Exhibit 1(a)
Aon CORPORATION
SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
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1. Introductory. Aon Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time senior debt securities,
subordinated debt securities, convertible subordinated debt securities
(collectively, "Debt Securities"), preferred stock and common stock registered
under the registration statement referred to in Section 2(a) ("Registered
Securities"). If specified in a Terms Agreement referred to in Section 3, the
Company proposes to grant to the underwriters an option to purchase up to that
amount of Registered Securities specified in such Terms Agreement (the "Option
Securities"). The Debt Securities will be issued under indentures (as they may
be amended or supplemented from time to time, the "Indentures"), more
particularly described in a Terms Agreement, between the Company and the
trustees named therein (the "Trustee(s)"), in one or more series, which series
may vary as to interest rates, maturities, redemption provisions, selling prices
and other terms, with all such terms for any particular series of the Debt
Securities being determined at the time of sale. The preferred stock will be
issued in one or more series, which series may vary as to voting rights,
dividends, optional and mandatory redemption provisions, liquidation preference
and conversion provisions and other terms, with all such terms for any
particular series or issue of the preferred stock being determined at the time
of issue. The Registered Securities will be sold pursuant to a Terms Agreement,
for resale in accordance with terms of offering determined at the time of sale.
The Registered Securities (together with the Option
Securities) involved in any such offering are hereinafter referred to as the
"Securities." The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement are hereinafter referred to as the "Representatives"; provided,
however, that if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives," as used in this Agreement (other than
in Section 2(b) and 7 and the second sentence of Section 3) shall mean the
Underwriters.
2. Representations, Warranties and Agreements of the Company.
The Company represents warrants and agrees that:
(a) A registration statement on Form S-3 with respect to the
Registered Securities and more particularly described in the Terms Agreement
relating to the Securities has (i) been
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prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and (ii) been filed with the Commission under the
Securities Act. Such registration statement has become effective under the
Securities Act. If any post-effective amendment to such registration statement
has been filed with the Commission prior to the date of the applicable Terms
Agreement, the most recent such amendment has been declared effective by the
Commission. Copies of such registration statement and any amendments thereto
have been delivered by the Company to the Representatives. As used in this
Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Preliminary Prospectus" means each prospectus included
in such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Company with the consent of the Representatives pursuant to Rule 424(a)
of the Rules and Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all information
incorporated by reference therein and, if the date of the Terms Agreement is on
or before the fifteenth business day after the Effective Date, including all
information contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations in accordance with Section 4(a)
hereof and deemed to be a part of the registration statement as of the Effective
Time pursuant to paragraph (b)of Rule 430A of the Rules and Regulations; and
"Prospectus" means such final prospectus, as first filed with the Commission
pursuant to Rule 424(b)(1) or (4) of the Rules and Regulations or, if the date
of the Terms Agreement is after the fifteenth business day after the Effective
Date, pursuant to Rule 424(b)(2) or (5), as supplemented as contemplated by
Section 3 to reflect the terms of the Securities and the terms of offering
thereof, including all documents incorporated by reference therein. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) On the Effective Date, such Registration Statement
complied in all material respects with the Securities Act, the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), if applicable, and the
applicable rules and regulations under said Acts, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
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misleading, and on the date of the applicable Terms Agreement, and at the time
of filing of the Prospectus pursuant to Rule 424(b)(1) and (4), the Registration
Statement and the Prospectus will comply in all material respects with the
Securities Act, the Trust Indenture Act, if applicable, and the applicable rules
and regulations under said Acts, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to (i) information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein; and the Indenture, if any, described in the
Term Agreement will comply in all material respects with the Trust Indenture Act
and the applicable rules and regulations thereunder.
(c) The Company and each of its Significant Subsidiaries (as
defined in Section 13) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification and in which the failure to so qualify would reasonably be
expected to have material adverse effect on the Company and its subsidiaries,
taken as a whole, and have all corporate power and authority necessary to own
their respective properties and to conduct the businesses in which they are
engaged.
(d) All of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued and are
fully paid, non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(e) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company and the
consummation of the transactions contemplated hereby and thereby and compliance
by the Company with the provisions of the Indenture, if any, described in the
Terms Agreement and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any of its subsidiaries, or any agreement or other instrument binding upon the
Company or any of its subsidiaries
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(as defined in Section 13) that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary; and
except for the registration of the Securities under the Securities Act and such
consents, approvals, authorizations, registration or qualifications as may be
required under the Trust Indenture Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and applicable state or foreign securities laws
in connection with the purchase and distribution of the securities by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required for
the execution, delivery and performance of the Terms Agreement (including the
provisions of this Agreement) and the Indenture, if any, described in the Terms
Agreement, by the Company and the consummation of the transactions contemplated
hereby and thereby.
(f) No holders of the Company's securities have registration
rights with respect thereto other than the registration rights granted pursuant
to ________________________ (collectively, the "Registration Rights Agreements")
and all such registration rights have been waived, or are not otherwise
exercisable, with respect to the Registration Statement.
(g) The Indenture, if any, described in the Terms Agreement
has been duly authorized and, when executed by the proper officers of the
Company (assuming the due execution and delivery thereof by the Trustee under
the Indenture) and delivered by the Company, will have been duly executed and
delivered by the Company and the Trustee and will constitute the valid and
legally binding obligation of the Company, enforceable in accordance with its
terms except in each case as such enforceability may be limited by applicable
bankruptcy, moratorium, insolvency, reorganization or other similar laws
affecting or limiting the enforcement of creditors' rights generally and by the
effect of general principles of equity (whether such enforceability is
considered in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing; the Debt Securities, if any, described in the Terms
Agreement have been duly authorized, and, upon payment therefor as provided
herein, will be validly issued and outstanding and will constitute the valid and
legally binding obligations of the Company, enforceable in accordance with their
terms and entitled to the benefits of the Indenture except in each case as such
enforceability may be limited by applicable bankruptcy, moratorium, insolvency,
fraudulent conveyance, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by the effect of
general
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principles of equity (whether such enforceability is considered in a proceeding
in equity or at law) or by an implied covenant of good faith and fair dealing;
if any Securities to be issued are convertible, the shares of common stock
issuable upon conversion thereof are duly and validly authorized, have been duly
reserved for issuance upon conversion of the Securities and, when issued upon
the conversion of the Securities, will be duly and validly issued, fully paid
and non-assessable; the common stock and preferred stock, if any, described in
the Terms Agreement have been duly and validly authorized and, when issued and
paid pursuant to the Terms Agreement, will be fully paid and non-assessable; no
further approval or authority of the stockholders or the Board of Directors of
the Company will be required for the issuance and sale of the Securities as
contemplated herein or the issuance of the shares of common stock upon
conversion of the Securities; and the Securities, the Indenture, if any,
described in the Terms Agreement and the capital stock of the Company will
conform to the descriptions thereof contained in the Registration Statement and
the Prospectus.
(h) Other than as set forth or contemplated in the Prospectus,
there has not occurred any material adverse change, or any development which
would be reasonably likely to result in a 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.
(i) There are no legal or governmental proceedings pending or,
to the actual knowledge of the Company, threatened, to which the Company or any
of its subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, that are required to be described in the
Registration Statement or the Prospectus and are not so described, or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required.
(j) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
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3. Purchase and Offering of the Securities by the
Underwriters. The obligation of the Underwriters to purchase the Securities will
be evidenced by an exchange of a telegram, telex or other written communications
("Terms Agreement") at each time the Company determines to sell the Securities.
Each Terms Agreement will be in the form of Annex II(A) or (B) attached hereto
and will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the amount to be purchased by
each Underwriter, the purchase price to be paid by the Underwriters and certain
terms of the Securities and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than seven full
business days thereafter as the Representatives and the Company agree as the
time for payment and delivery, being herein and in the Terms Agreement referred
to as the "Closing Date"), the place of delivery and payment and any details of
the terms of public offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as set
forth in the Prospectus. Unless otherwise provided in the Terms Agreement, the
Debt Securities, if any, delivered to the Underwriters on the Closing Date will
be in definitive fully registered form, in such denominations and registered in
such names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company grants an option to the
several Underwriters to purchase, severally and not jointly, up to the amount of
the Option Securities as shall be specified in the Terms Agreement from the
Company at the same price as the Underwriters shall pay for the Registered
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Registered Securities by the Underwriters and may be exercised in
whole or in part at any time on or before the thirtieth day after the date of
the Terms Agreement upon written or telegraphic notice by the Representatives to
the Company setting forth the amount of the Option Securities as to which the
several Underwriters are exercising the option. The amount of Option Securities
to be purchased by each Underwriter shall be the same percentage of the total
amount of the Option Securities to be purchased by the
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several Underwriters as such Underwriter is purchasing of the Registered
Securities, as adjusted by the Representatives in such manner as the
Representatives deem advisable to avoid fractional shares/units.
If the Terms Agreement provides for the sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contract") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are only to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the amount of
Securities set forth opposite each Underwriter's name in such Terms Agreement,
except to the extent that the Representatives determine that such reduction
shall be otherwise than pro rata and so advise the Company. The Company will
advise the Representatives not later than the business day prior to the Closing
Date of the amount of Contract Securities.
4. Further Agreements of the Company. The Company
agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus (i) pursuant to Rule 424(b)(1) (or,
if applicable and if consented to by the Representatives, pursuant to Rule
424(b)(4)) not later than the Commission's close of business on the earlier of
(A) the second business day following the date of the Terms Agreement or (B) the
fifteenth business day after the Effective Date, or (ii) if the date of the
Terms Agreement is after the fifteenth business day after the Effective Date,
pursuant to Rule 424(b)(2) (or, if applicable and if consented to by the
Representatives, pursuant to Rule 424(b)(5)) not later than the second business
day following the date of a Terms Agreement; to advise the
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Representatives, promptly after it receives notice thereof, of the time when the
Registration Statement, or any amendment thereto, has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a conformed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To furnish promptly to each of the Representatives copies
of the Registration Statement, including all exhibits, any Preliminary
Prospectus, the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as are reasonably
requested;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any (i) amendment to
the Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters;
(f) As soon as practicable after the date of each Terms
Agreement, but in no event later than twelve months after the later of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date of such
Terms
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Agreement and (iii) the date of the Company's most recent Annual Report on Form
10-K filed with the Commission prior to the date of such Terms Agreement, to
make generally available to its security holders an earnings statement which
will satisfy the provisions of Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158), it being intended that the Company will
satisfy the foregoing obligation by making available copies of its quarterly
reports on Form 10-Q;
(g) Promptly from time to time, to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities; provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject; and
(h) For the period specified in the Terms Agreement, to not
(A) in the event of an offering of common stock, preferred stock or convertible
debt securities, directly or indirectly, offer for sale, sell, grant any option
for the sale of, or otherwise dispose of, any securities that are of the same or
similar class as the Securities or any common stock or any security exchangeable
for, or convertible into, common stock (other than the Securities and shares
issued pursuant to (i) agreements in effect on the date of the Terms Agreement
and (ii) employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date of such Terms Agreement), without, in
any case, the prior written consent of a majority of the Representatives;
provided, however, the Company may, without such consent, offer and sell shares
of common stock of the Company in transactions exempt from the registration
requirements of the Securities Act, provided that the purchasers in such
transactions are prohibited from offering for sale, selling or otherwise
disposing of, directly or indirectly, any of the shares of common stock of the
Company so acquired by them for the remainder of the period, if any, specified
in the Terms, Agreement and, (B) in the event of an offering of Debt
Insecurities, offer for sale, sell or cause to be offered for sale or sold,
without the prior written consent of a majority of the Representatives, any debt
securities which are substantially similar to the Securities.
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5. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Securities and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereto (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any documents incorporated by reference in any of the foregoing,
all as provided in this Agreement; (d) the costs of reproducing and distributing
this Agreement; (e) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of sale of the
Securities, if necessary; (f) any applicable stock exchange listing or other
fees; (g) the fees and expenses of filings, if any, with foreign securities
administrators and of qualifying the Securities under the securities laws of the
several jurisdictions as provided in Section 4(g) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters up to a maximum of $________); (h) the fees paid to
rating agencies in connection with the rating of the Securities; (i) the costs
of printing and issuance of certificates, if any; (j) transfer agent's fees, if
any; and (k) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that except as
provided in this Section 5 and in Section 10, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Securities which they may sell and the expenses of
advertising any offering of the Securities made by the Underwriters, and the
Company shall pay the fees and expenses of its counsel and any transfer taxes
payable in connection with its sale of Securities to the Underwriters.
6. Conditions of Underwriter's Obligations. The respective
obligations of the Underwriters herewith are subject to the accuracy, when made
and at the time of delivery of any Securities pursuant to a Terms Agreement, of
the representations and warranties of the Company contained herein, to the
performance by the Company of it obligations hereunder, and to each of the
following additional terms and conditions;
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 4(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that
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purpose shall have been initiated or threatened by the Commission.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Terms Agreement,
the Indenture, if any, described in the Terms Agreement, the Securities, the
Registration Statement and the Prospectus, and all other legal matters relating
to this Agreement and the Terms Agreement and the transactions contemplated
hereby and thereby shall be satisfactory in all material respects to counsel for
the Underwriters, and the Company shall have furnished to such counsel, all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) Sidley & Austin, counsel to the Company, or other counsel
to the Company acceptable to the Representatives, shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed to
the Underwriters and dated the Closing Date, and, if Option Securities are
purchased, at any date after the Closing Date as specified in a Terms Agreement,
additional opinions from such counsel, in form and substance satisfactory to the
Representatives to the effect that:
(i) The Indenture, if any, described in the Terms Agreement
has been duly authorized, executed and delivered by the Company and
duly qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms;
(ii) The Debt Securities, if any, described in the Terms
Agreement have been duly authorized and, when duly executed and
delivered by the Company, and assuming due execution and authentication
thereof by the Trustee and upon payment and delivery in accordance with
this Agreement, the Debt Securities, other than any Contract
Securities, and any Contract Securities when duly executed,
authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to the Delayed Delivery Contracts, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture;
(iii) If any Securities to be issued are convertible into
common stock, the shares of common stock into which the Securities
initially will be convertible are duly and validly authorized, have
been duly reserved for issuance
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upon conversion of the Securities, and when duly issued upon the
conversion of the Securities will be duly and validly issued, fully
paid and non-assessable;
(iv) If the Securities to be issued are common stock or
preferred stock, the Securities, when certificates therefor have been
duly executed, countersigned and registered and delivered to and paid
for by the Underwriters in accordance with the Terms Agreement, will
constitute shares of common stock or preferred stock, as the case may
be, which have been duly authorized and validly issued, fully paid and
non assessable;
(v) The Registration Statement has become effective under the
Securities Act and, to the knowledge of such counsel, no stop order
suspending effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceeding for that purpose
has been instituted or threatened by the Commission;
(vi) The Registration Statement and the Prospectus (excluding
all documents incorporated by reference therein) and any further
amendments or supplements thereto made by the Company prior to the
Closing Date (other than the financial statements, financial data,
statistical data and supporting schedules included therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations under said Act;
(vii) The Securities, other than any Contract Securities, the
Indenture and the capital stock of the Company, and any Contract
Securities, when issued, delivered and sold, will conform in all
material respects to the description thereof included in the
Registration Statement;
(viii) The Terms Agreement (including the terms of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(ix) Except for the registration of the Securities under the
Securities Act and such consents, approvals, authorizations,
registration or qualifications as may be required under the Trust
Indenture Act or the Exchange Act, and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required
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for the execution, delivery and performance of the Terms Agreement
(including the provisions of this Agreement) and the Indenture, if any,
described in the Terms Agreement, by the Company and the consummation
of the transactions contemplated hereby and thereby.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company and the Representatives at which the contents of the
Registration Statement and Prospectus and related matters were
discussed, and although such counsel is not passing upon and does not
assume any responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement and Prospectus, and has relied as to materiality, to a large
extent, upon the judgment of officers and representatives of the
Company, on the basis of the foregoing, nothing has come to the
attention of such counsel which causes them to believe that the
Registration Statement, as of the Effective Time, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of such
opinion, contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading (except that, in each case, such counsel
need express no comment with respect to the financial statements,
financial data, statistical data and supporting schedules included in
the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (1) state that their
opinion is limited to the laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of
Delaware, (2) rely as to matters of fact upon certificate of officers
of the Company, its subsidiaries and public officers; and (3) state
that their opinions set forth in subparagraphs (i) and (ii) above are
subject to the qualification that the enforceability of the Company's
obligations under the Indenture and the Securities may be limited by
bankruptcy, moratorium, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting
creditors' rights generally and by the effect of general principles of
equity (whether such enforceability is considered in a proceeding
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in equity or at law) or by an implied covenant of good faith
and fair dealing.
(d) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice President and Chief
Counsel of the Company, shall have furnished to the Representatives his written
opinion, addressed to the Underwriters and dated the Closing Date, and, if
Option Securities are purchased, at any date after the Closing Date as specified
in the Terms Agreement, additional opinions from such counsel, in form and
substance satisfactory to the Representatives to the effect that:
(i) The Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation and have corporate power and authority necessary to own
or hold their respective properties and conduct the businesses in which
they are engaged, and are duly qualified to transact business and are
in good standing in each jurisdiction in which the conduct of business
or 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 on the Company and
its subsidiaries, taken as a whole;
(ii) All of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued
and are fully paid, non-assessable and owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(iii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any
of its subsidiaries is the subject, that are required be described in
the Registration Statement or the Prospectus and are not so described,
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required;
(iv) The Registration Statement and the Prospectus (including
all documents incorporated by reference therein) and any further
amendments or supplements thereto made by the Company prior to the
Closing Date (other than the financial statements, financial data,
statistical data and supporting schedules included therein, as to which
such
-14-
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act, the Exchange Act
and the applicable rules and regulations under said Acts;
(v) The sale of the Securities by the Company and the
compliance by the Company with all of the provisions of this Agreement,
the Terms Agreement, the Indenture, if any, described in the Terms
Agreement, any Delayed Delivery Contract and the Securities, and the
consummation of the transactions contemplated hereby and thereby will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any of its subsidiaries, or,
to the knowledge of such counsel, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to
the Company and its subsidiaries, taken as a whole, or, to the
knowledge of such counsel, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary; and except for the registration of the Securities
under the Securities Act and such consents, approvals, authorizations,
registration or qualifications as may be required under the Trust
Indenture Act or the Exchange Act, and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of the Terms Agreement (including the provisions of this
Agreement) and the Indenture, if any, described in the Terms Agreement,
by the Company and the consummation of the transactions contemplated
hereby and thereby.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company and the Representatives at which the contents of the
Registration Statement and Prospectus and related matters were
discussed, and although such counsel is not passing upon and does not
assume any responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement and Prospectus, and has relied as to materiality, to a large
extent, upon the judgment of officers and representatives of the
Company, on the basis of the foregoing, nothing has come to the
attention of such counsel which causes them to believe that
-15-
the Registration Statement, as of the Effective Time, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of such
opinion, contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading (except that, in each case, such counsel
need express no comment with respect to the financial statements,
financial data, statistical data and supporting schedules included in
the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (1) state that their
opinion is limited to the laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of
Delaware, (2) rely as to matters of fact upon certificate of officers
of the Company, its subsidiaries and public officers; and (3) state
that their opinions set forth in subparagraphs (i) and (ii) above are
subject to the qualification that the enforceability of the Company's
obligations under the Indenture and the Securities may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether such
enforceability is considered in a proceeding in equity or at law) or by
an implied covenant of good faith and fair dealing.
(e) The Company shall have furnished to the Representatives a
letter (as used in this paragraph the "bring down letter") of Ernst & Young LLP,
or such other independent accountants acceptable to the Representatives,
addressed to the Underwriters and dated the Closing Date, (i) confirming that
they are independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by its letter (the "initial letter") delivered to the
Representatives concurrently with the execution of the Terms Agreement and (iii)
confirming in all material respects the
-16-
conclusions and findings set forth in the initial letter.
(f) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, and on any later date, if any, on which
Option Securities are purchased, of an executive officer of the Company stating
that the representations, warranties and agreements of the Company in Section 2
hereof are true and correct as of such date; the Company has complied with all
its agreements contained herein; and the conditions set forth in Section 6
hereof have been fulfilled.
(g) Subsequent to the execution and delivery of the Terms
Agreement, there shall not have occurred any change, or any development which
would be reasonably likely to result in a change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and its
Significant Subsidiaries, taken as a whole, from that set forth in the
Prospectus, that, in the judgment of the Representatives, is material and
adverse and that makes it, in the judgment of the Representatives, impracticable
to market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
(h) Subsequent to the execution and delivery of the Terms
Agreement, there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, Inc. (the "NYSE"), the
American Stock Exchange or the over-the-counter market shall have been suspended
or minimum prices shall have been established on either of such exchanges or
such market by the commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed with
the delivery of the Securities.
(i) Subsequent to the execution and delivery of the Terms
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) of the
-17-
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof to which that
Underwriter or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse each Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by that Underwriter or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or in any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein; and provided further, that as to any Preliminary Prospectus or
supplement thereto this indemnity agreement shall not inure to the benefit of
any Underwriter or any person controlling that Underwriter on account of any
loss, claim, damage, liability or action arising from the sale of Securities to
any person by that Underwriter if that Underwriter failed to send or give a copy
of the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus or supplement thereto was
corrected in the Prospectus, unless such failure resulted from non-compliance by
the Company with Section 4(c). For purposes of the second proviso to the
-18-
immediately preceding sentence, the term Prospectus shall not be deemed to
include the documents incorporated by reference therein, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in a Preliminary Prospectus or supplement thereto or
the Prospectus to any person other than a person to whom such Underwriter has
delivered such incorporated documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any controlling person of
that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company), each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending preparing to defend against
any such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim
-19-
or the commencement of that action. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof; provided, however,
that the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the Company
under this Section 7 if the named parties to any such proceeding (including any
impleaded parties) include both the Company and the Representatives and if, in
the reasonable judgment of the Representatives, representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interest between them, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. It is understood that the Company shall
not, in respect of the legal expenses of the Representatives in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of claim or action effected without its written consent.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative
-20-
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Securities purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability; or action in respect thereof, referred to above in this Section
7(d) shall be deemed to include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm that the
-21-
statements with respect to the public offering of the Securities set forth on
the cover page of, and under the caption "Underwriting" in, the Prospectus and
any legends relating to stabilization and overallotment therein are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
(f) The agreements contained in this Section 7 and the
representations, warranties and agreements of the Company in Sections 2 and 4
shall survive the delivery of the Securities and shall remain in full force and
effect, regardless of any termination or cancellation of the Terms Agreement
incorporating the terms of this Agreement or any investigation made by or on
behalf of any indemnified party.
8. Defaulting Underwriters. If any Underwriter defaults in the
performance of its obligations under a Terms Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the number or principal amount of Securities set opposite the
name of each remaining non-defaulting Underwriter in Schedule A to the Terms
Agreement bears to the total number or principal amount of the Securities set
opposite the names of all the remaining non-defaulting Underwriters in Schedule
A to the Terms Agreement; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any Securities on the Closing
Date if the aggregate number or principal amount of the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number or principal amount of the Securities,
and any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the number or principal amount of Securities set forth
opposite its name on Schedule A to the Terms Agreement. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Securities. If the remaining Underwriters or
other underwriters satisfactory to the Representatives do not elect to purchase
the number or principal amount which the defaulting Underwriter or Underwriters
agreed but failed to purchase, the Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 5 and 10.
-22-
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Closing Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or any supplement thereto or in any other
document or arrangement.
9. Effective Date and Termination. The obligations of the
Underwriters under the Terms Agreement may be terminated by the Representatives
by notice given to and received by the Company prior to delivery of any payment
for the Securities if, prior to that time, the events described in any of
Section 6(g), 6(h) or 6(i) shall have occurred.
10. Reimbursement of Underwriters' Expenses. If (a) the
Company shall fail to tender the Securities for delivery to the Underwriters for
any reason permitted under this Agreement or the Terms Agreement or (b) the
Underwriters shall decline to purchase the Securities for any reason permitted
under this Agreement or the Terms Agreement (including the termination of the
Terms Agreement pursuant to Section 9 but other than the occurrence of any of
the events described in Section 6(h)), the Company shall reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been reasonably incurred by them in
connection with the Terms Agreement and the proposed purchase of the Securities,
and upon demand the Company shall pay the full amount thereof to the
Representatives. If the Terms Agreement is terminated pursuant to Section 8 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to their addresses furnished to the
Company in writing for the purpose of communications hereunder;
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention:
General Counsel;
-23-
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
shall be delivered or sent by mail, telex or facsim ile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. The Terms
Agreement (including the provisions of this Agreement) shall inure to the
benefit of and be binding upon the Underwriters and the Company and their
respective successors. The Terms Agreement (including the provisions of this
Agreement) are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of
securities from any Underwriter shall be deemed to be a successor by reason
merely of such person.
13. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on which the
NYSE is open for trading and (b) "subsidiary" and "Significant Subsidiary" each
has the meaning set forth in Rule 405 of the Rules and Regulations.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York (without giving effect to the
principles of choice of law).
15. Counterparts. The Terms Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
-24-
16. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
-25-
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on ______________, ____*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of
initial public
offering]
Aon CORPORATION
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from Aon
CORPORATION, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
------------------------------
delivery on ______________, _____ ("Delivery Date")].
[$]_________________
principal amount of the Company's [Insert title of securities] ("Securities"),
--------------------------
offered by the Company's Prospectus dated ___________,_____ and a Prospectus
Supplement dated ____________, _____, relating thereto, receipt of copies of
which is hereby acknowledged, at ___% of the principal amount thereof plus
accrued interest from _______________, ____, if any, and on the further terms
and conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
-----------------------------------------------------
The undersigned will purchase from the Company as of
____________________
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
the date hereof, for delivery on the dates set forth below,
Delivery Date Principal Amount
_____________ [$]_____________
_____________ [$]_____________
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has agreed for
delivery on-the-each-Delivery Date shall be made to the Company or its order by
[certified or official bank check in New York Clearing House (next day) funds at
the office of ________ at _______ _.M. on-the-such-Delivery Date] upon delivery
to the undersigned of the Securities to be purchased by the undersigned--for
delivery on such Delivery Date--in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to-the-such-Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on-the-such Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at-the-such-Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale of 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
-2-
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_______________________
(Name of purchaser)
By _____________________
(Title of Signatory)
_________________________
_________________________
(Address of Purchaser)
Accepted, as of the above date,
Aon CORPORATION
By_____________________________
Name:
Title:
-3-
ANNEX II (A)
Aon CORPORATION
("Company")
DEBT SECURITIES
TERMS AGREEMENT
---------------
------------, -----
Aon Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
[On behalf of the Several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement Basic
Provisions filed as exhibit on the Company's registration statement on Form S-3
(No. 333-__) ("Underwriting Agreement"), the following securities ("Securities")
to be issued under an indenture, dated __________, _____, between the Company
and as Trustee, on the following terms:
Title: [____% Floating Rate] [Senior] [Subordinated]
-----
[Notes] [Debentures] Due ____
Principal Amount: [$]
----------------
Interest: [___% per annum, from ______________, ____,
--------
payable semiannually on ____________ and commencing _______ ____,
to holders of record on the preceding _______________ or
________________, as the case may be.]
Maturity: _____________________, ____.
--------
Optional Redemption:
-------------------
Sinking Fund:
------------
Period Designated Pursuant to Section 4(h) of the Underwriting
--------------------------------------------------------------
Agreement _______ days.
---------
[Conversion Provisions]:
---------------------
[Other Terms]
Delayed Delivery contracts: [None.] [Delivery Date[s]
--------------------------
shall be ____________, _____. Underwriters' fee is __% of the
principal amount of the Contract Securities.]
Purchase Price: ___% of principal amount, plus accrued
--------------
interest [if any,] from ___________, ____.
Expected Reoffering Price: ____% of principal amount,
-------------------------
subject to change by the undersigned.
Closing Date: _____ A.M. on ___________, ____, at
------------
____________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
[Name[s] and Address[es] of Representative[s]:]
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with
------------------------
your consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [If appropriate, insert--, except that the obligations and
-----------------------
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the
above Securities].
The Securities will be made available for checking and
packaging at the office of _______________ at least 24 hours prior to the
Closing Date.
[Please signify your acceptance of our offer by signing
the enclosed response to us in the space provided and returning
it to us.]
-2-
[Please signify your acceptance of the foregoing by
return wire not later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of
themselves-itself-and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By:_______________________
Name:
Title:
-3-
SCHEDULE A
----------
Principal
Underwriter Amount
----------- ---------
-----------
Total.............................................[$]___________
-4-
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o (Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
_____________, ____, relating to [$] principal amount of our [Insert title of
---------------
Securities].
----------
Very truly yours,
Aon CORPORATION
By:_____________________
Name:
Title:
-5-
ANNEX II(B)
Aon CORPORATION
("Company")
EQUITY SECURITIES
TERMS AGREEMENT
---------------
-------------,---
Aon Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement Basic
Provisions filed as an exhibit to the Company's registration statement on Form
S-3 (No. 333- _____) ("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Title: [Common Stock] [Preferred Stock, Series _________]
-----
Number of Shares to be issued: [_____________ shares]
-----------------------------
[For Preferred Stock:
Voting Rights:
-------------
Preferred Stock Dividends: [cash dividends of $ to $ per
-------------------------
share payable quarterly in arrears on _____________, ___________,
____________ and ___________.]
Optional Redemption:
-------------------
Mandatory Redemption/Sinking Fund:
---------------------------------
Liquidation Preference: [$ per share plus ]
----------------------
Name of Exchange or Market: [New York Stock Exchange]
--------------------------
[Nasdaq National Market System] [American Stock Exchange]
Period Designated Pursuant to Section 4(h) of the
-------------------------------------------------
Underwriting Agreement: _____ days.
----------------------
[Conversion Provisions]:
---------------------
[Other Terms]
Price to Public: $___________ per share
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on _______________,______, at
------------
______________ in New York [Clearing House (next day)]
[Federal (same day)] funds.
Name of Transfer Agent and Registrar:
------------------------------------
[Name[s] and Address[es] of Representative[s]:]]
[For Common Stock:
Name of Exchange or Market: [New York Stock Exchange]
--------------------------
[Nasdaq National Market System] [American Stock Exchange]
Period Designated Pursuant to Section 4(h) of the
-------------------------------------------------
Underwriting Agreement: _____ days.
----------------------
[Other Terms]
Price to Public: $______________ per share
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: ____________ A.M. on ____________,_____, at
------------
_____________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
Name of Transfer Agent and Register:
-----------------------------------
[Name[s] and Address[es] of Representative[s]:]]
The respective shares of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
herein.
-2-
[If appropriate, insert -- It is understood that we may, with
-----------------------
your consent, amend this offer to add additional Underwriters and reduce the
number of shares to be purchased by the Underwriters listed in Schedule A hereto
by the number of shares to be purchased by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [If appropriate, insert --, except that the obligations and
-----------------------
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the
above Securities].
The Securities will be made available for checking and
packaging at the office of ________________ at least 24 hours prior to the
Closing Date.
[Please signify your acceptance of our offer by signing
the enclosed response to us in the space provided and returning
it to us.]
[Please signify your acceptance of the foregoing by
return wire not later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of-
themselves-itself-and as
Representative[s] of the Several]
[As] Underwriter[s]
[By [Name of Representative]]
By_______________________
Name:
Title:
-3-
SCHEDULE A
Number of
Underwriter Shares
----------- ---------
-----------
Total.....................................[$]
-----------
-4-
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
__________________, _____, relating to ___________ shares of our [Insert title
------------
of Securities] (the "Terms Agreement").
-------------
Very truly yours,
Aon CORPORATION
By_____________________
Name:
Title:
-5-
