent that they purport to summarize provisions
of the Purchase Contract Agreement, the Remarketing Agreement,
the Pledge Agreement, the Indenture, the Notes, the Income PRIDES
and the Company's charter and by-laws or legal matters, fairly
summarize, in all material respects, such provisions or matters;
(ix) To the extent that the statements in the Final
Prospectus under the caption "Certain Federal Income Tax
Consequences" purport to describe specific provisions of the
Internal revenue Code or legal matters, such statements fairly
present, in all material respects, and accurate summary of such
provisions or matters;
(x) Upon the occurrence of a Termination Event (as
defined in the Purchase Contract Agreement), Section 365(e)(1) of
the Bankruptcy Code (11 U.S.C. ▇▇.▇▇. 101-1330, as amended)
should not substantively limit the provisions of Sections 3.15
and 5.9 of the Purchase Contract Agreement and Section 4.3 of the
Pledge Agreement that require termination of the Purchase
Contracts and release of the Collateral Agent's security interest
in the Notes; provided, however, that procedural restrictions
respecting relief from the automatic stay under Section 362 of
the Code may affect the timing of the exercise of such rights and
remedies;
(xi) The Registration Statement has become effective
under the 1933 Act; any required filing of the Final Prospectus
and any Preliminary Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) have been made in the manner and
within the time period required by Rule 424(b); to the knowledge
of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened and the
Registration Statement and the Final Prospectus (other than (A)
the financial statements (including the notes thereto and the
auditors' reports thereon) included therein, (B) the other
financial data contained therein and (C) that part of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) of the Trustee, as to which such counsel
need express no opinion) appear on their face to comply as to
form in all material respects with the applicable requirements of
the 1933 Act and 1933 Act Regulations;
(xii) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will not
be, an "investment company" required to be registered under the
Investment Company Act of 1940, as amended; and
(xiii) no consent, approval, authorization, filing with
or order of any court or governmental agency or body is required
to be made or obtained by the Company pursuant to the General
Corporation Law of the State of Delaware or the laws, rules or
regulations of the State of New York or of the United States of
America in connection with the transactions contemplated herein
and in the other Operative Documents, except such as have been
made as obtained under the 1933 Act, the 1934 Act, the 1939 Act
or otherwise and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters (about which
such counsel need express no opinion) and such other approvals
(specified in such opinion) as have been obtained.
The foregoing opinions as to enforceability and the legal, valid and
binding nature of obligations may be subject to (i) the effect of any
bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws
affecting the rights and remedies of creditors generally (including, without
limitation, the effect of statutory or other laws regarding fraudulent transfers
or preferential transfers), (ii) general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance, injunctive relief or
other equitable remedies regardless of whether enforceability is considered in a
proceeding in equity or at law and (iii) solely with respect to the opinion as
to enforceability of the Remarketing Agreement, except as indemnification or
contribution obligations may be limited under applicable laws.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware or the State of New York or the Federal
laws of the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel reasonably satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) unless other
indicated include any supplements thereto at the Closing Date.
Furthermore, following the opinion paragraphs, such counsel shall
state the following:
"We have participated in conferences with officers and other
representatives of the Company, representatives of the independent
public accountants of the Company and your representatives at which
the contents of the Registration Statement and the Final Prospectus
and related matters were discussed. Although we did not independently
verify, are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Final Prospectus
(except to the extent stated in
paragraphs (viii) and (ix) above), we advise you that, on the basis of
the foregoing (relying as to materiality as to matters of fact in part
upon officers and other representatives of the Company), no facts have
come to our attention which lead us to believe that the Registration
Statement (other than (A) the financial statements (including the
notes thereto and the auditors' reports thereon) included therein, (B)
the other financial data contained therein and (C) that part of the
Registration Statement that constitutes the Statement of Eligibility
(Form T-1) of the Trustee, as to which we have not been asked to
comment), at the time it became effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus (other than (A)
the financial statements (including the notes thereto and the
auditors' reports thereon) included therein and (B) the other
financial data contained therein, as to which we have not been asked
to comment), as of the issue date and at the Closing Time, contained
or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading."
(c) The Company shall have furnished to the Representatives the
opinion of D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq., general counsel of the Company,
dated the Closing Date and addressed to the Underwriters, to the effect
that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction in which it is incorporated, with full
corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as
described in the Final Prospectus and to enter into and perform
its obligations under, and as contemplated under, the Operative
Documents to which it is a party, and is duly qualified to do
business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification,
except where the failure to be so qualified or in good standing
would not have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and nonassessable;
(iii) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Final Prospectus;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries or its or their
property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no contract or other document of a
character required to be described in the Registration Statement
or Final Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required;
(v) none of the issuance and sale of the Securities
pursuant hereto, the issuance and sale of the Shares pursuant to
the Purchase Contracts and the execution and delivery by the
Company of, and the performance by the Company of its obligations
under, the Operative Documents will conflict with, result in a
breach or violation of or constitute a default under, (i) the
charter or by-laws of the Company, (ii) to the knowledge of such
counsel, the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the
Company or its subsidiaries is a party or bound or to which its
or their property is subject, or (iii) to the knowledge of such
counsel, any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the
Company or its subsidiaries or any of its or their properties,
except in the cases of clauses (ii) and (iii) above, such
conflict, breach, violation or default which would not have a
Material Adverse Effect; and
(vi) to the knowledge of such counsel, except for
United States Trust Company, as trustee for the GM Hourly
Employees Pension Plan, no holders of securities of the Company
have rights to the registration of such securities under the
Registration Statement that have not been waived with respect to
the offering of the Securities.
Furthermore, following the opinion paragraphs, such counsel shall
state the following:
In addition, I and members of my legal staff have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and you at
which the contents of the Registration Statement and the Final Prospectus, the
documents incorporated by reference in the Registration Statement and related
matters were discussed. Although I am not passing upon and do not assume any
responsibility for the accuracy, completeness of fairness of the statements
contained in the Registration Statement or the Final Prospectus and have made no
independent check or verification thereof other than as specified in this
opinion, on the basis of the foregoing, (A) I am of the opinion the each
document, if any, filed pursuant to the 1934 Act and incorporated by reference
in the Final Prospectus (except for financial statements and schedules and other
financial information included therein as to which I express no opinion)
complied when so filed as to form in all material respect with the 1934 Act and
the applicable rules and regulations of the Commission thereunder, (B) I have
not become aware of any fact that leads me to believe that (except for financial
statements and schedules and other financial information included therein as to
which I express no belief and except for that part of the Registration Statement
that constitutes the Form T-1) each part of the Registration Statement
(including documents incorporated therein by reference), when such part became
effective, contained and, as of the date hereof, contains any 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, (C) I am of
the opinion that the Registration Statement and the Final Prospectus (except for
financial statements and schedules and other financial information included
therein as to which I express no opinion) comply as to form in all material
respects with the 1933 Act and the applicable rules and regulations of the
Commission thereunder and (D) I have not become aware of any fact that leads me
to believe that (except for financial statements and schedules and other
financial information included therein as to which I express no belief) the
Final Prospectus as of its date and as of the date hereof contains any 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.
(d) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the Final
Prospectus (together with any supplement thereto), the Operative Documents
and other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received from counsel for The
Chase Manhattan Bank, as Purchase Contract Agent, such opinion or opinions,
dated the Closing Date and addressed to the Representatives to the effect
that:
(i) The Chase Manhattan Bank is duly incorporated and
is validly existing as a banking corporation with trust powers
under the laws of the United States with all necessary power and
authority to execute, deliver and perform its obligations under
the Purchase Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the
Purchase Contract Agent of the Purchase Contract Agreement and
the Pledge Agreement, and the authentication and delivery of the
Securities have been duly authorized by all necessary corporate
action on the part of the Purchase Contract Agent. The Purchase
Contract Agreement and the Pledge Agreement have been duly
executed and delivered by the Purchase Contract Agent, and
constitute the legal, valid and binding obligations of the
Purchase Contract Agent, enforceable against the Purchase
Contract Agent in accordance with its terms, except to the extent
that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity).
(iii) the execution, delivery and performance of the
Purchase Contract Agreement and the Pledge Agreement by the
Purchase Contract Agent does not conflict with or constitute a
breach of the charter or by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or
registration with or notice to, any New York or federal
governmental authority or agency is required for the execution,
delivery or performance by the Purchase Contract Agent of the
Purchase Contract Agreement and the Pledge Agreement.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, any Vice
President, the Treasurer or any Assistant Treasurer and the principal
financial or accounting officer of the Company, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus, there has not occurred any material adverse change,
or any development including a prospective material adverse
change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its
subsidiaries takes as a whole from that set forth in the Final
Prospectus.
(g) The Registration Statement has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of
the Commission for additional information
shall have been complied with to the reasonable satisfaction of counsel to
the Underwriters.
(h) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the date hereof and at the Closing
Date, letters, dated respectively as of the date hereof and as of the
Closing Date, in form and substance reasonably satisfactory to the
Representatives, together with signed or reproduced copies of such letters
for each of the other Underwriters 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 the Final
Prospectus.
(i) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(j) At the date of this Agreement, the Income PRIDES and the
Shares shall have been approved for listing, subject to official notice of
issuance and evidence of satisfactory distribution, on the New York Stock
Exchange, and satisfactory evidence of such actions shall have been
provided to the Representatives.
(k) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b) hereof
to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificate furnished by the Company or any subsidiary of
the Company hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Representatives shall have
received.
(i) A certificate, dated such Date of Delivery, signed
by the Chairman of the Board, any Vice President, the Treasurer
or any Assistant Treasurer and the principal financial or
accounting officer of the Company confirming that the certificate
delivered at Closing Time pursuant to Section 4(f) hereof remains
true and correct as of such Date of Delivery.
(ii) The opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 4(b)
hereof.
(iii) The opinion of D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery and otherwise to the same effect as the opinion required
by Section 4(c).
(iv) The legal opinion from counsel for the Chase
Manhattan Bank, as Purchase Contract Agent, in form and substance
satisfactory to
counsel for the Underwriters, dated such Date of Delivery and
otherwise to the same effect as the opinion required by Section
4(d).
(v) The opinion of Shearman & Sterling, counsel for
the underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
4(d) hereof.
(vi) A letter from KPMG LLP, in form and substance
satisfactory to the Representatives and dated such Date of
delivery, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 4(h)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
If any of the conditions specified in this Section 4 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
SECTION 5. Reimbursement of Underwriters' Expenses. If the sale of the
--------------------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 4 hereof is not satisfied,
because of any termination pursuant to Section 8(i) hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated on demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
SECTION 6. Indemnification and Contribution
-------------------------------------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, partners and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act from and against (i) any and all losses, claims, damages,
liabilities and reasonable expenses arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Final Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, 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, (ii) any and all losses, claims, damages, liabilities
and reasonable expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
provided that any such settlement is effected with the written consent of the
Company, and (iii) any and all expenses whatsoever, as incurred (including the
fees and disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing and defending against any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under the preceding clauses (i) or (ii); provided,
however, that this indemnity shall not apply to any such losses, claims, damages
liabilities or expenses arising out of any such untrue statement or omission or
alleged untrue statement or omission that is based upon information furnished to
the Company in writing by any Underwriter through the Representatives expressly
for use therein; and provided that the foregoing indemnity agreement with
respect to any preliminary prospectuses shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages,
liabilities or expenses purchased Securities, or any person controlling such
Underwriter, if it shall be established that a copy of the Final Prospectus (as
then amended or 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 the Securities to such person,
and if the Final Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability, and if the Company
had previously furnished copies thereof to such Underwriter in the quantities
reasonably requested by such Underwriter. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act
to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, any preliminary
prospectus, the Final Prospectus or any amendments or supplements thereto. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 8, such person
(hereinafter called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the indemnifying
party) in writing; provided, however, that the omission so to notify the
indemnifying party shall not relieve the indemnifying party of any liability
which it may have to such indemnified party except to the extent that the
indemnifying party was materially prejudiced by such failure to notify and in
any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The indemnifying party, upon
request of the indemnified 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. In any such
proceeding, 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 shall have agreed in
writing to pay such fees and expenses, (ii) the indemnifying party shall have
failed to take reasonable steps necessary to defend diligently any claim within
ten calendar day after receiving written notice from the indemnified party that
that indemnified party believes the indemnifying party has failed to take such
steps or (iii) 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 (in addition to any local counsel) for
all such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred after receipt of adequate documentation thereof.
In the case of any such separate firm for the Underwriters and such control
persons of Underwriters, such firm shall be designated in writing by the
Representatives. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding and (iii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 6 is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand 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 of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Final Prospectus, bear to the
aggregate public offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribution pursuant to this Section 6 are several in proportion to the
respective principal amounts of Securities they have purchased hereunder, and
not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 6 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 that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 6. 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 Section 6, 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
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of any payment for any of the
Securities.
SECTION 7. Default by an Underwriter. If one or more of the
------------------------------------
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, with 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 Default Securities in such amounts may be agreed upon and upon the terms
herein set forth; if, however, the Representatives 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 Securities to be purchased on such date, the non-defaulting
Underwriters shall be obligated, each severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after Closing Time, the
obligation of the Underwriters to purchase and of the Company to sell the
Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section.
SECTION 8. Termination. The Representatives may terminate this
----------------------
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited (other than in accordance with
the New York Stock Exchange Rules 80A and 80B or any similar rules of the
American Stock Exchange or the NASDAQ National Market System regarding
limitations on trading during significant market declines and extraordinary
market volatility), or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
SECTION 9. Representations and Indemnities to Survive. The respective
-----------------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its
officers and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of any Underwriter or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
SECTION 10. Notices. All communications hereunder will be in writing
-------------------
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, Attention: Equity Capital Market (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, at 4 World
Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney, Attention: [_________], ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, (Fax No.________), or, if sent to the Company, will be mailed, delivered
or telefaxed to General Counsel, (fax no: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at
Electronic Data Systems Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: General Counsel.
SECTION 11. Successors. This Agreement will inure to the benefit of
----------------------
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
SECTION 12. Applicable Law. This Agreement will be governed by and
--------------------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
SECTION 13. Counterparts. This Agreement may be signed in one or more
------------------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
SECTION 14. Headings. The section headings used herein are for
--------------------
convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ Authorized Signatory
------------------------
Authorized Signatory
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Credit Suisse First Boston Corporation
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By: /s/ Authorized Signatory
------------------------
Authorized Signatory
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: /s/ Authorized Signatory
------------------------
Authorized Signatory
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF INITIAL SECURITIES TO BE PURCHASED
Number of
Income
Underwriter PRIDES
----------- ------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.............. 13,300,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc........................................ 3,660,000
Credit Suisse First Boston Corporation.......................... 3,360,000
ABN AMRO Incorporated........................................... 280,000
CIBC World Markets Corp......................................... 280,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co............................................. 280,000
Invemed Associates, Inc......................................... 280,000
▇▇ ▇▇▇▇▇ Securities Corporation................................. 280,000
Wit SoundView Corporation....................................... 280,000
----------
TOTAL 28,000,000
==========
SCHEDULE II
ELECTRONIC DATA SYSTEMS CORPORATION
28,000,000 FELINE PRIDES
1. The offering price per Security, determined as provided in said
Section 2, shall be $50.00.
2. The purchase price per Security to be paid by the several
Underwriters shall be $48.50, being an amount equal to the offering price
set forth above less $1.50 per Security.
