Exhibit 1.1
MINNESOTA MINING AND MANUFACTURING COMPANY
Debt Securities
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto.
Dear Sirs:
Minnesota Mining and Manufacturing Company, a Delaware corporation
(the "Company"), proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its Securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture dated as
of ____________, ____ (the "Indenture"), between the Company and
__________________________, 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.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement or statements (the file number or numbers of which is or
are set forth in Schedule I hereto), including a related preliminary
prospectus, on such Form for the registration under the Act of the
offering and sale of the Securities. The Company may have filed one
or more amendments thereto, including the related preliminary
prospectus, and has filed a preliminary prospectus in accordance
with Rules 415 and 424(b)(5), each of which has previously been
furnished to you. The Company will next file with the Commission one
of the following: (i) prior to effectiveness of such registration
statement, a further amendment thereto, including the form of final
prospectus, (ii) a final prospectus in accordance with Rules 430A
and 424(b)(1) or (4), or (iii) a final prospectus in accordance with
Rules 415 and 424(b)(2) or (5). In the case of clause (ii), the
Company has included in such registration statement or statements,
as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be
included in the Prospectus with respect to the Securities and the
offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall
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include all Rule 430A Information and, except to the extent the
Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. If the Registration
Statement contains the undertaking specified by Regulation S-K Item
512(a), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term the "Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Preliminary
Prospectus" shall mean any preliminary prospectus referred to in the
preceding paragraph and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information. "Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean
the registration statement or statements referred to in the preceding
paragraph, including incorporated documents as of the filing of the
Company's Quarterly Report on Form 10-Q for the three month period
ended __________________, exhibits and financial statements, in the
form in which it or they has or have or shall become effective and,
in the event any post-effective amendment thereto becomes effective
prior to the Closing Date (as hereinafter defined), shall also mean
such registration statement or statements as so amended. Such term
shall include Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424",
"Rule 430A" and "Regulation S-K" refer to such rules under the Act.
"Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule
430A. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the 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 (the "Exchange Act") on or before the effective date of
the Registration Statement or the date of such Preliminary Prospectus
or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of an document
under the Exchange Act after the effective date of the Registration
Statement, or the date of any Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
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(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the rules thereunder; on the
Effective Date, the Registration Statement did not or will not
contain any untrue statement of a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
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 and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement
or the Prospectus (or any 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 or the Prospectus (or any supplement thereto).
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the respective principal amounts of the Securities set forth
opposite each respective 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 to the Representatives, for the
account of underwriters, on the Closing Date, the
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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 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.
3. Delivery and Payment. 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
8 hereof (such date and time of delivery and payment for the Securities being
called the "Closing Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective account 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 by certified or official bank check or checks payable, or wire
transfers, in immediately available funds. The Debentures shall be delivered in
definitive global form through the facilities of The Depository Trust Company.
4. Agreements.
(A) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, and any amendment thereof, if not effective
at the Execution Time, to become effective. If the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Prospectus is otherwise required under Rule 424(b),
the Company will file the Prospectus, properly completed, pursuant
to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing.
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The Company will promptly advise the Representatives (i) when the
Registration Statement shall have become effective, (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 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. The Company will not file any
amendment of the Registration Statement or supplement to the
Prospectus unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend or supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company will give the
Representatives immediate notice of the occurrence of such event and
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 an
amendment which will effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 45 days after the end of the 12-month period beginning at
the end of the current fiscal quarter of the Company, an earnings
statement (which need not be audited) of the Company and its
subsidiaries, covering a period of at least 12 months beginning
after the end of the current fiscal quarter of the Company, which
will satisfy the provisions of Section 11(a) of the 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 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 Act, as many copies of
any Preliminary Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representatives
may reasonably request.
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(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities
and will arrange for the determination of the legality of the
Securities for purchase by institutional investors.
(f) Until the earlier of the day on which the distribution of
the Securities is completed or 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 Act.
(B) The several Underwriters agree with the Company that:
(a) The several Underwriters will pay the expenses of printing
all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and
disbursements of outside counsel for the Company, if any, and the
Trustee relating to the offering.
(c) The several Underwriters will pay any fees of Xxxxx'x
Investors Service, Inc. and Standard & Poor's Ratings Group, a
division of the XxXxxx-Xxxx Companies, Inc. relating to the rating
of the Securities.
(d) The several Underwriters will pay the fees and
disbursements of PricewaterhouseCoopers LLP relating to the
preparation of the letter required by Section 5(e) of this
Agreement.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, 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 statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement shall have
become effective not later than (i) 6:00 P.M. New York City time, on
the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 P.M. New York City time
on such date or (ii) 12:00 Noon on the business day following the
day on which the
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public offering price was determined, if such determination occurred
after 3:00 P.M. New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Prospectus shall have been filed in the manner and
within the time period required by Rule 424(b); and 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 threatened.
(b) The Company shall have furnished to the Representatives:
(i) the opinion of the General Counsel, an Assistant General
Counsel, or other 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
full corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified to do business as
a foreign corporation and is in good standing under the laws of each
jurisdiction within the United States which requires such qualifications wherein
it owns or leases material properties or conducts material business;
(B) the Securities conform in all material respects to the
description thereof contained in the Prospectus;
(C) the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and constitutes a legal,
valid and binding obligation enforceable against the Company in accordance with
its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting creditors' rights
generally from time to time in effect, and subject, as to enforceability, to
general principle of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the Underwriters' Securities, or by
the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of
any Contract Securities, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and
other similar laws affecting creditors' rights generally from time to time in
effect);
(D) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
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subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be described in
the Registration Statement or Prospectus, or to be filed as an exhibit, which is
not described or filed as required;
(E) the Registration Statement and any amendments thereto have
become effective under the Act; any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued, no proceedings for that purpose have
been instituted or are pending or contemplated under the Act;
(F) this Agreement and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(G) no authorization, approval or other action by, and no notice to,
consent of, order of, or filing with, any relevant United States governmental
authority or regulatory body is required for the consummation of the
transactions contemplated herein or in any Delayed Delivery Contracts, except
such as have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities and such other approvals (specified in such
opinion) as have been obtained;
(H) such counsel has no reason to believe that (1) the Registration
Statement and the Prospectus (except the financial statements and the notes
thereto and other information of an accounting or financial nature included
therein, and the Statement of Eligibility (Form T-1) included as an exhibit to
the Registration Statement, as to which such counsel need express no view) were
not appropriately responsive in all material respects to requirements of the Act
and the applicable rules and regulations of the Commission thereunder and (2)
the Registration Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as amended or
supplemented, contains any untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (in each case except
for the financial statements and the notes thereto and other information of an
accounting or financial nature included therein, as to which such counsel need
express no view); and
(I) none of the issue and sale of the Securities, the consummation
of any other of the transactions herein contemplated or the fulfillment of the
terms hereof or of any Delayed Delivery Contracts will conflict with, result in
a breach of, or constitute a default under, the charter or by-laws of the
Company or the terms of any indenture or other agreement or instrument known to
such counsel and to which the Company is a party or bound, or any decree or
regulation known to such counsel to be applicable to the
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Company of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company.
(c) The Representatives shall have received from
___________________, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the Securities,
the Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the principal financial or accounting
officer (or Vice President and Treasurer) of the Company, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to a
letter previously delivered to one or more of the Representatives), dated as of
the Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published rules and
regulations thereunder, that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to them and stating in
effect that:
(i) in their opinion the audited financial statements and
schedules thereto included or incorporated in the Registration
Statement and the Prospectus and reported on by them comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder with respect to financial statements
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and financial statement schedules included or incorporated in annual
reports on Form 10-K under the Exchange Act;
(ii) on the basis of a reading of the unaudited financial
statements included or incorporated in the Registration Statement and
the Prospectus and of the latest unaudited financial statements made
available by the Company and its subsidiaries; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of the Company and
the Subsidiaries since the date of the latest audited balance sheet,
through a specified date not more than five business days prior to
the date of the letter; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
of the Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent financial statements
incorporated in the Registration Statement and the Prospectus,
nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus do
not comply as to form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited financial
statements are not stated on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statement and the Prospectus;
or
(2) with respect to the period subsequent to the date
of the most recent financial statements incorporated in the
Registration Statement and the Prospectus, there were, at a
specified date not more than five business days prior to the
date of the letter, any increases in long-term debt of the
Company and its subsidiaries or decreases in the capital stock
of the Company or decreases in the stockholders' equity of the
Company and its subsidiaries as compared with the amounts shown
on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Prospectus,
except in all instances for increases or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
and
(iii) they have performed certain other procedures as a
result of which they determined that the information described in a
schedule to be delivered on behalf of the Underwriters of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general ledger of the Company) set forth in the Registration
Statement, as amended, the
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Prospectus, as amended or supplemented, and in Exhibit __ to the
Registration Statement (including selected accounting, financial or
statistical information included or incorporated in the Company's
Annual Report on Form 10-K incorporated in the Prospectus or any of
the Company's Quarterly Reports on Form l0-Q incorporated therein),
agrees with the general ledger of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (e) include any
supplements thereto at the date of the letter.
(f) Subsequent to the respective dates of which information is given
in the Registration Statement and the Prospectus, there shall not have been (i)
any change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 5 or (ii) any change, or any development involving
a prospective change, in or affecting the business or properties of the Company
and its subsidiaries considered as one enterprise the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement and the Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(h) 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.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Securities by Moody's Investor's Service,
Inc. ("Moody's") or Standard & Poor's Corporation ("S&P") and neither Moody's
nor S&P shall have publicly announced that it has placed any of the Securities
on a credit watch with negative implications.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal,
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inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at common
law 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 a
material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the
Prospectus, or in any amendment thereof 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 agrees
to reimburse each such indemnified party for any legal or other
expenses reasonably incurred, as incurred, by them in connection
with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) 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 any such
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
connection with the preparation thereof, and (ii) such indemnity
with respect to any Preliminary 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 which are the subject
thereof if such person did not receive a copy of the Prospectus (or
the Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of
such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected
in the Prospectus (or the Prospectus as supplemented prior to the
confirmation of the sale of such Securities to such person). This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration
12
Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, 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 the Representatives specifically for use in the
preparation of the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, 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 7. 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 appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action;
provided, however, 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 additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
appoint counsel to defend such action and approval by the
indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 7 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 separate counsel 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 (in addition to any local counsel),
approved by the Representatives in the case of paragraph (a) of this
Section 7, representing the indemnified parties under such paragraph
(a) who are parties to such action), (ii) the indemnifying party
shall not have employed counsel reasonably 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; and
except that, if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such clause
(i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) of this Section 7 is due in accordance with its terms but is for
any reason held by a court to be unavailable
13
from the Company on grounds of policy or otherwise, the Company and
the Underwriters shall contribute to the aggregate 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 on Schedule I hereto and
the Company is responsible for the balance; provided, however, that
(y) 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 (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section
7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the 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
clauses (y) and (z) 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).
8. Default by an Underwriter. 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, 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 bears to the aggregate amount
of Securities set forth 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 non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not
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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 non-defaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Representatives, impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
agreement representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 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 telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it, at 3M Financial Management Company, 3M Center,
Xxxxxxxx 000-0X-00, Xx. Xxxx, Xxxxxxxxx 00000-0000; attention of the Investment
Operations.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
MINNESOTA MINING AND MANUFACTURING
COMPANY
By: ___________________________________
The foregoing Agreement is hereby confirmed and accepted on the date specified
in Schedule I hereto.
By: ___________________________________
By: ___________________________________
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
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SCHEDULE I
Debt Securities
Underwriting Agreement dated
Registration Statement No. 333-
Representatives:
Title of Securities:
Principal Amount:
Interest Rate:
Purchase Price:
Offering Price:
Interest Payment Dates:
Subordination Provisions:
Optional Redemption:
Sinking Fund Provisions:
Delayed Delivery:
Closing Date and Time:
Method of Payment of Underwriters' Securities:
Other provisions of or Amendments to Underwriting Agreement:
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Section 5(h) provisions, if any:
Delayed Delivery: [None]
[Underwriters' commission shall be __% of the principal amount of Designated
Securities for which Delayed Delivery Contracts have been entered into and the
check given in payment of such commission shall be drawn to the order of
_____________]
[Maximum aggregate principal amount of Designated Securities to be offered and
sold pursuant to Delayed Delivery Contracts: [$]_______________]
[Minimum principal amount of each Delayed Delivery Contract: [$]______________]
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SCHEDULE II
Underwriter __________________________________
Amount To Be Purchased __________________________________
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SCHEDULE III
Delayed Delivery Contract
[Date]
[Insert name and address of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Minnesota Mining and
Manufacturing Company (the "Company"), and the Company agrees to sell to the
undersigned, on ________, _____, (the "Delivery Date"), principal amount of the
Company's debt securities (the "Securities") offered by the Company's Prospectus
dated ______, ____ , and related Prospectus Supplement dated ________ , ____,
receipt of a copy of which is hereby acknowledged, at a [purchase price of ___%
of the] [principal amount] [thereof, plus] [accrued interest] [amortization of
original issue discount], if any, thereon from _________, ____ , 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 AM, New York City time, on the Delivery Date to or
upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount or number of Securities to
be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the Company
to sell and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the failure
thereof) that (1) the purchase of Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the 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 or number of Securities as is to be sold to them pursuant to
the Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above.
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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 in accordance with
the laws of the State of New York without reference to choice of law principles.
Very truly yours,
__________________________________
(Name of Purchaser)
By: ______________________________
(Signature and Title of Officer)
__________________________________
(Address)
Accepted:
Minnesota Mining and Manufacturing Company
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