Exhibit 1(a)
▇▇▇▇▇▇▇▇'▇ CORPORATION
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory. ▇▇▇▇▇▇▇▇'▇ Corporation (the "Company"), a Delaware
corporation, proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives", which term may refer to a single Representative if so
indicated on Schedule I hereto), the principal amount of its securities
identified in Schedule I hereto (the "Securities"), to be issued under an
Indenture, dated as of October 19, 1996 as supplemented by Supplemental
Indenture No. 7 to be dated as of _______, 2002 (collectively, the "Indenture"),
between the Company and Wachovia Bank, National Association (formerly, First
Union National Bank), as trustee (the "Trustee"). (If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives," as used herein,
shall each be deemed to refer to such firm or firms.)
2. Representations and Warranties of the Company. The Company represents
and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act") (File No. 333-
____), which has become effective, for the registration under the
Securities Act of the Securities. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(i) under the Securities Act and
complies in all other material respects with said Rule. The Indenture is
duly qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the Company has duly authorized the issuance of
the Securities. The Company proposes to file with the Commission pursuant
to Rule 424(b)(2) or (b)(5) under the Securities Act a supplement to the
form of prospectus included in registration statement File No. 333-_____
relating to the Securities and the plan of distribution thereof or (b), if
the Company elects to rely on Rule 434 under the Securities Act, a Term
Sheet (as such term is hereinafter defined) relating to the Securities that
shall contain such information as is required or permitted by Rules 434 and
424(b) under the Securities Act. The registration statement File No.
333-_____ , including the exhibits thereto, is hereinafter called the
"Registration Statement"; (i) the prospectus in the form in which it
appears in registration statement File No. 333-_____ is hereinafter called
the "Basic Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to Rule
424(b)(2) or (b)(5) (including the Basic Prospectus as so supplemented) or
(ii), if the Company elects to rely on Rule 434 under the Securities Act,
in the form of the Term Sheet as first filed with the Commission pursuant
to Rule 424(b)(7) (together with the Basic Prospectus), is hereinafter
called the "Final Prospectus". Any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424(a) is hereinafter
called the "Preliminary Final Prospectus". Any abbreviated term sheet that
satisfies the requirements of Rule 434 under the Securities Act is
hereinafter called the "Term Sheet." Any reference
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herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, and deemed to be incorporated therein
by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Securities Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and at the
Closing Date (as hereinafter defined), (i) the Registration Statement, as
amended as of any such time, the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the Securities Act,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the Exchange Act and the respective rules and regulations thereunder
and (ii) neither the Registration Statement, as amended as of any such
time, nor the Final Prospectus, as amended or supplemented as of any such
time, will contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee, (ii) information,
if any, contained in the Registration Statement or Final Prospectus
relating to The Depository Trust Company ("DTC") and its book-entry system,
or (iii) the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation of
the Registration Statement and the Final Prospectus.
(c) The financial statements of the Company and its consolidated
subsidiaries included in the Registration Statement fairly present the
financial condition of the Company and its consolidated subsidiaries as of
the dates indicated and the results of operations and cash flow for the
periods therein specified; and said financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise
stated therein. As used herein, "consolidated subsidiaries" means each
subsidiary of the Company which is included in the consolidated financial
statements of the Company contained in its annual report to shareholders
for 2001 in accordance with the consolidation policies set forth therein or
which would have been so included if it had been a subsidiary of the
Company as of the date of such consolidated financial statements, and each
other subsidiary of the Company which is included in consolidated financial
statements of the Company prepared from time to time thereafter.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus and prior to
the Closing Date hereinafter mentioned, except as set forth or contemplated
in the Final Prospectus, (1) neither the Company nor any of its
consolidated subsidiaries has
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entered into any transaction not in the ordinary course of business which
is material to the Company and its consolidated subsidiaries, considered as
a whole, (2) there has been no material adverse change in the properties,
business, financial condition or results of operations of the Company and
its consolidated subsidiaries, considered as a whole, and (3) no legal or
governmental proceeding, which has or will have materially affected the
Company or any of its consolidated subsidiaries, considered as a whole, or
the transactions contemplated by this Agreement, has been or will have been
instituted or threatened.
(e) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not conflict with or result in a
breach of any of the terms and provisions of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party, or the Restated Certificate of
Incorporation or By-Laws of the Company as presently in effect, or any
order, rule or regulation applicable to the Company of any court or any
federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or its properties.
(f) The Securities have been duly and validly authorized and, when
issued, authenticated and delivered against payment therefor in accordance
with the terms of the Indenture and this Agreement, will constitute valid
and legally binding obligations of the Company enforceable in accordance
with their terms and entitled to the benefits of the Indenture, except as
enforcement thereof may be limited by applicable bankruptcy, insolvency,
moratorium and other laws affecting the enforceability of creditors' rights
and general principles of equity, and will conform to the descriptions
thereof contained in the Final Prospectus. The Indenture has been duly and
validly authorized by the Company and will be a valid and legally binding
agreement of the Company enforceable in accordance with its terms, except
as enforcement thereof may be limited by applicable bankruptcy, insolvency,
moratorium and other laws affecting the enforceability of creditors' rights
and general principles of equity. The Indenture conforms to the description
in the Final Prospectus, and is duly qualified under the Trust Indenture
Act.
(g) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Final Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Act").
3. Sale, Purchase and Delivery of Securities. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, the Company hereby agrees to sell to the
Underwriters, severally and not jointly, and each Underwriter, severally and not
jointly (unless otherwise indicated on Schedule I hereto), agrees to purchase
from the Company, at the purchase price set forth in Schedule I hereto, the
principal amount of the Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides for the sale of
Securities pursuant to delayed delivery arrangements, the respective principal
amounts of Securities to be purchased by the Underwriters shall be as set forth
in Schedule II hereto, less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters are
herein sometimes called the "Underwriters' Securities" and Securities to be
purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay
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to the Representatives, for the account of the Underwriters, on the Closing
Date, the percentage set forth in Schedule I hereto of the principal amount of
the Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the Company may
otherwise agree, each such Delayed Delivery Contract must be for not less than
the minimum principal amount set forth in Schedule I hereto and the aggregate
principal amount of Contract Securities may not exceed the maximum aggregate
principal amount set forth in Schedule I hereto. The Underwriters will not have
any responsibility in respect of the validity, enforceability or performance of
Delayed Delivery Contracts. The principal amount of Securities to be purchased
by each Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total principal amount of
Contract Securities as the principal amount of Securities set forth opposite the
name of such Underwriter bears to the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto, less the aggregate principal amount of Contract Securities.
Delivery of and payment for the Underwriters' Securities shall be made at
the office, on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company in Federal (same day) funds,
or, if so indicated on Schedule I hereto, in New York Clearinghouse (same day)
funds. Certificates for the Underwriters' Securities shall be registered in such
names and in such denominations as the Representatives may request not less than
two full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
If so provided in Schedule I hereto, Underwriters' Securities will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of the Company with DTC or DTC's designated
custodian. In such case, (a) delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters by causing DTC to credit the Underwriters' Securities to the
account of the Representatives at DTC, and (b) the Company will cause the
certificates representing the Underwriters' Securities to be made available to
the Representatives for inspection not later than 1:00 P.M., New York City time,
on the business day prior to the Closing Date at the office of DTC or its
designated custodian.
4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing, and
the Company will not file any
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such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will promptly cause the
Final Prospectus to be filed with the Commission pursuant to Rule 424
and/or Rule 434 under the Securities Act. The Company will promptly advise
the Representatives (i) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424 and/or Rule 434 under the
Securities Act, (ii) when any amendment to the Registration Statement
relating to the Securities shall have become effective, (iii) of any
request by the Commission for any amendment of the Registration Statement
or amendment of or supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly
upon the request of the Representatives, any amendments or supplements to
the Registration Statement or Final Prospectus which, in the opinion of
counsel for the Underwriters, may be necessary to enable the several
Underwriters to continue the sale of the Securities, and the Company will
use its best efforts to cause any such amendments to become effective and
any such supplements to be filed with the Commission and approved for use
by the Underwriters as promptly as possible. If at any time when a
prospectus relating to the Securities is required to be delivered under the
Securities Act, any event relating to or affecting the Company occurs as a
result of which the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statement therein not misleading, or if
it is necessary at any time to amend or supplement the Final Prospectus to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or
which will effect such compliance. For the purposes of this paragraph (b),
the Company will furnish such information with respect to itself as the
Representatives may from time to time reasonably request.
(c) As soon as practicable, but not later than 90 days after the end
of the 12-month period beginning at the end of the current fiscal quarter
of the Company, the Company will make generally available to its security
holders and you an earnings statement covering a period of at least twelve
months beginning not earlier than said effective date which shall satisfy
the provisions of Section 11(a) of the Securities Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto and documents incorporated by reference
therein) and each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will furnish such information and execute such
instruments as may be required to qualify the Securities for sale under the
securities or blue sky laws of such jurisdictions within the United States
as you designate, will continue such qualifications in effect so long as
required for distribution and will arrange for the determination of the
legality of the Securities for purchase by institutional investors.
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The Company shall not be required to register or qualify as a foreign
corporation nor, except as to matters and transactions relating to the
offer and sale of the Securities, consent to service of process in any
jurisdiction.
(f) So long as the Securities shall be outstanding, the Company will
deliver to you (i) as soon as practicable after the end of each fiscal
year, consolidated balance sheets, statements of income, retained earnings
and cash flows of the Company and its consolidated subsidiaries, as at the
end of and for such year and the last preceding year, all in reasonable
detail and audited by independent public accountants, (ii) as soon as
practicable after the end of each of the first three quarterly periods in
each fiscal year, unaudited consolidated balance sheets, statements of
income, retained earnings and cash flows of the Company and its
consolidated subsidiaries, as at the end of and for such period and for the
comparable period of the preceding year, all in reasonable detail, (iii) as
soon as available, all such proxy statements, financial statements and
reports as the Company shall send or make available to its stockholders
generally, and (iv) copies of all such annual, periodic and current reports
as the Company or any subsidiary shall file with the Commission or any
securities exchange.
(g) The Company will pay all costs and expenses in connection with the
transactions herein contemplated, including, but not limited to, the fees
and disbursements of its counsel; the fees, costs and expenses of
preparing, printing and delivering the Indenture and the Securities; the
fees, costs and expenses of the Trustee; accounting fees and disbursements;
the costs and expenses in connection with the qualification or exemption of
the Securities under state securities or blue sky laws, including filing
fees and reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with any Blue Sky Memorandum; the
costs and expenses in connection with the preparation, printing and filing
of the Registration Statement (including exhibits thereto) and the Basic,
Preliminary Final, and Final Prospectus, the preparation and printing of
this Agreement and the furnishing to the Underwriters of such copies of
each prospectus as the Underwriters may reasonably require; and the fees of
rating agencies. It is understood, however, that, except as provided in
this Section and in Sections 7 and 8 hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel and
any advertising expenses connected with any offers they may make.
(h) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any debt securities covered by the Registration
Statement or any other registration statement filed under the Securities
Act.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the written statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or shall be
pending, or, to the knowledge of the Company, shall be contemplated by the
Commission.
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(b) No event, nor any material adverse change in the condition of the
Company, financial or otherwise, shall have occurred, nor shall any event
exist, which makes untrue or incorrect any material statement or
information contained in the Registration Statement or the Final Prospectus
or which is not reflected in the Registration Statement or the Final
Prospectus, but should be reflected therein in order to make the statements
or information contained therein not misleading.
(c) You shall have received at the Closing Date (or prior thereto as
indicated) the following:
(i) An opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President,
General Counsel and Secretary, or a Vice President and Associate
General Counsel of the Company, dated the Closing Date, to the effect
that:
(A) 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 own its
properties and conduct its business as set forth in the Final
Prospectus.
(B) The Indenture has been duly and validly authorized,
executed and delivered by the Company and the Trustee, is duly
qualified under the Trust Indenture Act, and is a valid and
legally binding agreement of the Company enforceable in
accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, moratorium and
other laws affecting the enforceability of creditors' rights and
general principles of equity.
(C) The Securities have been duly and validly authorized by
all necessary corporate action and, when duly executed and issued
on behalf of the Company, duly authenticated by the Trustee or
the Trustee's authenticating agent, and duly delivered to the
several Underwriters against payment therefor in accordance with
the provisions of this Agreement, in the case of the
Underwriters' Securities, or to the purchasers thereof pursuant
to Delayed Delivery Contracts, in the case of Contract
Securities, will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms and
entitled to all the benefits of the Indenture, except as
enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of
equity.
(D) The Indenture and the Securities conform as to legal
matters with the statements concerning them made in the Final
Prospectus, and such statements accurately set forth the
provisions thereof required to be set forth in the Final
Prospectus.
(E) This Agreement and any Delayed Delivery Contracts have
been duly and validly authorized, executed and delivered by the
Company.
(F) (1) The Registration Statement and any amendments
thereto have become effective under the Securities Act, and, to
the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement, as
amended, has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the
Securities Act; (2) the Registration Statement, the Final
Prospectus, and each amendment thereof or supplement thereto
(except for the financial statements and other financial data
included therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Exchange Act and the
respective rules thereunder; (3) such counsel
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has no reason to believe that either the Registration Statement or the
Final Prospectus, or any such amendment or supplement, contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; the descriptions in the Registration Statement
and Final Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly present the
information required to be shown; and (4) such counsel does not know
of any legal or governmental proceedings required to be described in
the Final Prospectus which are not described as required, nor does
such counsel know of any contracts or other documents of a character
which are required to be described in the Registration Statement or
the Final Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
(G) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the
fulfillment of the terms hereof or of any Delayed Delivery Contracts
will not result in any breach of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust
or other agreement or instrument to which, to the knowledge of such
counsel, the Company is a party, or the Restated Certificate of
Incorporation or By-Laws of the Company as presently in effect or, to
the knowledge of such counsel, any order, rule or regulation
applicable to the Company of any court or of any federal or state
regulatory body or administrative agency or other governmental body
having jurisdiction over the Company or its properties.
(H) No authorization, approval, consent or other action of any
governmental authority or agency is required in connection with the
sale of the Securities as contemplated by this Agreement or in any
Delayed Delivery Contracts except such as may be required under the
Securities Act or under state securities or blue sky laws.
(ii) Such opinion or opinions of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriters, dated the Closing Date, with respect to the
sufficiency of all corporate proceedings and other legal matters relating
to this Agreement, any Delayed Delivery Contracts, the validity of the
Securities, the Registration Statement, the Final Prospectus and other
related matters as you may reasonably request.
The Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to render
their opinions. In connection with such opinions, such counsel may rely on
representations or certificates of officers of the Company as to factual
matters.
(iii) A certificate of the President or a Vice President, and the
Chief Financial Officer of the Company or its Treasurer, dated the Closing
Date, to the effect that:
(A) The representations and warranties of the Company in Section
2 of this Agreement are true and correct on and as of the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date.
(B) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
the respective signers of the certificate, are contemplated under the
Securities Act.
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(C) The signers of the certificate have carefully examined
the Registration Statement and the Final Prospectus; neither the
Registration Statement, the Final Prospectus nor any amendment or
supplement thereto includes, as of the Closing Date, any untrue
statement of a material fact or omits, as of the Closing Date, to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading; since
the latest respective dates as of which information is given in
the Registration Statement, there has been no material adverse
change in the financial position, business or results of
operations of the Company and its consolidated subsidiaries,
considered as a whole, except as set forth in or contemplated by
the Final Prospectus; and since the effective date of the
Registration Statement, as amended, no event has occurred which
is required to be set forth in the Final Prospectus which has not
been so set forth.
(iv) A letter from Ernst & Young LLP, dated the Closing Date,
addressed to you substantially in the form heretofore approved by you.
(d) Prior to the Closing Date, the Company shall have furnished to
you such further certificates and documents as you may reasonably request.
(e) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any condition of the Underwriters' obligations hereunder required to be
satisfied prior to the Closing Date is not so satisfied, this Agreement may be
terminated by you by notice in writing or by facsimile transmission to the
Company.
In rendering the opinions described in Sections 5(d)(i) and (ii) above, ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, other counsel for the Company, and counsel for the Underwriters,
may limit his or her opinion to the laws of the United States of America, the
laws of the State of Illinois, and the General Corporation Law of the State of
Delaware.
All such opinions (including opinions, if any, of local counsel),
certificates, letters and documents will be in compliance with the provisions
hereof only if they are in all material respects satisfactory to you and to
counsel for the Underwriters, as to which both you and such counsel shall act
reasonably. The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you request.
You, on behalf of the Underwriters, may waive in writing the compliance by
the Company of any one or more of the foregoing conditions or extend the time
for their performance.
6. Representation of the Underwriters. Each of the Underwriters severally
represents and warrants to the Company that the information furnished to the
Company in writing by such Underwriter or by you expressly for use in the
preparation of the Registration Statement or the Final Prospectus does not, and
any amendments thereof or supplements thereto thus furnished will not, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
7. Termination of Agreement. This Agreement may be terminated by you on
behalf of the Underwriters, by notice to the Company, at any time at or prior to
the Closing Date if (i) trading in the Company's common stock shall have been
suspended by the Commission or the New York Stock Exchange for a period of 24
hours or more or trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, in either case to such a degree
as would in the reasonable judgment of the Agent
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which is party to such Agreement materially adversely affect the market for the
Notes or a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States or with respect to
Clearstream or Euroclear systems in Europe; (ii) a general moratorium on
commercial banking activities in the State of New York or the United States
shall have been declared by Federal authorities; or (iii) there has occurred any
material outbreak or material escalation of hostilities involving the United
States or any other national or international calamity or crisis, of such
magnitude and severity in its effect on the financial markets of the United
States, in the reasonable judgment of an Agent which is party to such Agreement,
as to make it impracticable or inadvisable to market the Notes or to enforce
contracts for the sale of the Notes.
If this Agreement shall be terminated by you because of any failure on the
part of the Company to comply with any of the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable
to perform its obligations under this Agreement, the Company shall pay, in
addition to the costs and expenses referred to in Section 4(h), all reasonable
out-of-pocket expenses incurred by the Underwriters in contemplation of the
performance by them of their obligations hereunder, including but not limited to
the reasonable fees and disbursements of counsel for the Underwriters, the
Underwriters' reasonable printing and traveling expenses, and postage and
telephone charges relating directly to the offering contemplated by the Final
Prospectus, and also including advertising expenses incurred after the effective
date of the Registration Statement, it being understood that such out-of-pocket
expenses shall not include any compensation, salaries or wages of the officers,
partners or employees of any of the Underwriters.
The Company shall not in any event be liable to the several Underwriters
for damages on account of loss of anticipated profits arising out of the
transactions contemplated by this Agreement.
8. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter either within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject, under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereof, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in the
preparation thereof; and provided, further, that the foregoing indemnification
with respect to the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities, if such Underwriter
failed to send or give copies of the Final Prospectus, as amended or
supplemented, excluding documents incorporated therein by reference, to such
person at or prior to the written confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Securities Act,
the untrue statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented) and the Final
10
Prospectus (as amended or supplemented) so corrected was delivered to such
Underwriter a reasonable amount of time in advance of the delivery of such
written confirmation. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally, but not jointly, agrees to indemnify and
hold harmless the Company, each person, if any, who controls the Company either
within the meaning of the Securities Act or the Exchange Act, each of its
directors and each of its officers who has signed the Registration Statement,
against any losses, claims, damages or liabilities to which the Company, any
such controlling person or any such director or officer may become subject,
under the Securities Act, the Exchange Act, or otherwise, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through you specifically for use in
the preparation of the documents referred to in the foregoing indemnity. The
Company acknowledges that the statements set forth under the heading "Plan of
Distribution" (exclusive of the sixth paragraph thereof) and, if Schedule I
hereto provides for sale of Securities pursuant to delayed delivery
arrangements, in the last sentence under the heading "Delayed Delivery
Arrangements" in the Final Prospectus constitute the only information furnished
in writing by or on behalf of the several Underwriters for inclusion in the
Final Prospectus, and you confirm that such statements are correct. This
indemnity agreement will be in addition to any liability which each such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those available
to the indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt by such indemnified party of notice from the indemnifying
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives of the Underwriters in the
case of subparagraph (a), representing the indemnified parties under
subparagraph (a) or (b), as the case may be, who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; provided, further, that, with respect to legal and other
expenses incurred by an indemnified party for which an indemnifying party shall
be liable hereunder, all such legal fees and expenses shall be reimbursed by the
indemnifying party as they are incurred.
11
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be insufficient or unavailable, the Company and the Underwriters shall
severally contribute to the aggregate of such losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of the
Securities set forth in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (i) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
the Securities Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Securities Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to clause (i) of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If the Underwriters' obligations to purchase
Securities pursuant to Section 3 hereof are several and not joint and if any one
or more Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement and unless otherwise provided in Schedule
I hereto, the remaining Underwriters shall be obligated severally to take up and
pay for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations and warranties of the Company or its
officers and the several Underwriters, set forth in or made pursuant to this
Agreement, will remain in full force and effect, regardless of any investigation
made by or on
12
behalf of any Underwriter, the Company or any of its officers, directors or any
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or sent by facsimile transmission and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or sent by facsimile transmission and confirmed to the Company at ▇▇▇
▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of the Treasurer, with a
copy to the Controller.
12. Successors; Governing Law. This Agreement will inure to the benefit of
and be binding upon the parties hereto and the officers, directors and
controlling persons referred to in Section 8 hereof and their respective
successors, assigns, heirs, executors and administrators, and no other persons
will have any right or obligation hereunder. The terms "successors" and
"assigns" as used herein shall not include a purchaser as such from any
Underwriter. This Agreement shall be governed by and construed and enforced in
accordance with, the internal laws of the State of Illinois.
13. Business Day. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
13
If the foregoing is in accordance with your understanding of our agreement,
sign and return to us the enclosed duplicate hereof, whereupon it will become a
binding agreement between the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇'▇ CORPORATION
By: __________________________________
The foregoing Underwriting Agreement is hereby
confirmed and accepted by us in Chicago, Illinois,
acting on behalf of ourselves, the other Representatives
(if any), and the several Underwriters (if any) named in
Schedule II annexed hereto, as of the date first above written.
[Name of Representative]
By: ______________________________________________
Date:
14
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representatives:
Title, Purchase Price and Description of Securities:
Title:
Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriter
(include accrued interest or
amortization if applicable):
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
Redemption Provisions:
Sinking Fund Provisions:
Other Provisions:
Sale and Delivery Provisions under Section 3:
Obligation to Purchase is: several and not joint
several and not joint; provided, however
that, notwithstanding the provisions of
Section 9 of the Underwriting Agreement,
the Representative(s) listed above will,
subject to the terms and conditions
hereof, purchase or cause to be
purchased any Securities which any
defaulting Underwriter or Underwriters
have agreed but failed or refused to
purchase pursuant to Section 3 hereof
joint and several
Payment to Be Made in: New York Clearinghouse (same day) funds
or Federal (same day) funds
Delivery of Securities: Physical delivery to Underwriters through
Representatives
or delivery to Underwriters through
facilities of DTC by delivery to DTC of
one or more definitive global securities
in book-entry form
Closing Date, Time and Location:
[Delayed Delivery Arrangements:
Payment to Be Made in: New York Clearinghouse (same day) funds
or Federal (same day) funds
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:]
Address for Notice to Representatives:
SCHEDULE II
Principal
Underwriters Amount
------------
$
----------
Total $
SCHEDULE III
Delayed Delivery Contract
_______________________, 2002
[Insert name and address
of lead Representative]
Dear Ladies and Gentlemen:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇▇▇'▇ Corporation (the
"Company"), and the Company agrees to sell to the undersigned, on
______________, 2002, (the "Delivery Date"), $ ______________principal amount of
the Company's (the "Securities") offered by the Company's Final Prospectus dated
____________, 2002, receipt of a copy of which is hereby acknowledged, at a
purchase price of ____% of the principal amount thereof, plus accrued interest,
if any, thereon from _________, 2002, to the date of payment and delivery, and
on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 A.M. on the Delivery Date to or upon the order of the Company
in New York Clearinghouse (same day) funds or Federal (same day) funds, as
specified in Schedule I to the Underwriting Agreement referred to in the Final
Prospectus mentioned above, at your office or at such other places as shall be
agreed between the Company and the undersigned upon delivery to the undersigned
of the Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written communication addressed to the Company not less than five full business
days prior to the Delivery Date. If no request is received, the Securities will
be registered in the name of the undersigned and issued in a denomination equal
to the aggregate principal amount of Securities to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) and
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed and enforced in
accordance with, the internal laws of the State of Illinois.
Very truly yours,
_______________________________________________
(Name of Purchaser)
By: ___________________________________________
(Signature and Title of Officer)
_______________________________________________
(Address)
Accepted:
▇▇▇▇▇▇▇▇'▇ CORPORATION
By: __________________________________
(Authorized Signature)
