Exhibit 1.1
FORM OF
MOTOROLA, INC.
(a Delaware corporation)
Debt Securities
Debt Securities Warrants
Common Stock
Common Stock Warrants
Stock Purchase Contracts
Units
UNDERWRITING AGREEMENT
----------, ----
To the Representatives of the
several Underwriters named in
the respective Terms Agreements
hereinafter described
Dear Sirs:
Motorola, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell, at up to an aggregate initial public offering price of
$2,000,000,000, or the equivalent thereof in one or more foreign currencies or
composite securities, including the euro, in one or more series, its (i)
unsecured debt securities (the "Debt Securities") which may be senior (the
"Senior Securities") or subordinated (the "Subordinated Securities"), (ii)
warrants to purchase the Debt Securities (the "Debt Securities Warrants"), (iii)
shares of its common stock, $3 par value per share (the "Common Stock"), (iv)
warrants to purchase Common Stock (the "Common Stock Warrants") and (v)
contracts to purchase Common Stock (the "Stock Purchase Contracts") in one or
more offerings on terms determined at the time of sale. The Debt Securities,
Debt Securities Warrants, Common Stock, Common Stock Warrants and Stock Purchase
Contracts may be offered separately or as a part of units consisting of one or
more such securities (the "Units"; and together with the Debt Securities, Debt
Securities Warrants, Common Stock, Common Stock Warrants and Stock Purchase
Contracts, the "Offered Securities"). The Debt Securities and the Units
containing the Debt Securities (collectively, the "Offered Debt Securities")
will be issued under one of several indentures depending upon the particular
issuance. The Senior Securities will be issued under an indenture dated as of
May 1, 1995 between the Company and Bank One Trust Company, N.A. (as successor
trustee to BNY Midwest Trust Company and ▇▇▇▇▇▇ Trust and Savings Bank), as
Trustee (the "Senior Indenture"). The Subordinated Securities will be issued
under an indenture between the Company and a trustee to be named in the Terms
Agreement (as defined below) relating to any Subordinated Securities (the
"Subordinated Indenture"). The Senior Indenture and Subordinated Indenture are
sometimes referred to as the "Indentures." The Debt Securities Warrants, Common
Stock Warrants and Units containing either of the
foregoing (collectively, the "Warrants") will be issued under one or more
warrant agreements (the "Warrant Agreements") between the Company and the
Warrant Agent identified in such Warrant Agreement. The Stock Purchase Contracts
and Units containing the foregoing (collectively, the "Offered Stock Purchase
Units") will be issued under one or more purchase contract agreements (the
"Purchase Contract Agreements") between the Company and the Purchase Contract
Agent identified in such Purchase Contract Agreement. Each issue of the Offered
Debt Securities, Warrants and Stock Purchase Contracts may vary, as applicable,
as to the aggregate principal amount, maturity date or dates, interest rate or
rates and timing of payments thereof, redemption provisions, conversion
provisions, exercise provisions and sinking fund requirements, if any, and any
other variable terms which the applicable Indenture, Warrant Agreement or
Purchase Contract Agreement, as the case may be, contemplates may be set forth
in the Offered Debt Securities, Warrants and Stock Purchase Contracts as issued
from time to time.
Whenever the Company determines to make an offering of Offered
Securities, it will enter into an agreement substantially in the form of Exhibit
A hereto (the "Terms Agreement") providing for the sale of such Offered
Securities to, and the purchase and offering thereof by, the underwriter or
underwriters named therein (the "Underwriters" or "you", which terms shall
include the underwriter or underwriters named therein whether acting alone in
the sale of the Offered Securities or as members of an underwriting syndicate).
The Terms Agreement relating to each offering of the Offered Securities shall
specify, where applicable, the principal amount of the Offered Securities to be
issued, the name or names of the Underwriters participating in such offering
(subject to substitution as provided in Section 9 hereof) and the principal
amount of the Offered Securities which each severally agrees to purchase, the
name or names of the Underwriters acting as manager or co-managers in connection
with such offerings, if any (the "Representatives", which term shall include
each Underwriter in the event that there shall be no manager or co-managers),
the price at which the Offered Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the date, time
and place of delivery and payment, the number of shares to be issued in the case
of the issuance of Common Stock or sale of Stock Purchase Contracts, and, to the
extent not otherwise specified in the applicable Indenture, Warrant Agreement or
Purchase Contract Agreement in the case of the issuance of the Offered Debt
Securities, Warrants or Stock Purchase Contracts, their terms. Each offering of
the Offered Securities will be governed by this Agreement, as supplemented by
the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon each Underwriter participating
in the offering of such Offered Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_____) relating to
(i) the Offered Securities and (ii) the Common Stock issuable upon conversion or
exercise of the Offered Securities in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "1933 Act"), and has filed such amendments thereto as
may have been required to the date hereof. Such registration statement, as
amended, has been declared effective by the Commission, and the Indentures have
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act").
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Such registration statement, as amended, and the prospectus relating to the sale
of the Offered Securities by the Company constituting a part thereof, including
all documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively; provided, however,
that a supplement of the Prospectus contemplated by Section 3(a)(ix) hereof (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the offering of Offered Securities to which such Prospectus
Supplement relates. If the Company elects to rely on Rule 434 under the rules
and regulations of the 1933 Act (the "1933 Act Regulations"), all references to
the Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriters by the Company in reliance on Rule 434 of the 1933 Act Regulations
(the "Rule 434 Prospectus"). If the Company files a registration statement to
register a portion of the Offered Securities and relies on Rule 462(b) of the
1933 Act Regulations for such registration statement to become effective upon
filing with the Commission (the "Rule 462 Registration Statement"), then any
reference to "Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (No. 333- _____) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the 1933 Act.
SECTION 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants to each Underwriter as of the date hereof and as of the date of the
applicable Terms Agreement (such latter date being hereinafter referred to as
the "Representation Date") as follows:
(i) The Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the
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. The
Registration Statement and the Prospectus, at the time the Registration
Statement became effective and as of the applicable Representation
Date, complied in all material respects with the 1933 Act and the 1933
Act Regulations. The Registration Statement, at the time the
Registration Statement became effective (or, if an amendment to the
Registration Statement or an annual report on Form 10-K has been filed
by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the most recent such
filing) did not contain 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. The Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date, did not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter, or on behalf of
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any Underwriter by the Representatives, expressly for use in the
Registration Statement or Prospectus.
(ii) The documents incorporated by reference in the
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 and with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereof became or become
effective under the 1933 Act and at each Representation Date, 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, in light of the circumstances under which
they are made, not misleading.
(iii) The Company and its subsidiaries considered as a whole
have not sustained since the date of the latest financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth, incorporated by reference or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated or incorporated therein, there has not been any change
in the capital stock (other than upon exercise of outstanding stock
options or upon conversion of convertible securities outstanding on the
date of the most recent balance sheet included in the Prospectus or
pursuant to the Company's employee stock ownership plan or pursuant to
the Company's employee stock purchase plans or the Company's employee
savings and profit sharing plan), any significant increase in the
long-term debt of the Company and its subsidiaries taken as a whole, or
any material adverse change, or any development which the Company has
reasonable cause to believe will involve a prospective material adverse
change, in or affecting the general affairs, management, consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries considered as a whole, or, other than
the Company's regular quarterly dividend, any dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to conduct its business
as described in the Prospectus with only such exceptions as are not
material to the business of the Company and its subsidiaries considered
as a whole.
(v) The authorized capitalization is as set forth or
incorporated by reference in the Prospectus and all of the issued and
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable.
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(vi) The execution, delivery and performance of this
Agreement, the applicable Terms Agreement, the applicable Indenture in
the case of the issuance of the Offered Debt Securities, the applicable
Warrant Agreement in the case of the issuance of the Warrants and the
applicable Purchase Contract Agreement in the case of issuance of the
Stock Purchase Contracts, and the consummation of the transactions
contemplated herein and therein have been duly authorized by all
necessary corporate action and will not conflict with or constitute a
breach of, or a default under, any material contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company is a party or by which the Company is bound; nor
will such action result in a violation of the provisions of the
Company's Restated Certificate of Incorporation or bylaws of the
Company, as amended, or any applicable law, rule, regulation, judgment,
order or administrative or court decree.
(vii) Other than (a) as set forth, incorporated by reference,
or contemplated in the Prospectus and (b) litigation incident to the
kind of business conducted by the Company and its subsidiaries, which
in the case of those items in (b) individually and in the aggregate is
not material to the Company and its subsidiaries considered as a whole,
there are no legal or governmental proceedings pending to which the
Company and its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or its subsidiaries, the Company has
reasonable cause to believe would individually or in the aggregate have
a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(viii) No consent, approval or authorization of any court or
governmental authority or agency is necessary in connection with the
sale of the Offered Securities or the consummation of the other
transactions contemplated by this Agreement, the applicable Terms
Agreement, the applicable Indenture in the case of the issuance of the
Offered Debt Securities, the applicable Warrant Agreement in the case
of the issuance of the Warrants or the applicable Purchase Contract
Agreement in the case of the issuance of the Stock Purchase Contracts,
except as may be required under the 1933 Act or 1933 Act Regulations,
the 1934 Act or 1934 Act Regulations, the 1939 Act or state securities
laws.
(b) In the event the Offered Securities are Offered Debt Securities,
the Company additionally represents and warrants to each Underwriter as of the
Representation Date that the Offered Debt Securities to be issued and sold
pursuant to this Agreement have been duly authorized, and when issued,
authenticated and delivered pursuant to this Agreement, against payment of the
consideration set forth in the Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture under which they are to be issued, which will be substantially in the
form included as an exhibit to the Registration Statement; the applicable
Indenture has been duly authorized, and when duly
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executed and delivered by the Company and the applicable Trustee, will
constitute a valid and legally binding instrument enforceable against the
Company in accordance with its terms subject, as to enforcement, to bankruptcy,
insolvency, reorganization or other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and except as
enforcement thereof may be limited by (i) requirements that a claim with respect
to any Offered Debt Securities denominated other than in U.S. dollars (or a
foreign currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority to limit,
delay or prohibit the making of payments outside the United States; and the
Offered Debt Securities and the applicable Indenture conform in all material
respects to the descriptions thereof in, or incorporated by reference into, the
Prospectus and the applicable Prospectus Supplement.
(c) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company makes the following additional
representations and warranties to each Underwriter as of the Representation
Date:
(i) The shares of Common Stock initially issuable upon
conversion or exercise, as the case may be, have been duly authorized
and reserved for issuance, and when issued and delivered, pursuant to
the terms of the Indenture or Warrant Agreement, as the case may be,
will be validly issued, fully paid and non-assessable.
(ii) Holders of Offered Securities receiving shares of Common
Stock issued upon the conversion or exercise of such Offered
Securities, as the case may be, will also be entitled, to the same
extent as will all shares of Common Stock issuable at such time
otherwise than upon the conversion or exercise of such Offered
Securities, to one preferred share purchase right (a "Right") in
respect of each share of Common Stock so received; each such Right has
been duly authorized, and when issued and delivered in accordance with
the terms of the Rights Agreement, dated as of November 5, 1998,
between the Company and ▇▇▇▇▇▇ Trust and Savings Bank, as amended (the
"Rights Agreement"), will have been duly executed, issued and
delivered; the Rights Agreement has been duly authorized, executed and
delivered by the Company and ▇▇▇▇▇▇ Trust and Savings Bank and is
enforceable against the Company in accordance with its terms, subject,
as to enforcement, to general equity principles; and the Rights and the
Rights Agreement conform in all material respects to the descriptions
thereof included in or incorporated by reference into the Prospectus
and the applicable Prospectus Supplement.
(iii) The Common Stock conforms in all material respects to
the description thereof included in or incorporated by reference into
the Prospectus and the applicable Prospectus Supplement and is not
subject to preemptive or other similar rights.
(d) In the event the Offered Securities are Warrants or Stock Purchase
Contracts, the Company additionally represents and warrants to each Underwriter
as of the Representation Date that the Warrants or Stock Purchase Contracts to
be issued and sold
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pursuant to this Agreement have been duly authorized, and when issued,
authenticated and delivered pursuant to this Agreement, against payment of the
consideration set forth in the Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
applicable Warrant Agreement or Purchase Contract Agreement under which they are
to be issued, which will be substantially in the form included as an exhibit to
the Registration Statement; the applicable Warrant Agreement or Purchase
Contract Agreement has been duly authorized, and when duly executed and
delivered by the Company and the applicable Warrant Agent or Purchase Contract
Agent, will constitute a valid and legally binding instrument enforceable in
accordance with its terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and (i) the Warrants and the
applicable Warrant Agreement or (ii) the Stock Purchase Contracts and the
applicable Purchase Contract Agreement conform in all material respects to the
descriptions thereof in, or incorporated by reference into, the Prospectus and
the applicable Prospectus Supplement.
(e) In the event the Offered Securities are shares of Common Stock or
Units containing shares of Common Stock, the Company makes the following
additional representations and warranties to each Underwriter as of the
Representation Date:
(i) The Common Stock to be issued and sold pursuant to this
Agreement has been duly authorized, and when issued and delivered
pursuant to this Agreement, against payment of the consideration set
forth in the applicable Terms Agreement, will be validly issued and
fully paid and non-assessable.
(ii) The Offered Securities will be entitled, to the same
extent as all other shares of Common Stock issued or to be issued by
the Company, to one Right in respect of each share of Common Stock so
received; each such Right has been duly authorized, and when issued and
delivered in accordance with the terms of the Rights Agreement will
have been duly executed, issued and delivered; the Rights Agreement has
been duly authorized, executed and delivered by the Company and ▇▇▇▇▇▇
Trust and Savings Bank and is enforceable against the Company in
accordance with its terms, subject, as to enforcement, to general
equity principles; and the Rights and the Rights Agreement conform to
the descriptions thereof included in or incorporated by reference into
the Prospectus and the applicable Prospectus Supplement.
(iii) The Common Stock conforms in all material respects to
the description thereof included in or incorporated by reference into
the Prospectus and the applicable Prospectus Supplement and is not
subject to preemptive or other similar rights.
(f) In the event the Offered Securities are Debt Securities Warrants or
Units containing Debt Securities Warrants, the Company makes the following
additional representations and warranties to each Underwriter as of the
Representation Date:
(i) The debt securities initially issuable upon the exercise
of such Offered Securities, have been duly authorized, and, when
issued, will be duly
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executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the indenture under which they will be issued.
(ii) The debt securities issuable upon exercise of the Debt
Securities Warrants conform in all material respects to the description
thereof included in or incorporated by reference into the Prospectus
and the applicable Prospectus Supplement.
(g) In the event the Offered Securities are Warrants, Offered Debt
Securities, Stock Purchase Contracts or Offered Stock Purchase Units convertible
into or exercisable for Common Stock, the Company additionally represents and
warrants to each Underwriter as of the Representation Date that upon issuance
and delivery of such Warrants, Offered Debt Securities, Stock Purchase Contracts
or Offered Stock Purchase Units in accordance with (i) this Agreement and the
applicable Terms Agreement, and (ii) the applicable Warrant Agreement, Indenture
or Purchase Contract Agreement, as the case may be, (A) the Warrants shall be
exercisable at the option of the holder thereof for shares of Common Stock or
debt securities, as the case may be, in accordance with the terms of the
Warrants and the applicable Warrant Agreement, (B) such Debt Securities shall be
convertible at the option of the holder thereof for shares of Common Stock in
accordance with the terms of such Debt Securities and the applicable Indenture
and (C) the Stock Purchase Contracts or the Offered Stock Purchase Units shall
be exercisable in accordance with the terms of such Stock Purchase Contracts and
the applicable Purchase Contract Agreement.
(h) Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with an
offering of Offered Securities shall be deemed a representation and warranty by
the Company as to the matters covered thereby to each Underwriter.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) The several commitments of the Underwriters to purchase the Offered
Securities pursuant to any Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters shall be made at the place set
forth in the applicable Terms Agreement, or at such other place as shall be
agreed upon by the Representatives and the Company, on the third business day
(unless postponed in accordance with the provisions of Section 9) following the
date of the applicable Terms Agreement, unless the Offered Securities are priced
after 4:30 p.m., New York time, in which case such payment and delivery will be
made on the fourth business day following the date of the applicable Terms
Agreement (unless postponed in accordance with the provisions of Section 9), or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (each such time and date
being referred to as a
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"Closing Time"). 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 the Offered Securities to be purchased by them.
(c) Certificates for the Offered Securities shall be in such
denominations and registered in such names as the Representatives may request in
writing at least one business day before the applicable Closing Time. The
certificates for the Offered Securities, which may be in temporary form, will be
made available for examination and packaging by the Representatives in New York
City not later than 3:00 p.m. on the last business day prior to the applicable
Closing Time.
SECTION 3. COVENANTS. (a) The Company covenants with each Underwriter
as follows:
(i) From the date of the applicable Terms Agreement, and for
so long as a Prospectus is required to be delivered in connection with
the sale of the Offered Securities covered by such Terms Agreement, the
Company will notify the Representatives immediately, and confirm the
notice in writing, (A) of the effectiveness of any amendment to the
Registration Statement, (B) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be
incorporated by reference into the Registration Statement or
Prospectus, (C) of the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or any Prospectus
Supplement, or the documents incorporated therein, (D) of any request
by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus, or the documents
incorporated therein, or for additional information, (E) of the
suspension of the qualification of (i) the Offered Securities, or (ii)
the shares of Common Stock (including the Rights associated therewith)
issuable upon conversion or exercise of the Offered Securities, in the
case of the issuance of Offered Securities convertible into or
exercisable for Common Stock, for offering or sale in any jurisdiction,
or the initiation or threatening of any proceedings for any such
purpose, and (F) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of the Prospectus or any preliminary
prospectus supplement, or the initiation of any proceedings for any
such purpose. The Company will use every reasonable effort to prevent
the issuance of any stop order or any order preventing or suspending
the use of the Prospectus or any preliminary prospectus supplement or
suspending such qualification, and, in the event of the issuance of a
stop order or any order preventing or suspending the use of the
Prospectus or any preliminary prospectus supplement or suspending such
qualification, to obtain the lifting thereof at the earliest possible
moment.
(ii) From the date of the applicable Terms Agreement, and for
so long as a Prospectus is required to be delivered in connection with
the sale of the Offered Securities covered by such Terms Agreement, the
Company will give the Representatives notice of its intention to file
or prepare any amendment to the
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Registration Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus (including any revised
prospectus which the Company proposes for use by you in connection with
the offering of the Offered Securities which differs from the
prospectus on file with the Commission at the time the Registration
Statement became effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule
434 of the 1933 Act Regulations) and will furnish them with copies of
any such amendment or supplement or other documents proposed to be
filed a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file any such amendment or supplement
or use any such prospectus to which you or your counsel shall
reasonably object.
(iii) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the ▇▇▇▇ ▇▇▇.
(iv) The Company will deliver to each of the Representatives
two copies of the Registration Statement as originally filed and each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and, if applicable, documents incorporated by
reference into the Prospectus pursuant to Item 12 of Form S-3 under the
▇▇▇▇ ▇▇▇) and will also deliver to the Representatives, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, as many conformed copies of the
Registration Statement as originally filed and each amendment thereto
(without exhibits) as the Representatives may reasonably request.
(v) Prior to 1:00 p.m., New York City time, on the business
day next succeeding the date of the applicable Terms Agreement and from
time to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, the Company will furnish
to the Representatives in New York City such number of copies of the
Prospectus (as amended or supplemented) as the Representatives may
reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(vi) The Company will comply with the 1933 Act and the 1933
Act Regulations and the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Offered Securities as
contemplated in the applicable Terms Agreement and in the Registration
Statement and Prospectus. If at any time when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of
the Offered Securities any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, the Company will forthwith
amend or supplement the Prospectus (in form and substance satisfactory
to your counsel) so that, as so amended or supplemented, the Prospectus
will not include an untrue statement of a
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material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at
the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Representatives a reasonable number of
copies of such amendment or supplement.
(vii) The Company will endeavor, in cooperation with you, to
qualify the Offered Securities and, in the case of the issuance of
Offered Securities convertible into or exercisable for Common Stock,
the shares of Common Stock (including the Rights associated therewith)
issuable upon conversion or exercise, as the case may be, for offering
and sale under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a general consent to service of process in any jurisdiction. In
each jurisdiction in which the Offered Securities, or in the case of
the issuance of Offered Securities convertible into or exercisable for
Common Stock, such shares of Common Stock (including the Rights
associated therewith), have been so qualified, the Company will file
such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as
may be required to complete such distribution of such Offered
Securities.
(viii) With respect to each sale of Offered Securities, the
Company agrees that it will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158 under the ▇▇▇▇ ▇▇▇) covering
a twelve-month period beginning, in each case, not later than the first
day of the Company's fiscal quarter next following the "effective date"
(as defined in said Rule 158) of the Registration Statement relating to
such Offered Securities.
(ix) If the Company elects not to rely on Rule 434 under the
1933 Act Regulations, immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth, where applicable, the principal amount or number of shares, as
the case may be, of the Offered Securities covered thereby, the name or
names of the Underwriters (subject to substitution as provided in
Section 9 hereof) and the principal amount or number of shares, as the
case may be, of the Offered Securities which each severally has agreed
to purchase, the name or names of the Representatives, the price at
which the Offered Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the selling
concession and reallowance, if any, the other terms of the Offered
Securities to the extent not otherwise specified in the applicable
Indenture or Warrant Agreement, as the case may be, in the event the
Offered Securities are Offered Debt Securities or Warrants, and such
other information as the Representatives and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus and such
11
Prospectus Supplement as the Representatives shall reasonably request.
If the Company elects to rely on Rule 434 of the 1933 Act Regulations,
immediately following the execution of each Terms Agreement, the
Company will (i) prepare an abbreviated term sheet that complies with
the requirements of Rule 434 of the 1933 Act Regulations, (ii) provide
the Underwriters with copies of the form of the Rule 434 Prospectus in
such number as the Underwriters may reasonably request and (iii) file
or transmit for filing with the Commission the form of Prospectus
complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance
with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York on the business day immediately succeeding the date of the
Terms Agreement.
(b) In the event the Offered Securities are Offered Debt Securities,
Debt Securities Warrants or Units containing Debt Securities Warrants, the
Company additionally covenants with each Underwriter that the Company will not
contract to sell or announce or make any offering, sale or other disposition of
any debt securities of the Company having a maturity greater than one year
during the period beginning from the date of any Terms Agreement and continuing
through the later of the termination of trading restrictions with respect to the
Offered Securities, as notified to the Company by the Representatives, or the
applicable Closing Time except for (i) proposed issues of debt securities with
respect to which the Company shall have advised the Representatives in writing
prior to the execution of the applicable Terms Agreement and (ii) except for
such other debt securities with respect to which the Representatives have given
their prior written consent.
(c) In the event the Offered Securities are shares of Common Stock,
Units containing shares of Common Stock or are convertible into or exercisable
for Common Stock, the Company additionally covenants with each Underwriter as
follows:
(i) The Company will not contract to sell or announce or make
any offering, sale or other disposition of any shares of Common Stock
or any securities convertible into or exchangeable for shares of Common
Stock (collectively, "Common Equity Securities"), nor will the Company
sell or grant options, rights or warrants with respect to any Common
Equity Securities (except (i) under the Company's stock option and
other employee incentive and benefit plans existing on the date of the
applicable Terms Agreement, (ii) for sales of Common Equity Securities
under currently effective secondary shelf registration statements,
(iii) Common Stock with an aggregate Market Value (as defined below) of
no more than $500,000,000 issued as consideration for acquisitions and
(iv) for Common Stock issued upon conversion of outstanding convertible
securities), in each case during a period of 90 days after the
commencement of the public offering of the Offered Securities
referenced in Section 3(c) hereof, except for (a) proposed issues of
Common Equity Securities with respect to which the Company shall have
advised the Representatives in writing prior to the execution hereof
and (b) except for such other Common Equity Securities with respect to
which the Representatives have given their prior written consent.
The "Market Value" of Common Stock issued as consideration for
acquisitions shall equal the number of shares of Common Stock issued
times the
12
Closing Price (as defined below) of the Common Stock on the Trading Day
prior to the date on which such Common Stock is issued. The "Closing
Price" of the Common Stock on any Trading Day means the closing sale
price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE")
on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for
the principal United States securities exchange on which the Common
Stock is so listed, or if the Common Stock is not so listed on a United
States national or regional securities exchange, as reported by The
Nasdaq Stock Market, or, if the Common Stock is not so reported, the
last quoted bid price for the Common Stock in the over-the-counter
market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Company. A "Trading Day" means a day on which the Common
Stock (A) is not suspended from trading on any national or regional
securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or
regional securities exchange or association or over-the-counter market
that is the primary market for the trading of the Common Stock.
(ii) The Company will use its best efforts to effect the
listing of (A) Offered Securities that are shares of the Common Stock
and (B) shares of the Common Stock issuable upon the conversion or
exercise of the Offered Securities, as the case may be, on the New York
Stock Exchange (and/or such other exchanges or trading markets on which
the Common Stock is then listed or admitted for trading), and to cause
such Offered Securities to be registered under the 1934 Act.
(iii) In the case of the issuance of Offered Securities
convertible into or exercisable for Common Stock, the Company agrees to
reserve and keep available at all times, free of preemptive rights,
shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue shares of Common Stock upon conversion
or exercise of the Offered Securities, as the case may be.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and each
Terms Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the copying of
this Agreement, each Terms Agreement, the Indentures, in the case of the
issuance of the Offered Debt Securities, the Warrant Agreements, in the case of
the issuance of the Warrants, and the Purchase Contract Agreements, in the case
of the issuance of Stock Purchase Contracts, (iii) the preparation, issuance and
delivery to the Underwriters of the certificates for the Offered Securities,
(iv) the fees and disbursements of the Company's counsel and accountants, (v)
the qualification of the Offered Securities and, in the case of the issuance of
Offered Securities convertible into or exercisable for Common Stock, the shares
of Common Stock (including the Rights associated therewith) issuable upon the
conversion or exercise of the Offered Securities, as the case may be, under
securities laws in accordance with the provisions of Section 3(a)(vii),
13
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of any preliminary prospectuses and of the Prospectus and any
amendments or supplements (including any preliminary prospectus supplements)
thereto, including, if applicable, the abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vii) the copying and
delivery to the Underwriters of copies of the Blue Sky survey, (viii) in the
case of the issuance of Offered Debt Securities, the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indentures, (ix) in the case of the issuance of Warrants,
the fees and expenses of the Warrant Agent, including the fees and disbursements
of counsel for the Warrant Agent in connection with the Warrant Agreements, (x)
in the case of the issuance of Stock Purchase Contracts, the fees and expenses
of the Purchase Contract Agent in connection with the Purchase Contract
Agreements, including the fees and disbursements of counsel for the Purchase
Contract Agent in connection with the Purchase Agreements, (xi) where
applicable, any fees payable in connection with the rating of the Offered
Securities, (xii) where applicable, the filing fee payable to the National
Association of Securities Dealers, Inc. incident to any required review of the
terms of the sale of the Offered Securities, (xiii) where applicable, the fees
and expenses incurred in connection with the listing of the Offered Securities,
and in the case of the issuance of Offered Securities convertible into or
exercisable for Common Stock, the shares of Common Stock issuable upon the
conversion or exercise of the Offered Securities, as the case may be, on the New
York Stock Exchange (and/or such other exchanges or trading markets on which the
Common Stock is then listed or admitted for trading), and (xiv) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. Except as provided in
this Section and in Sections 6 and 7, the Underwriters will pay all of their own
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes on resale of any of the Offered Securities by them, and any
advertising expenses which they may incur.
If a Terms Agreement is terminated by the Representatives in accordance
with the provisions of Section 5, other than solely as the result of a material
adverse change in the financial markets in the United States as provided for in
Section 5(f)(iii), the Company shall reimburse you for all out-of-pocket
expenses, including the reasonable fees and disbursements of your counsel,
reasonably incurred by you in making preparations for the purchase, sale and
delivery of the Offered Securities.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriters to purchase the Offered Securities pursuant to any Terms
Agreement are subject, in the discretion of the Representatives, to the accuracy
of the representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) At the applicable 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; all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable
14
satisfaction; and the Prospectus as amended or supplemented in relation to the
applicable Offered Securities shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for filing pursuant
to the 1933 Act and the 1933 Act Regulations.
(b) At the applicable Closing Time, you shall have received the
favorable opinion, dated as of the applicable Closing Time, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Counsel, of the Law Department of the Company, or another attorney
employed by the Company who is acceptable to the Representatives (the "Company
Attorney's Opinion") (except in the case of (A) item (1)(vii), where applicable,
insofar as it relates to "Certain Tax Aspects", which opinion shall be delivered
by a special outside tax counsel to the Company, and (B) items (2) and (7), in
each case where applicable, which opinions shall be delivered by Winston &
▇▇▇▇▇▇, counsel to the Company, or such other counsel who is acceptable to the
Representatives (the "New York Attorney's Opinion")), in form and substance
satisfactory to your counsel.
(1) The Company Attorney's Opinion shall be 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 State
of Delaware, with corporate power and authority to conduct its business
as described in the Prospectus.
(ii) The authorized capitalization of the Company is as set
forth or incorporated by reference in the Prospectus and all of the
issued and outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable.
(iii) This Agreement and the applicable Terms Agreement have
each been duly authorized, executed and delivered by the Company.
(iv) A member of the Commission's staff has advised such
counsel by telephone that the Commission has entered an order declaring
the Registration Statement effective under the 1933 Act and, to the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the
Commission. Any required filing of the Prospectus pursuant to Rule 424
has been made in the manner and within the time period required by Rule
424.
(v) At the time the Registration Statement became effective
and at each Representation Date, the Registration Statement and the
Prospectus (other than the financial statements and other financial
data and supporting schedules included therein and in the documents
incorporated by reference into the Prospectus, as to which no opinion
need be rendered) complied as to form in all material respects with the
applicable requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations thereunder and, where
applicable, the Rule 434 Prospectus conforms to the requirements of
Rule 434 of the 1933 Act
15
Regulations in all material respects; the documents incorporated by
reference into the Prospectus (other than the financial statements and
other financial data and supporting schedules included therein, as to
which no opinion need be rendered), when they were filed with the
Commission, complied as to form in all material respects with the
applicable requirements of the 1934 Act and the 1934 Act Regulations;
and to the best of such counsel's knowledge, there are no contracts or
other documents required to be described or referred to in the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference thereto and the descriptions thereof or
references thereto are correct in all material respects.
(vi) To the best of such counsel's knowledge, other than as
set forth or incorporated by reference or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject,
other than litigation incident to the kind of business conducted by the
Company and its subsidiaries, which litigation incident to the
Company's business individually and in the aggregate is not material to
the Company and its subsidiaries considered as a whole; and, to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(vii) Where applicable, the discussion in the Prospectus or
the applicable Prospectus Supplement under "Certain Tax Aspects" (or a
similar heading or headings) is a fair and accurate summary of the
matters addressed therein, based upon current law and the assumptions
stated or referred to therein.
(viii) No consent, approval, authorization, order,
registration or qualification of any court or governmental authority or
agency is required in connection with the issuance and sale of the
Offered Securities or the consummation of the other transactions
contemplated by this Agreement, the applicable Terms Agreement, the
applicable Indenture in the case of the issuance of the Offered Debt
Securities, the applicable Warrant Agreement in the case of the
issuance of the Warrants and the applicable Purchase Contract Agreement
in the case of the issuance of Stock Purchase Contracts, except such as
have been obtained or rendered, as the case may be, or such consents,
approvals, authorizations, registrations or qualifications as may be
required under the securities or Blue Sky laws of any jurisdiction in
connection with the purchase and distribution of the Offered Securities
by you or the issuance of shares of Common Stock (including the Rights
associated therewith), upon conversion or exercise of the Offered
Securities, in the case of the issuance of Offered Securities
convertible into or exercisable for Common Stock.
(ix) The execution and delivery of this Agreement, the
applicable Terms Agreement, the applicable Indenture in the case of the
issuance of the Offered Debt Securities, the applicable Warrant
Agreement in the case of the issuance of the Warrants and the
applicable Purchase Contract Agreement in the case of the issuance of
the Stock Purchase Contracts, the issuance of the Offered Securities
and the shares
16
of Common Stock (including the Rights associated therewith) issuable
upon conversion or exercise of the Offered Securities in the case of
the issuance of Offered Securities convertible into or exercisable for
Common Stock, the compliance by the Company with all of the provisions
of the Offered Securities and the applicable Indenture and Warrant
Agreement in the case of the issuance of Offered Debt Securities or
Warrants, this Agreement and the applicable Terms Agreement and the
consummation of the transactions herein or therein contemplated do not
and will not conflict with or constitute a breach of, or a default
under, (a) the Company's Restated Certificate of Incorporation or
bylaws of the Company, as amended, (b) any indenture, mortgage, loan
agreement or note or any material contract, lease or other agreement or
instrument, in each case known to such counsel and to which the Company
is a party or by which the Company is bound, or (c) any applicable law,
rule, regulation, judgment, order or administrative or court decree
known to such counsel (except that such counsel need express no opinion
in response to this item as to compliance with any disclosure
requirements).
(2) In the event the Offered Securities are Offered Debt Securities,
the New York Attorney's Opinion shall be to the effect that:
(i) The applicable Indenture has been duly authorized,
executed and delivered by the Company and is a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms (provided, that such counsel may take
customary exceptions to such opinion to cover commonly known
limitations on enforceability).
(ii) The Offered Debt Securities are in the form established
pursuant to the applicable Indenture, have been duly authorized,
executed and delivered by the Company, and when issued and delivered by
the Company against payment therefor in accordance with the terms of
such Indenture, will constitute Debt Securities under the terms of such
Indenture, will constitute the valid and binding obligations of the
Company, and will be enforceable against the Company in accordance with
their terms, and the holders thereof will be entitled to the benefits
provided by such Indenture (provided, that such counsel may take
customary exceptions to such opinion to cover commonly known
limitations on enforceability).
(iii) The applicable Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended.
(iv) The Offered Debt Securities and the applicable Indenture
conform to the descriptions thereof in, or incorporated by reference
in, the Prospectus and the applicable Prospectus Supplement.
(v) The statements set forth in the Prospectus and the
applicable Prospectus Supplement under "Description of Debt Securities"
(or a similar heading or headings), insofar as they purport to
constitute summaries of certain terms of the Offered Debt Securities
and the applicable Indenture, are accurate in all material respects.
17
(3) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company Attorney's Opinion shall additionally
be to the effect that:
(i) Holders of Offered Securities convertible into or
exercisable for Common Stock receiving shares of Common Stock issued
upon the conversion or exercise of such Offered Securities, as the case
may be, will also be entitled, to the same extent as will all shares of
Common Stock issuable at such time otherwise than upon the conversion
or exercise of such Offered Securities, to one Right in respect of each
share of Common Stock so received; each such Right has been duly
authorized, and when issued and delivered in accordance with the terms
of the Rights Agreement, will have been duly executed, issued and
delivered; the Rights Agreement, as amended, has been duly authorized,
executed and delivered by the Company and ▇▇▇▇▇▇ Trust and Savings Bank
and is enforceable against the Company in accordance with its terms,
subject, as to enforcement, to general equity principles; and the
Rights and the Rights Agreement conform to the descriptions thereof
included in or incorporated by reference into the Prospectus and the
applicable Prospectus Supplement.
(ii) Upon issuance and delivery of Offered Securities
convertible into or exercisable for Common Stock in accordance with
this Agreement and the applicable Terms Agreement, and the applicable
Indenture, Warrant Agreement or Purchase Contract Agreement, as the
case may be, such Offered Securities shall be convertible or
exercisable at the option of the holder thereof for shares of Common
Stock in accordance with the terms of such Offered Securities and the
applicable Indenture, Warrant Agreement or Purchase Contract Agreement,
as the case may be; and the shares of Common Stock initially issuable
upon conversion or exercise of such Offered Securities have been duly
authorized and reserved for issuance and, when issued and delivered
pursuant to the terms of the applicable Indenture, Warrant Agreement or
Purchase Contract Agreement, as the case may be, will be validly
issued, fully paid and non-assessable.
(iii) The Common Stock conforms to the description thereof in,
or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other similar
rights; and the information in the Prospectus and the applicable
Prospectus Supplement under "Description of Capital Stock" (or a
similar heading or headings), to the extent that it constitutes matters
of law or legal conclusions, has been reviewed by such counsel and is
correct in all material respects.
(iv) The shares of Common Stock issuable upon the conversion
or exercise of such Offered Securities, as the case may be, have been
approved for listing upon notice of issuance on the New York Stock
Exchange (and/or such other principal exchanges or trading markets on
which the Common Stock is then listed or admitted for trading).
18
(4) In the event the Offered Securities are Warrants, the Company
Attorney's Opinion shall additionally be to the effect that:
(i) The Warrants to be issued and sold by the Company pursuant
to this Agreement and the applicable Terms Agreement have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the applicable Warrant Agreement;
the Warrants and the applicable Warrant Agreement conform to the
descriptions thereof in, or incorporated by reference into, the
Prospectus and the applicable Prospectus Supplement; and the
information in the Prospectus and the applicable Prospectus Supplement
under "Description of Securities Warrants" (or a similar heading or
headings) to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(ii) The applicable Warrant Agreement has been duly
authorized, executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(5) In the event the Offered Securities are shares of Common Stock or
Units containing shares of Common Stock, the Company Attorney's Opinion shall
additionally be to the effect that:
(i) The Common Stock conforms to the description thereof in,
or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other similar
rights; and the information in the Prospectus and the applicable
Prospectus Supplement under "Description of Capital Stock" (or a
similar heading or headings), to the extent that it constitutes matters
of law or legal conclusions, has been reviewed by such counsel and is
correct in all material respects.
(ii) The Common Stock will be entitled, to the same extent as
any other shares of Common Stock issued or to be issued by the Company,
to one Right in respect of each share of Common Stock so received; each
such Right has been duly authorized, and when issued and delivered in
accordance with the terms of the Rights Agreement will have been duly
executed, issued and delivered; the Rights Agreement has been duly
authorized, executed and delivered by the Company and ▇▇▇▇▇▇ Trust and
Savings Bank and is enforceable against the Company in accordance with
its terms, subject, as to enforcement, to general equity principles;
and the Rights and the Rights Agreement conform to the descriptions
thereof included in or incorporated by reference into the Prospectus.
(iii) The Common Stock to be issued and sold pursuant to this
Agreement and the applicable Terms Agreement has been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this
Agreement against payment of the
19
consideration set forth in the Terms Agreement, will be validly issued
and fully paid and non-assessable.
(iv) The shares of Common Stock to be issued and sold pursuant
to this Agreement and the applicable Terms Agreement have been approved
for listing upon notice of issuance on the New York Stock Exchange
(and/or such other principal exchanges or trading markets on which the
Common Stock is then listed or admitted for trading).
(6) In the event the Offered Securities are Stock Purchase Contracts,
the Company Attorney's Opinion shall additionally be to the effect that:
(i) The Stock Purchase Contracts to be issued and sold by the
Company pursuant to this Agreement and the applicable Terms Agreement
have been duly authorized, executed, authenticated, issued and
delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the applicable Purchase
Contract Agreement; the Stock Purchase Contracts and the applicable
Purchase Contract Agreement conform to the descriptions thereof in, or
incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement; and the information in the Prospectus and the
applicable Prospectus Supplement under "Description of Purchase
Contracts" (or a similar heading or headings) to the extent that it
constitutes matters of law or legal conclusions, has been reviewed by
such counsel and is correct in all material respects.
(ii) The applicable Purchase Contract Agreement has been duly
authorized, executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(iii) The Common Stock to be issued pursuant to the Stock
Purchase Contracts conforms to the description thereof in, or
incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other similar
rights; and the information in the Prospectus and the applicable
Prospectus Supplement under "Description of Capital Stock" (or a
similar heading or headings), to the extent that it constitutes matters
of law or legal conclusions, has been reviewed by such counsel and is
correct in all material respects.
(iv) The Common Stock to be issued pursuant to the Stock
Purchase Contract will be entitled, to the same extent as any other
shares of Common Stock issued or to be issued by the Company, to one
Right in respect of each share of Common Stock so received; each such
Right has been duly authorized, and when issued and delivered in
accordance with the terms of the Rights Agreement will have been duly
executed, issued and delivered; the Rights Agreement has been duly
authorized, executed and delivered by the Company and ▇▇▇▇▇▇ Trust and
Savings Bank and is enforceable against the Company in accordance with
its terms, subject, as to enforcement, to general equity principles;
and the Rights and the Rights Agreement
20
conform to the descriptions thereof included in or incorporated by
reference into the Prospectus.
(v) The Common Stock to be issued pursuant to the Stock
Purchase Contracts has been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of
the consideration set forth in the Terms Agreement, will be validly
issued and fully paid and non-assessable.
(vi) The shares of Common Stock to be issued and sold pursuant
to this Agreement and the applicable Terms Agreement have been approved
for listing upon notice of issuance on the New York Stock Exchange
(and/or such other principal exchanges or trading markets on which the
Common Stock is then listed or admitted for trading).
(7) In the event the Offered Securities are Debt Securities Warrants or
Units containing Debt Securities Warrants, the New York Attorney's Opinion shall
be to the effect that:
(i) Upon issuance and delivery of Offered Securities
exercisable into debt securities, such Offered Securities shall be
exercisable at the option of the holder thereof for debt securities in
accordance with the terms of such Offered Securities and the applicable
Warrant Agreement; and the debt securities initially issuable upon the
exercise of such Offered Securities, have been duly authorized, and,
when issued, will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the indenture under
which they will be issued.
(ii) The statements set forth in the applicable Prospectus
Supplement describing the debt securities issuable upon exercise of the
Debt Securities Warrants, insofar as they purport to constitute
summaries of certain terms of the debt securities, are accurate in all
material respects.
The Company Attorney's Opinion shall additionally state that nothing
has come to his or her attention that has caused him or her to believe that the
Registration Statement (other than the financial statements, financial data and
schedules included therein, as to which such counsel need express no belief), at
the time it became effective or at the Representation Date, 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 (other than the financial statements, financial data and
schedules included therein, as to which such counsel need express no belief), at
the Representation Date (unless the term "Prospectus" refers to a prospectus
which has been provided to you by the Company for use in connection with the
offering of the Offered Securities which differs from the Prospectus on file at
the Commission at the Representation Date, in which case at the time it is
provided to you for such use) or at Closing Time, included an untrue statement
of a material fact or omitted 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.
21
(c) At the applicable Closing Time, you shall have received
the favorable opinion, dated as of the applicable Closing Time, of your counsel,
with respect to the matters set forth in (b)(1)(i) (insofar as it relates to the
existence and good standing of the Company), (b)(1)(iii) - (v), inclusive (in
the case of (v), insofar as it relates to the compliance of the Registration
Statement and Prospectus as to form), (b)(2)(i), (b)(2)(ii), (b)(3)(ii),
(b)(3)(iii) (insofar as it relates to the description of the Common Stock),
(b)(4)(i), (b)(4)(ii), (b)(5)(i) (insofar as it relates to the description of
the Common Stock), (b)(5)(iii), (b)(7)(i) and (b)(7)(ii) as well as the last
paragraph of subsection (b) of this Section.
(d) (i) The Company and its subsidiaries considered as a whole
shall have not sustained since the date of the latest financial statements
included or incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth, incorporated by reference or
contemplated in the Prospectus (excluding any amendments or supplements thereto,
or the filing of any document that is incorporated by reference therein,
subsequent to the date of the applicable Terms Agreement), and (ii) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus (excluding any amendments or supplements to such Registration
Statement or Prospectus, or the filing of any document that is incorporated by
reference therein, subsequent to the date of the applicable Terms Agreement)
there shall not have been any change in the capital stock (other than upon
exercise of outstanding stock options or upon conversion of convertible
securities outstanding at the date of the most recent balance sheet included in
the Prospectus or pursuant to the Company's employee stock ownership plan or
pursuant to the Company's employee stock purchase plans or the Company's
employee savings and profit sharing plan) or any significant increase in
long-term debt of the Company and its subsidiaries considered as a whole or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries considered
as a whole, otherwise than as set forth or incorporated by reference or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
(e) On or after the date of the applicable 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) under the
1933 Act 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.
(f) On or after the date of the applicable Terms Agreement there shall
not have occurred any of the following: (i) a suspension or material limitation
in trading in the Common Stock or securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New York
or Illinois declared by either Federal or state authorities; or (iii) any
material adverse change in the financial markets in
22
the United States or the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iii) in your
judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Offered Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented.
(g) You shall have received a certificate of the Chief Executive
Officer, the President or another senior officer acceptable to you of the
Company and of the Chief Financial Officer, Controller, Treasurer or Assistant
Treasurer of the Company, dated as of the applicable Closing Time, to the effect
that (i) the Company and its subsidiaries shall not have sustained any loss or
interference with its business of the type specified in Section 5(d)(i) and
there shall not have occurred any change of the type specified in Section
5(d)(ii), (ii) there shall not have occurred any downgrading of the type
specified in Section 5(e), (iii) the applicable representations and warranties
in Section 1 are true and correct with the same force and effect as though
expressly made at and as of such Closing Time, (iv) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to such Closing Time, and (v) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
(h) At the time of the execution of each Terms Agreement, you shall
have received from KPMG LLP a letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are independent public
accountants with respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in or incorporated by
reference into the Registration Statement or the Prospectus and covered by their
opinions therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations; (iii) based upon limited procedures set
forth in detail in such letter, nothing has come to their attention which causes
them to believe that (A) the unaudited financial statements and supporting
schedules of the Company and its subsidiaries included in or incorporated by
reference into the Registration Statement or the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act
Regulations, as the case may be, or are not presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in or
incorporated by reference into the Registration Statement or the Prospectus or
(B) at a specified date not more than three days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock of
the Company (other than upon exercise of outstanding stock options or upon
conversion of convertible securities outstanding on the date of the most recent
balance sheet included in or incorporated by reference into the Prospectus or
pursuant to the Company's employee stock ownership plan or pursuant to the
Company's stock purchase plans or the Company's employee savings and profit
sharing plan) or any increase in the consolidated long-term debt of the Company
and its subsidiaries or any decrease in consolidated net current assets or net
assets as compared with the amounts shown in the most recent balance sheet
included in or incorporated by reference into the Prospectus or, during the
period from the date of the most
23
recent financial statements included in or incorporated by reference into the
Prospectus to a specified date not more than three days prior to the date of
such Terms Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated net sales, net
earnings or net earnings per share of the Company and its subsidiaries, except
in all instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv) in
addition to the examination referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in or
incorporated by reference into the Registration Statement and Prospectus and
which are reasonably specified by you, and have found such amounts, percentages
and financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries identified in
such letter.
(i) At each Closing Time, your counsel shall have been furnished with
such documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Offered Securities, as contemplated
herein, and related proceedings, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Offered Securities and debt securities or shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise of the Offered Securities, in the case of the issuance of
Offered Securities convertible into Common Stock or exercisable for Common Stock
or debt securities, as the case may be, as herein contemplated, shall be
satisfactory in form and substance to you and your counsel.
(j) In the case of the issuance of shares of Common Stock, Units
containing shares of Common Stock or Offered Securities convertible into or
exercisable for Common Stock, at each Closing Time, you shall have received the
written agreement of each of the persons specified in the applicable Terms
Agreement, if any, to the effect that each such person will not contract to sell
or announce or make any offering, sale or other disposition of any shares of
Common Stock, nor sell or grant any options, rights or warrants with respect to
any shares of Common Stock, in each case during a period of 30 days after the
commencement of the public offering of the Offered Securities, without your
prior written consent.
(k) The Company shall have complied with the provisions of Section
3(a)(v) hereof.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement and the
applicable Terms Agreement may be terminated by the Representatives by notice to
the Company at any time at or prior to the applicable Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 6 and 7 shall survive any such
termination and remain in full force and effect.
24
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement, including any preliminary prospectus
supplement, thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense 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, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements
of counsel chosen by you), reasonably incurred in investigating,
preparing or 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 (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement, including any preliminary prospectus
supplement, thereto); and further provided that this indemnity agreement does
not apply to any loss, liability, claim, damage or expense arising out of any
untrue statement or omission or alleged untrue statement or omission made in a
preliminary prospectus or preliminary prospectus supplement, as the case may be,
but eliminated or remedied in the Prospectus if a copy of the Prospectus
(excluding documents incorporated therein by reference) was not delivered by you
to the person asserting the claim arising from such untrue statement or omission
or such alleged untrue statement or omission, at or prior to the time required
by the 1933 Act.
25
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of the Company's officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement, including any preliminary prospectus
supplement, thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement,
including any preliminary prospectus supplement, thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and you shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
you, as incurred, in such proportions that you are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus bears to the initial public offering price
appearing thereon and the Company is responsible for the balance; provided,
however, that 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. For purposes
of this Section, each person, if any, who controls you within the meaning of
Section 15 of the 1933 Act shall have the same right to contribution as you,
26
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement and the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Underwriter or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Offered Securities to the Underwriters.
SECTION 9. DEFAULT. If one or more of the Underwriters shall fail at
the applicable Closing Time to purchase the Offered Securities which it or they
are obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, during such 24 hours the Representatives
shall not have completed such arrangements for the purchase of all of the
Defaulted Securities, then:
(a) if the aggregate initial public offering price of the Defaulted
Securities does not exceed 10% of the aggregate initial public offering price of
the Offered Securities to be purchased pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations under
the applicable Terms Agreement (including this Agreement as incorporated by
reference therein) bear to the underwriting obligations of all such
non-defaulting Underwriters; or
(b) if the aggregate initial public offering price of the Defaulted
Securities exceeds 10% of the aggregate initial public offering price of the
Offered Securities to be purchased pursuant to such Terms Agreement, such Terms
Agreement (including this Agreement as incorporated by reference therein) shall
terminate, without any liability on the part of any non-defaulting Underwriter
or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the applicable Terms Agreement or this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either the Representatives or the Company shall have the
right to postpone the applicable Closing Time for a period not exceeding seven
days in order that any required changes in the Registration Statement,
Prospectus or applicable Prospectus Supplement, or in any other documents or
arrangements, may be effected.
SECTION 10. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard
27
form of telecommunication. Notices to the Underwriters shall be directed to you
as provided in the applicable Terms Agreement; notices to the Company shall be
directed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
Attention: Treasurer.
SECTION 11. PARTIES. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon you, the Company and your
and the Company's respective successors. Nothing expressed or mentioned in this
Agreement or the applicable Terms Agreement is intended or shall be construed to
give any person, firm or corporation, other than you, the Company and your and
the Company's respective successors and the controlling persons and officers and
directors referred to in Sections 6, 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the applicable Terms Agreement or any provision
herein or therein contained. This Agreement and the applicable Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of you, the Company and your and the Company's
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of the Offered Securities from you
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
[Intentionally left blank]
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
MOTOROLA, INC.
By:
--------------------------------------
Title:
--------------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
By:
By:
--------------------------------
Title:
-----------------------------
29
Exhibit A-1
MOTOROLA, INC.
Debt Securities
TERMS AGREEMENT
-------------, ----
To: Motorola, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $___________ aggregate principal amount
of its Debt Securities. Subject to the terms and conditions set forth herein or
incorporated by reference herein, the underwriter(s) named below (the
"Underwriter(s)") hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are
to be issued under an Indenture dated as of ___________, ____ between the
Company and ________________________________, as Trustee, shall have the
following terms:
Title:
Rank/Subordination:
Date of Maturity:
Interest Rate:
Interest Payment Dates:
Date From Which Interest Accrues:
Public Offering Price:
Purchase Price:
Redemption Provisions:
Conversion Provisions:
Sinking Fund Provisions:
A-1-1
Closing Date, Time and Location:
Manager or Co-Managers:
Current Ratings: ▇▇▇▇▇'▇ Investors Services - __;
Standard & Poor's Corporation - __.
All of the provisions contained in the Underwriting Agreement dated as
of ______________, ____, a copy of which is attached hereto as Annex A, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein. Terms defined in such document are used herein as therein
defined. Each Underwriter severally agrees, subject to the terms and provisions
of this Terms Agreement, including the terms and provisions incorporated by
reference herein, to purchase from the Company the principal amount of the
Offered Securities set forth opposite its name.
PRINCIPAL
NAME AMOUNT
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
[Manager]
By:
----------------------------------------
Accepted:
Motorola, Inc.
By:
----------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
MOTOROLA, INC.
_______ Shares
Common Stock
($3 Par Value Per Share)
TERMS AGREEMENT
-------------, ----
To: Motorola, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell ___________ shares of its common stock,
$3 par value per share (the "Common Stock"). Subject to the terms and conditions
set forth herein or incorporated by reference herein, the underwriter(s) named
below (the "Underwriter(s)") hereby offer(s) to purchase such Offered
Securities.
The Offered Securities to be purchased by the Underwriter(s) shall have
the following terms:
1. The initial public offering price per share for the Common
Stock shall be $_____________.
2. The purchase price per share for the Common Stock to be
paid by you shall be $__________, being an amount equal to the initial
public offering price set forth above less $_________ per share.
3. Closing Date, Time and Location:
4. Manager or Co-Managers:
5. Names of Persons specified pursuant to Section 5(j):
All of the provisions contained in the Underwriting Agreement dated as
of ______________, ____, a copy of which is attached hereto as Annex A, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein. Terms defined in such document are used herein as therein
defined. Each Underwriter severally agrees, subject to the terms and provisions
of this Terms Agreement, including the terms and
A-2-1
provisions incorporated by reference herein, to purchase from the Company the
number of shares of Common Stock set forth opposite its name.
NUMBER
NAME OF SHARES
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
[Manager]
By:
----------------------------------------
Accepted:
Motorola, Inc.
By:
----------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
MOTOROLA, INC.
Warrants
TERMS AGREEMENT
-------------, ----
To: Motorola, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Dear Sirs:
We understand that Motorola, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $___________ aggregate principal amount
of its Warrants. Subject to the terms and conditions set forth herein or
incorporated by reference herein, the underwriter(s) named below (the
"Underwriter(s)") hereby offer(s) to purchase such Offered Securities.
The Offered Securities to be purchased by the Underwriter(s), which are
to be issued under a Warrant Agreement dated as of ___________, ____ between the
Company and _____________________, as Warrant Agent, shall have the following
terms:
Title of Warrants:
Stated Value per Warrant:
Number of Warrants:
Liquidation Value:
Initial Offering Price to Public:
[$ per Warrant][Formula]
Purchase Price by Underwriters:
[$ per Warrant][Formula]
Commission Payable to Underwriters:
[$ per Warrant]
Exercise Price:
A-3-1
Exercise Provisions:
[The Warrants may be exercised in whole or in part at the option of the
Holder, on or after ________________, at the following [price or
formula] for the purchase of [such principal amount] of:
[Debt Securities] [Common Stock]
[Other exercise provisions:]
[Other terms and conditions:]
Expiration Date:
Date of Board or Committee Resolution Establishing the Terms and
Conditions of the Designated Warrants:
Other Terms:
Closing Date, Time and Location:
Manager or Co-Managers:
[Names of Persons specified pursuant to Section 5(j):]
All of the provisions contained in the Underwriting Agreement dated as
of ______________, ____, a copy of which is attached hereto as Annex A, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein. Terms defined in such document are used herein as therein
defined. Each Underwriter severally agrees, subject to the terms and provisions
of this Terms Agreement, including the terms and provisions incorporated by
reference herein, to purchase from the Company the number or Warrants set forth
opposite its name.
NUMBER OF
NAME WARRANTS
---- ---------
Any notice by the Company to the Underwriter(s) pursuant to this Terms
Agreement shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication addressed to:
_______________________; Attention: __________.
A-3-2
Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
[Manager]
By:
----------------------------------------
Accepted:
Motorola, Inc.
By:
----------------------------------------
A-3-3
