Exhibit 1
Sunoco, Inc.
Debt Securities
Preference Stock
Common Stock
Warrants
Sunoco Capital I
Sunoco Capital II
Trust Preferred Securities
UNDERWRITING AGREEMENT
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1. Introductory. (i) Sunoco, Inc., a Pennsylvania corporation (the
"Company"), proposes to issue and sell from time to time certain of its senior
unsecured debt securities, subordinated unsecured debt securities, senior and
subordinated convertible debt securities, preference stock (the "Preference
Stock"), common stock (the "Common Stock," and together with the Preference
Stock, the "Equity Securities") and warrants to purchase debt securities or
Equity Securities and (ii) Sunoco Capital I and Sunoco Capital II, each a
Delaware statutory business trust (each a "Trust" and, collectively, the
"Trusts"), propose to issue and sell from time to time certain trust preferred
securities (the "Capital Securities") of the Trust, guaranteed by the Company
pursuant to a Guarantee Agreement (the "Guarantee Agreement") to be entered into
between the Company and Bankers Trust Company (the "Guarantee Trustee") (the
Capital Securities together with the Preference Stock, the "Preferred
Securities"), each registered under the registration statement referred to in
Section 2(a) (collectively, the "Registered Securities"). The Registered
Securities constituting senior debt securities will be issued under an
indenture, dated as of June 30, 2000 (the "Senior Indenture"), between the
Company and Citibank, N.A., as Trustee, in one or more series, which series may
vary as to interest rates, maturities, redemption provisions, selling prices and
other terms. The Registered Securities constituting subordinated debt securities
will be issued under an indenture, dated as of May 15, 1994 (the "Subordinated
Indenture," and together with the Senior Indenture, the "Indentures"), between
the Company and Bankers Trust Company, as Trustee, in one or more series, which
series may vary as to interest rates, maturities, redemption provisions, selling
prices and other terms. The Registered Securities constituting Preference Stock
may be issued in one or more series, each of which series may vary as to
dividend rates, redemption provisions, selling prices and other terms.
The Registered Securities constituting Capital Securities may be issued in
one or more series, which series may vary as to distribution rate, maturities,
redemption provisions, selling prices and other terms. The Company will be the
owner of all of the beneficial ownership interests represented by common
securities (the "Common Securities") of each of the Trusts.
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Concurrently with the issuance of the Capital Securities by each Trust, each
Trust will invest the proceeds thereof in the Company's Junior Subordinated
Debentures (the "Junior Subordinated Debentures"). The Junior Subordinated
Debentures are to be issued pursuant to an indenture (the "Trust Indenture") to
be entered into between the Company and Bankers Trust Company (the "Indenture
Trustee").
Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale. If specified in a Terms
Agreement, the Company and, as the case may be, the Trust will grant to the
Underwriters an option (the "Option") to purchase up to that additional amount
of Registered Securities specified in such Terms Agreement (the "Options
Securities").
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities." The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives," as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company and, if the
Offered Securities are Capital Securities, the Trust, as of the date of each
Terms Agreement referred to in Section 3, represents and warrants to, and agrees
with, each Underwriter that:
(a) Two registration statements (No. 33-53717 and 333-_____),
including a prospectus contained in the latest such registration statement,
relating to the Registered Securities have been filed with the Securities
and Exchange Commission (the "Commission") and have become effective. Such
registration statements, as amended at the time of any Terms Agreement
referred to in Section 3, are hereinafter collectively referred to as the
"Registration Statement," and the prospectus included in the latest such
registration statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities (if they are debt securities or
Preferred Securities) and the terms of the offering of the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of
1933 (the "Act"), including all material incorporated by reference therein,
is hereinafter referred to as the "Prospectus."
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such registration statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission (the "Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they are
made, not misleading, and on the date of each Terms Agreement referred to
in Section 3, the Registration Statement and the
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Prospectus will conform in all material respects to the requirements of the
Act and the Rules and Regulations, and neither of such documents will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading; provided, however, that no representation or warranty
is made as to the Statement of Eligibility and Qualification on Form T-1 of
any trustee under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), or as to statements in, or omissions from, the
Registration Statement or the Prospectus in reliance upon, or in conformity
with, written information furnished to the Company or the Trust by any
Underwriter through the Representatives, if any, specifically for use
therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with all corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which the failure to so qualify or be in good
standing would have a material adverse effect on the business, properties,
financial position, shareholders' equity, or results of operations of the
Company and its subsidiaries on a consolidated basis (a "Material Adverse
Effect").
(d) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued and outstanding capital shares of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable.
(e) Each of the Trusts has been duly created and is validly existing
as a statutory business trust in good standing under the Business Trust Act
of the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its respective business as
described in the Prospectus, and has conducted and will conduct no business
other than the transactions contemplated by this Agreement as described in
the Prospectus; neither Trust is a party to or bound by any agreement or
instrument other than its respective Terms Agreement, the Amended and
Restated Declaration of Trust (the "Declaration"), among the Company and
Bankers Trust Company, Bankers Trust (Delaware), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Trustees"), and the agreements and
instruments contemplated by its respective Declaration and described in the
Prospectus; each Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by the applicable Terms
Agreement and the agreements and instruments contemplated by the respective
Declaration and described in the Prospectus; and neither Trust is a party
to or subject to any action, suit or proceeding of any nature.
(f) Each Declaration has been duly authorized and, when duly executed
and delivered by the Company and the Trustees, will constitute a valid and
legally binding obligation of the Company, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
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principles and will conform in all material respects to the description
thereof contained in the Prospectus.
(g) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the Company and the Guarantee Trustee, will
constitute a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles and will conform in all material respects
to the description thereof contained in the Prospectus.
(h) For purposes of this Agreement, the term "Significant Subsidiary"
shall have the meaning set forth in Rule 405 of the Rules and Regulations,
but shall exclude any subsidiary of the Company (as that term is defined in
Rule 405 of the Rules and Regulations) the major part of the business of
which consists of finance, banking, credit, leasing, real estate, financial
services or other similar services, or coal or coke operations or any
combination thereof. Each Significant Subsidiary of the Company has been
duly incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with all corporate power and
authority to own its properties and conduct its business as described in
the Prospectus; and each such Significant Subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which the failure to so qualify or be in good
standing would have a Material Adverse Effect; all of the issued and
outstanding capital stock of each Significant Subsidiary of the Company has
been duly authorized and validly issued and is fully paid, non-assessable;
and owned by the Company, directly or indirectly, free from liens,
encumbrances, equities or claims.
(i) If the Offered Securities are debt securities: the relevant
Indenture has been duly authorized and has been duly qualified under the
Trust Indenture Act; the Offered Securities have been duly authorized; and
when the Offered Securities are delivered and paid for pursuant to the
Terms Agreement on the Closing Date (as defined below) or pursuant to
Delayed Delivery Contracts (as hereinafter defined), the relevant Indenture
will have been duly executed and delivered by the Company, such Offered
Securities will have been duly executed, authenticated, issued and
delivered and will conform in all material respects to the description
thereof contained in the Prospectus and such Indenture (assuming the due
authorization, execution and delivery thereof by the trustee, or trustees,
under such Indenture) and such Offered Securities will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(j) If the Offered Securities are Preference Stock: the Offered
Securities have been duly authorized and, when the Offered Securities have
been delivered and paid for
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in accordance with the Terms Agreement on the Closing Date (as defined
below), such Offered Securities will have been validly issued, fully paid
and non-assessable and will conform in all material respects to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities.
(k) If the Offered Securities are Common Stock: the Offered Securities
and all other outstanding shares of capital stock of the Company have been
duly authorized; when the Offered Securities have been delivered and paid
for in accordance with the Terms Agreement on the Closing Date (as defined
below), such Offered Securities will have been, validly issued, fully paid
and non-assessable and will conform in all material respects to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities.
(l) If the Offered Securities are convertible: the shares of Common
Stock initially issuable upon conversion of such Offered Securities will
have been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly issued, fully paid
and non-assessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and non-assessable and will
conform in all material respects to the description thereof contained in
the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Common Stock.
(m) If the Offered Securities are Capital Securities: the Capital
Securities and the Common Securities, upon issuance and delivery and
payment therefor in the manner described herein, will be, duly authorized,
validly issued, fully paid and non-assessable and will conform in all
material respects to the descriptions of the Capital Securities and the
Common Securities contained in the Prospectus; each of the Trust Indenture
and the Guarantee Agreement has been duly authorized by the Company and,
when duly executed and delivered by the Company and, in the case of the
Indenture, the Indenture Trustee and, in the case of the Guarantee
Agreement, the Guarantee Trustee, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Junior Subordinated Debentures and the
Guarantee have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as provided in the Trust Indenture and
the Guarantee Agreement, respectively, will be duly and validly issued and
outstanding, and will constitute valid and legally binding obligations of
the Company entitled to the benefits of the Trust Indenture and the
Guarantee Agreement, respectively, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Junior Subordinated
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Debentures and the Guarantee, when issued and delivered, will conform in
all material respects to the description thereof contained in the
Prospectus.
(n) If the Offered Securities are Common Stock or are convertible into
Common Stock: except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment.
(o) If the Offered Securities are Common Stock or are convertible into
Common Stock: except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act.
(p) If the Offered Securities constitute Common Stock or are
convertible into Common Stock: the outstanding shares of Common Stock are
listed on The New York Stock Exchange (the "Stock Exchange") and the
Offered Securities (if they are Common Stock) or the Common Stock into
which the Offered Securities are convertible (if they are convertible) has
been approved for listing on subject to notice of issuance. If the Offered
Securities are debt securities or Preferred Securities, they have been
approved for listing on the stock exchange indicated in the Terms
Agreement, subject to notice of issuance.
(q) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
have been obtained and made under the Act, such as may be required under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any applicable foreign or state securities laws in connection with the
purchase and distribution of the Offered Securities by the Underwriters,
and, if the Offered Securities are debt securities, the Trust Indenture
Act, and the filing of a statement with the Department of State of the
Commonwealth of Pennsylvania with respect to any shares of Preference Stock
to be issued by the Company.
(r) The execution, delivery and performance by the Company of the
relevant Indenture (if the Offered Securities are debt securities), the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and, if the Offered Securities are debt securities or Preference
Stock, the compliance by the Company with the terms and provisions thereof,
and (if the Offered Securities are Capital Securities) the execution,
delivery and performance of the Declaration, the Common Securities and the
Capital Securities by the
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Trust, the purchase of the Junior Subordinated Debentures by the Trust from
the Company, the distribution of the Junior Subordinated Debentures upon
the liquidation of the Trust in the circumstances contemplated by the
Declaration and described in the Prospectus, and the consummation of the
transactions contemplated herein and in the Declaration and the execution,
delivery and performance by the Company of the Guarantee Agreement, the
Trust Indenture and the Junior Subordinated Debentures by the Company, the
purchase of the Common Securities by the Company from the Trust, and the
consummation by the Company of the transactions herein will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary of the Company
or, as the case may be, the Trust or any of their properties, or any
agreement or instrument to which the Company or any such Significant
Subsidiary or, as the case may be, the Trust is a party or by which the
Company or any such Significant Subsidiary is bound or to which any of the
properties of the Company or any such Significant Subsidiary or, as the
case may be, the Trust is subject, or the charter or by-laws of the Company
or any such Significant Subsidiary, and the Company or, as the case may be,
the Trust have full power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement).
(s) The Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are debt securities or Preferred Securities,
any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company and the Trust.
(t) Except as described in Section 2(u) hereof, neither the Company
nor any of its Significant Subsidiaries is in violation of any law,
ordinance, governmental rule, regulation, or court decree to which it or
its property or assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization
necessary to the ownership of its property or to the conduct of its
business, except for any violation, default or event which, individually or
in the aggregate, will not have a Material Adverse Effect.
(u) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, are reasonably
likely, individually or in the aggregate, to have a Material Adverse
Effect, or would materially and adversely affect the ability of the Company
to perform its obligations under the relevant Indenture (if the Offered
Securities are debt securities), the Terms Agreement (including the
provisions of this Agreement) or any Delayed Delivery Contracts, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened or, to
the Company's knowledge, contemplated.
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(v) The audited financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
disclosed in the Prospectus, such financial statements have been prepared
in conformity with generally accepted accounting principles in the United
States applied on a consistent basis; the unaudited financial statements
included in the Registration Statement and Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as of
the dates shown and their results of operations and cash flows for the
periods shown and, except as disclosed in the Prospectus, such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis
(except for the absence of notes), subject to normally recurring changes
resulting from year-end audit adjustments and prepared in accordance with
the instructions to SEC Form 10-Q; any schedules included in the
Registration Statement present fairly the information required to be stated
therein; and if pro forma financial statements are included in the
Registration Statement and Prospectus: the assumptions used in preparing
the pro forma financial statements included in the Registration Statement
and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(w) Except as disclosed in the Prospectus, since the date of the
latest financial statements included in the Prospectus there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(x) Neither the Company nor the Trust is and, after giving effect to
the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will be an "investment
company" as defined in the Investment Company Act of 1940.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement in writing or exchange of other written communications (the "Terms
Agreement") at each time the Company and, as the case may be, the Trust
determine to sell the Offered Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount or number of shares to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and (if the Offered Securities are debt securities or Preferred Securities) the
terms of the Offered Securities not already specified (in the relevant
Indenture, in
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the case of Offered Securities that are debt securities), including, but not
limited to, interest rate (if debt securities), dividend or distribution rate
(if Preferred Securities), maturity, any redemption provisions and any sinking
fund requirements and whether any of the Offered Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than seven full
business days thereafter as the Underwriter first named in the Terms Agreement
(the "Lead Underwriter") and the Company and, as the case may be, the Trust
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and payment
and any details of the terms of public offering that should be reflected in the
prospectus supplement relating to the offering of the Offered Securities. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Offered Securities for sale as set forth in the Prospectus.
If specified in a Terms Agreement, on the basis of the representations,
warranties and covenants herein contained, and subject to the terms and
conditions herein set forth, the Company and, as the case may be, the Trust
grant an option to the several Underwriters to purchase, severally and not
jointly, up to that amount of the Option Securities as shall be specified in the
Terms Agreement from the Company and, as the case may be, the Trust at the same
price as the Underwriters shall pay for the Offered Securities. Said option may
be exercised only to cover over allotments in the sale of the Offered Securities
by the Underwriters and may be exercised in whole or in part at any time on or
before the thirtieth day after the date of the Terms Agreement upon written or
telegraphic notice by the Representatives to the Company and, as the case may
be, the Trust setting forth the amount of the Option Securities as to which the
several Underwriters are exercising the option. The amount of Option Securities
to be purchased by each Underwriter shall be the same percentage of the total
amount of the Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Offered Securities, as adjusted by the
Representatives in such manner as the Representatives deem advisable to avoid
fractional shares/units.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company and, as the case may be, the Trust
authorize the Underwriters to solicit offers to purchase Offered Securities
pursuant to delayed delivery contracts substantially in the form of Annex I
attached hereto ("Delayed Delivery Contracts") with such changes therein as the
Company and, as the case may be, the Trust may authorize or approve. Delayed
Delivery Contracts are only to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company and, as the case may be, the Trust will pay, as compensation, to the
Representatives for the accounts of the Underwriters, the fee set forth in such
Terms Agreement in respect of the principal amount or number of shares of
Offered Securities to be sold pursuant to Delayed Delivery Contracts ("Contract
Securities"). The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts. If the Company
and, as the case may be, the Trust execute and deliver Delayed Delivery
Contracts, the Contract Securities will be deducted from the Offered Securities
to be purchased by the several Underwriters and the aggregate principal amount
or number of shares of Offered Securities to be purchased by each Underwriter
will be reduced pro rata in proportion to the principal amount or
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number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advises
the Company and, as the case may be, the Trust. The Company and, as the case may
be, the Trust will advise the Lead Underwriter not later than the business day
prior to the Closing Date of the principal amount or number of shares of
Contract Securities.
If the Offered Securities are debt securities or Capital Securities and the
Terms Agreement specifies "Book-Entry Only" settlement or otherwise states that
the provisions of this paragraph shall apply, the Company and, as the case may
be, the Trust will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") or as otherwise provided in the Terms Agreement
and registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent global securities will be held only in book-entry form through DTC,
except in the limited circumstances described in the Prospectus. Payment for the
Offered Securities shall be made by the Underwriters in Federal (same day) funds
by official check or checks or wire transfer to an account previously designated
by the Company and, as the case may be, the Trust at a bank acceptable to the
Lead Underwriter, in each case drawn to the order of ________ at the place of
payment specified in the Terms Agreement on the Closing Date, against delivery
to the Trustee as custodian for DTC of the Global Securities representing all of
the Offered Securities.
4. Certain Agreements of the Company. The Company and, as the case may be,
the Trust agree with the several Underwriters that they will furnish to counsel
for the Underwriters, one signed copy of the registration statement relating to
the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Offered Securities:
(a) The Company and, as the case may be, the Trust will file
the Prospectus with the Commission pursuant to and in accordance with
Rule 424(b)(2) (or, if applicable and if consented to by the Lead
Underwriter, subparagraph (5)) not later than the second business day
following the execution and delivery of the Terms Agreement.
(b) The Company and, as the case may be, the Trust will advise
the Lead Underwriter promptly of any proposal to amend or supplement
the Registration Statement or the Prospectus and will afford the Lead
Underwriter a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Company and, as the case may be, the
Trust will also advise the Lead Underwriter promptly of the filing of
any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and, in the event of the issuance of
any stop order, will use its best efforts to obtain as soon as possible
its lifting.
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(c) If, at any time when a Prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the 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 statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company and, as the case may be, the Trust promptly will notify
the Lead Underwriter of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Lead Underwriter's consent
to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) As soon as practicable after the date of each Terms
Agreement, but in no event later than 12 months after the later of:
(i) the effective date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, the Company will
make generally available to its securityholders an earnings statement
which will satisfy the provisions of Section 11(a) of the Act
(including, at the option of the Company, Rule 158 of the Rules and
Regulations).
(e) The Company and, as the case may be, the Trust will furnish
to the Representatives copies of the Registration Statement, including
all exhibits, any related preliminary prospectus, any related
preliminary prospectus supplement, the Prospectus and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as the Lead Underwriter reasonably requests.
The Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company and, as the case may be, the Trust will arrange
for the qualification of the Offered Securities for sale and (if the
Offered Securities are debt securities or Preferred Securities) the
determination of their eligibility for investment under the laws of
such jurisdictions as the Lead Underwriter designates and will
continue such qualifications in effect so long as required for the
distribution; provided that in connection therewith the Company and,
as the case may be, the Trust shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject.
(g) During the period, if any, specified in the Terms Agreement,
the Company will furnish to the Representatives and, upon request, to
each of the other Underwriters, if any, as soon as practicable after
the end of each fiscal year, a copy of its annual report to
stockholders for such year, and a copy of each report and any
definitive proxy statement
12
of the Company filed with the Commission under the Securities Exchange
Act of 1934 or mailed to stockholders.
(h) The Company and, as the case may be, the Trust will pay all
expenses incident to the performance of their obligations under the
Terms Agreement (including the provisions of this Agreement), for any
filing fees or other expenses (including fees and disbursements of
counsel) in connection with qualification of the Registered Securities
for sale and (if the Offered Securities are debt securities or
Preferred Securities) any determination of their eligibility for
investment under the securities laws of such jurisdictions as the Lead
Underwriter may designate and the printing of applicable "Blue Sky"
memoranda relating thereto (including the related reasonable fees and
disbursements of counsel to the Underwriters in connection therewith),
for any fees charged by investment rating agencies for the rating of
the Offered Securities (if they are debt securities or Preferred
Securities), for any applicable filing fee incident to the review by
the National Association of Securities Dealers, Inc. of the Registered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of
Registered Securities and for expenses incurred in distributing the
Prospectus, any preliminary prospectuses, any preliminary prospectus
supplements or any other amendments or supplements to the Prospectus
to the Underwriters; provided, however, that, except as otherwise
provided herein, the Underwriters will pay their own costs and
expenses, including costs and expenses of counsel, any transfer taxes
on the Offered Securities that they sell and the expenses of
advertising any offering of the Offered Securities made by the
Underwriters, and the Company will pay the fees and expenses of its
counsel and accountants, and any transfer taxes payable in connection
with its sale of Offered Securities to the Underwriters.
(i) If the Offered Securities are debt securities or Preferred
Securities, the Company and, as the case may be, the Trust will not
offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to United States dollar-denominated
debt securities issued or guaranteed by the Company and having a
maturity of more than one year from the date of issue (if the Offered
Securities are debt securities) or any series of Preferred Securities
issued or guaranteed by the Company (if the Offered Securities are
Preferred Securities), without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Closing Date,
if any, specified under "Blackout" in the Terms Agreement.
(j) If the Offered Securities are Common Stock or are convertible
into Common Stock, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
additional shares of its Common Stock or securities convertible into
or exchangeable or exercisable for any shares of its Common Stock,
without the prior written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms Agreement and ending
the number of days after the Closing Date, if any,
13
specified under "Blackout" in the Terms Agreement, except for the
Offered Securities and any issuances of Common Stock pursuant to the
conversion or exchange of convertible or exchangeable securities or
the exercise of warrants or options, in each case outstanding on the
date of the Terms Agreement, issuances of Common Stock pursuant to
employee benefit plans, stock option plans, or other employee or
director compensation plans, now or hereafter existing, issuances of
Common Stock pursuant to the exercise of such options or issuances of
Common Stock pursuant to a dividend reinvestment plan or direct access
plan of the Company, and provided, however, that the Company may,
without such consent, offer and sell Equity Securities of the Company
in transactions exempt from the registration requirements of the
Securities Act, provided that the purchasers in such transactions are
prohibited from offering for sale, selling or otherwise disposing of,
directly or indirectly, any of the Equity Securities of the Company so
acquired by them for the remainder of such period.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy, when made and at the time of delivery of any Offered
Securities pursuant to a Terms Agreement, of the representations and warranties
of the Company and, as the case may be, of the Trust contained herein, to the
performance by the Company and, as the case may be, the Trust of its obligations
hereunder and to the following additional terms and conditions:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Ernst & Young, LLP, or such other nationally
recognized independent auditors selected by the Company, confirming
that they are independent auditors within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating
to the effect that:
(i) in their opinion the financial statements and any
schedules audited by them and included in the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on any
unaudited financial statements included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
14
(A) the unaudited financial statements, if any, included in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles (except for the absence of notes normally
included in financial statements contained in Form 10-K);
(B) unaudited "capsule" information, if any, contained in
the Prospectus does not agree with the corresponding amounts set
forth in the unaudited consolidated financial statements or were
not determined on a basis substantially consistent with that of
the corresponding amounts in the audited financial statements;
(C) at the date of the latest available balance sheet read
by such auditors, or at a subsequent specified date not more than
five business days prior to the date of such letter, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated, net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such auditors
there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in consolidated sales and other operating
revenue, or in the total or per share amounts of income before
extraordinary items or net income;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from
the general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found
15
such dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company and, as the case may be, the Trust or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of the Terms
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including any
Representatives, is so material and adverse as to make it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities or preferred stock of
the Company or trust preferred securities of the Trust by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review, with
implication of a possible downgrading, its rating of any debt
securities or preferred stock of the Company or trust preferred
securities of the Trust (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or
material limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York authorities;
or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters
including any Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date and any later date, if any, on which Options Securities
are purchased, of the Vice President and General Counsel of the
Company, to the effect that:
16
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
Commonwealth of Pennsylvania, with corporate power and authority
to own its properties and conduct its business as described in
the Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
(ii) If the Offered Securities are debt securities: the
relevant Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the
Trust Indenture Act; the Offered Securities have been duly
authorized and (assuming due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; the Offered Securities other than any
Contract Securities have been duly executed, issued and delivered
by the Company; assuming due authentication by the trustee and
upon payment and delivery in accordance with this Agreement, the
Offered Securities other than any Contract Securities constitute,
and any Contract Securities, when executed, authenticated, issued
and delivered in the manner provided in such Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid
and legally binding obligations of the Company entitled to the
benefits of such Indenture, and enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equitable principles (whether considered in a proceeding
in equity or at law) and an implied covenant of good faith and
fair dealing; and the Offered Securities other than any Contract
Securities conform, and any Contract Securities, when so issued
and delivered and sold will conform, to the description thereof
contained in the Prospectus;
(iii) If the Offered Securities are Preference Stock: the
Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been validly
issued and are fully paid and nonassessable; any Contract
Securities, when issued, delivered and sold pursuant to Delayed
Delivery Contracts, will be validly issued, fully paid and
non-assessable; and the Offered Securities other than any
Contract Securities conform, and any Contract Securities, when so
issued, delivered and sold, will conform, to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Offered
Securities;
17
(iv) If the Offered Securities are Common Stock: the
Offered Securities and all other outstanding shares of the
Common Stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to the Offered Securities;
(v) If the Offered Securities are convertible: the
Offered Securities other than any Contract Securities are, and
any Contract Securities, when (if the Offered Securities are
debt securities) executed, authenticated, issued and delivered
in the manner provided in the relevant Indenture and sold
pursuant to Delayed Delivery Contracts or (if the Offered
Securities are Preferred Securities) when issued, delivered
and sold pursuant to Delayed Delivery Contracts, will be
convertible into Common Stock of the Company in accordance
with (if they are debt securities) such Indenture or (if they
are Preferred Securities) their terms; the shares of Common
Stock initially issuable upon conversion of the Offered
Securities have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock;
(vi) If the Offered Securities are Capital
Securities: the relevant Trust Indenture has been duly
authorized, executed and delivered by the Company and has been
duly qualified under the Trust Indenture Act; and (assuming
due authorization, execution and delivery thereof by the
Indenture Trustee) constitutes a valid and binding obligation
of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing; and the Junior Subordinated
Notes have been duly authorized, executed, issued and
delivered by the Company as contemplated in the Trust
Indenture and (assuming due authentication by the Indenture
Trustee) constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
the Declaration and the Guarantee Agreement have been duly
authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery of the
Guarantee Agreement by the Guarantee Trustee, constitute valid
and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent
18
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equitable principles (whether
considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(vii) If the Offered Securities are Common Stock or
are convertible into Common Stock: there are no contracts,
agreements or understandings known to such counsel between the
Company and any person granting such person the right to
require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act;
(viii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(ix) No consent, approval, authorization or order of,
or filing with (other than filings with the Commonwealth of
Pennsylvania relating to the terms of any Preference Stock),
any governmental agency or body or any court is required for
the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Offered Securities
by the Company and, as the case may be, the Trust, except such
as have been obtained and made under the Act, and such as may
be required under the Exchange Act and, if the Offered
Securities are debt securities or Capital Securities, under
the Trust Indenture Act;
(x) The execution, delivery and performance of the
relevant Indenture (if the Offered Securities are debt
securities), the Terms Agreement (including the provisions of
this Agreement) and, if the Offered Securities are debt
securities or Preferred Securities, any Delayed Delivery
Contracts and the issuance and sale of the Offered Securities
and, if the Offered Securities are debt securities or
Preference Stock, compliance with the terms and provisions
thereof and the execution, and (if the Offered Securities are
Capital Securities) the delivery and performance of the Trust
Indenture, the Junior Subordinated Notes, the Declaration and
the Guarantee Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby, will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under the charter or
by-laws of the Company, or any statute, any rule, regulation
or order known to such counsel of any governmental agency or
body or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company is a party or by
which it is bound or to which any of the properties of the
Company is subject,
19
except for any conflict, breach, violation or default which,
individually or in the aggregate, would not have a Material
Adverse Effect; and the Company has full power and authority
to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the
provisions of this Agreement);
(xi) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the knowledge
of such counsel, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission, and the
Registration Statement and the Prospectus, and any amendment
or supplement thereto, made by the Company prior to the
Closing Date, comply as to form in all material respects with
the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; no facts have come to the attention of
such counsel which lead such counsel to believe that the
Registration Statement, the Prospectus, or any amendment or
supplement thereto, as of the date that any such documents
became effective or were filed with the Commission, as the
case may be, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions
in the Registration Statement and Prospectus of statutes,
legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any
legal or governmental proceedings required to be described in
the Prospectus which are not described as required or of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or
other financial data contained in the Registration Statement
or the Prospectus; and
(xii) The Terms Agreement (including the provisions
of this Agreement) and, if the Offered Securities are debt
securities or Preferred Securities, any Delayed Delivery
Contracts have been duly authorized, executed and delivered by
the Company.
In rendering such opinion, such counsel may rely as to matters
of fact upon certificates of officers of the Company and its subsidiaries and
public officials, and may include in such opinion such limitations as are
customarily contained in opinions given by counsel for issuers in securities
transactions.
20
(e) The Representatives shall have received an opinion, dated
the Closing Date and on any later date, if any, on which Options
Securities are purchased, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel
for each Trust and the Company, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act, and all filings required under
the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been
made;
(ii) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority to
own its property and conduct its business as set forth in the
Declaration and the Prospectus;
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable
against the Company and the Trustees in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general principles of equity;
(iv) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i)
to execute and deliver, and to perform its obligations under
the Terms Agreement (including the provisions of this
Agreement) and (ii) to issue and perform its obligations under
the Capital Securities and the Common Securities;
(v) Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of the
Terms Agreement (including the provisions of this Agreement),
and the performance by the Trust of its obligations hereunder,
have been duly authorized by all necessary trust action on the
part of the Trust;
(vi) The Common Securities have been duly authorized
for issuance by the Declaration, and, when issued and
delivered by the Trust to the Company as described in the
Prospectus and the Declaration, will be validly issued
undivided beneficial interests in the assets of the Trust;
under the Declaration and the Delaware Business Trust Act, the
issuance of the Common Securities is not subject to preemptive
rights;
(vii) The Capital Securities have been duly
authorized by the Declaration and validly issued and, subject
to the qualifications set forth herein, fully paid and
nonassessable undivided beneficial interests in the assets of
the Trust and are entitled to the benefits of the Declaration.
The holders of the Capital Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit
21
organized under the General Corporation Law of the State of
Delaware. Such counsel may note that the holders of Capital
Securities may be obligated, pursuant to the Declaration,
(A) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers
or exchanges of certificates for Capital Securities and the
issuance of replacement certificates for Capital Securities,
and (B) to provide security or indemnity in connection with
requests of or directions to the Property Trustee to
exercise its rights and powers under the Declaration;
(viii) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Capital Securities is not
subject to preemptive rights;
(ix) The issuance and sale by the Trust of the
Capital Securities, the execution, delivery and performance by
the Trust of this Agreement, the consummation by the Trust of
the transactions contemplated hereby and compliance by the
Trust with its obligations hereunder, and the performance by
the Company, as sponsor, of its obligations under the
Declaration (A) do not violate (i) any of the provisions of
the certificate of trust of the Trust or the Declaration or
(ii) any applicable Delaware law or administrative regulation
(except that such counsel need express no opinion with respect
to the securities laws of the State of Delaware) and (B) do
not require any consent, approval, license, authorization or
validation of, or filing or registration with, any Delaware
legislative, administrative or regulatory body under the laws
or administrative regulations of the State of Delaware (except
that such counsel need express no opinion with respect to the
securities laws of the state of Delaware); and
(x) Assuming that the Trust derives no income from or
in connection with sources within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of
State of the State of Delaware) or employees in the State of
Delaware, the holders of the Capital Securities (other than
those holders of Capital Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a
result of their participation in the Trust, and the Trust will
not be liable for any income tax imposed by the State of
Delaware.
(f) The Representatives shall have received from ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date or any later date, if any, on which
Options Securities are purchased, with respect to the incorporation of
the Company, the validity of the Offered Securities, the Registration
Statement, the Prospectus and other related matters as the
Representatives may 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. In rendering such opinion, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely as to the incorporation of the Company and
all
22
other matters governed by the laws of the Commonwealth of Pennsylvania
upon the opinion of the Company's Vice President and General Counsel,
referred to above.
(g) The Representatives shall have received a certificate,
dated the Closing Date, and on any later date, if any, on which Option
Securities are purchased, of its President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct as of such date,
that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been instituted or
threatened by the Commission and that, subsequent to the date of the
most recent financial statements in the Prospectus, there has been no
material adverse change in or any material adverse development which
affects the financial position, business, properties or results of
operations of the Company and its subsidiaries taken as a whole except
as set forth in or contemplated by the Prospectus or as described in
such certificate.
(h) The Representatives shall have received a letter (as used
in this paragraph, the "bring-down letter"), dated the Closing Date or
any later date, if any, on which Options Securities are purchased, of
Ernst & Young, LLP, or such other nationally recognized independent
auditors selected by the Company which: (i) confirms that they are
independent auditors within the meaning of the Act and the applicable
published Rules and Regulations, (ii) states, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by the initial letter delivered to the
Representatives concurrently with the execution of the Terms Agreement,
and (iii) confirms in all material respects the conclusions and
findings set forth in such initial letter.
The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents
as the Representatives reasonably request. The Lead Underwriter may in
its sole discretion waive on behalf of the Underwriters compliance with
any conditions to the obligations of the Underwriters under this
Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company and, as the case
may be, the Trust will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the 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
23
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, 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 for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company and, as the case may be, the Trust
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 in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company or the Trust by any Underwriter through the Representatives, if
any, specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in the Terms Agreement; and provided, further, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference) if the Company
had previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and, as the case may be, the Trust, its directors and
officers and each person, if any, who controls the Company and, as the case may
be, the Trust within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities to which the Company and, as the case may be, the
Trust may become subject, under the 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, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or the Trust by
such Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and, as the case may be, the Trust in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
the Terms Agreement.
24
(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
subsection (a) or (b) above, notify the indemnifying party 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 subsection (a) or (b) above. 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 wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and, as
the case may be, the Trust on the one hand and the Underwriters on the other
from the offering of the Offered Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and, as the case may be, the
Trust on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company and, as the case may be, the Trust on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and, as the case may be, the Trust bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company and, as the case may be, the Trust or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with
25
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and, as the case may be, the Trust
under this Section shall be in addition to any liability which the Company and,
as the case may be, the Trust may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company and,
as the case may be, the Trust who has signed the Registration Statement and to
each person, if any, who controls the Company and, as the case may be, the Trust
within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount (if debt securities) or number of shares (if
Preferred Securities or Common Stock) of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount (if debt securities) or number of shares (if
Preferred Securities or Common Stock) of Offered Securities, the Lead
Underwriter may make arrangements satisfactory to the Company and, as the case
may be, the Trust for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under the Terms Agreement (including
the provisions of this Agreement), to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount (if debt securities)
or number of shares (if Preferred Securities or Common Stock) of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount (if debt securities) or number of shares (if
Preferred Securities or Common Stock) of Offered Securities and arrangements
satisfactory to the Lead Underwriter and the Company for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, the Terms Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company or, as the case may be, the Trust,
except as provided in Section 8. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default. If the Offered Securities are debt securities or Preferred
Securities, the respective commitments of the several Underwriters for the
purposes of this Section shall be determined without regard to reduction in
26
the respective Underwriters' obligations to purchase the principal amounts (if
debt securities) or numbers of shares (if Preferred Securities) of the Offered
Securities set forth opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and, as the case may be, the Trust or their officers and of the several
Underwriters set forth in or made pursuant to the Terms Agreement (including the
provisions of this Agreement) will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Company and, as the case may be, the Trust or any
of their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
the Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the
Company and, as the case may be, the Trust shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4 and the respective
obligations of the Company and, as the case may be, the Trust and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Offered Securities by the Underwriters is not consummated for any reason
other than solely because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in clause (iii), (iv) or (v)
of Section 5(c), the Company and, as the case may be, the Trust will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company and, as the case may be, the
Trust in writing for the purpose of communications hereunder or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at the
address set forth in the Registration Statement, Attention: Vice President and
General Counsel; if sent to the Trust will be mailed, delivered or telegraphed
and confirmed to it at the address of the sponsor, Sunoco, Inc, Ten Penn Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and, as
the case may be, the Trust, such Underwriters as are identified in the Terms
Agreement and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
27
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
The Company and, as the case may be, the Trust hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to the Terms Agreement (including the provisions of this Agreement) or
the transactions contemplated thereby.
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on ........................ ............, 2000
DELAYED DELIVERY CONTRACT
-------------------------
[NAME OF ISSUER] [Insert Date of Initial Public Offering]
C/O CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. 10010-3629
Attention: Investment Banking Department - Transactions Advisory Group
Gentlemen:
The undersigned hereby agrees to purchase from Sunoco, Inc., a
Pennsylvania corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert-as of the date hereof, for delivery
on , 2000 ("Delivery Date"),]
[$]..............[shares]
-principal amount-of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , 2000 and a Prospectus
Supplement dated , 2000 relating thereto, receipt of copies of which
is hereby acknowledged, at- % of the principal amount thereof plus accrued
interest, if any,-$ per share plus accrued dividends, if any,-and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the-principal-amounts
set forth below:
2
Principal Amount
----------------
Number
Delivery Date of Shares
------------- ---------
--------------------------- -------------
--------------------------- -------------
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on-the-each-Delivery Date shall be made to the Company or its order
in Federal (same day) funds by certified or official bank check or wire transfer
to an account designated by the Company at a bank acceptable to the Lead
Underwriter, at the office of at A.M. on-the-such-Delivery
Date upon delivery to the undersigned of the Securities to be purchased by the
undersigned-for delivery on such Delivery Date-in definitive [If debt issue,
insert-fully registered] form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior
to-the-such-Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on-the-each-Delivery Date shall be
subject only to the conditions that (1) investment in the Securities shall not
at-the-such-Delivery Date be prohibited under the laws of any jurisdiction in
the United States to which the undersigned is subject and (2) the Company shall
have sold to the Underwriters the total-principal amount-number of shares-of the
Securities less the-principal amount-number of shares-thereof covered by this
and other similar Contracts. The undersigned represents that its investment in
the Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale 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-copies-of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of
3
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is so mailed or
delivered.
Yours very truly,
...........................................
(Name of Purchaser)
By
.........................................
.........................................
(Title of Signatory)
.........................................
.........................................
(Address of Purchaser)
Accepted, as of the above date.
[Insert NAME OF ISSUER]
By ...............................
[Insert Title]
4
SUNOCO, INC.
("Company")
Debt Securities
TERMS AGREEMENT
---------------
, 200_
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
Title: [ %] [Floating Rate]-Notes-Debentures-Bonds-Due .
Principal Amount: $ .
Interest: [ % per annum, from , 200_, payable semiannually on
and , commencing , 200_, to holders of record on
the preceding or , as the case may be.] [Zero
coupon.]
Maturity: , 200_.
Optional Redemption:
Sinking Fund:
Listing: [None.] [ Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
5
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
, 200_. Underwriters' fee is % of the principal amount of the Contract
Securities.]
Purchase Price: % of principal amount, plus accrued interest
[, if any,] from , 200_.
Expected Reoffering Price: % of principal amount, subject to change
by the [Representative[s] [Underwriters].
Closing: A.M. on , 200_, at ,
in Federal (same day) funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry Only
via DTC.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments-and-, -stabilizing [and
passive market making] on the inside front cover page of the prospectus
supplement-and-, -the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement [If
paragraph regarding passive market making is included, insert-and the
information contained in the paragraph under the caption "Underwriting" in
the prospectus supplement] [If applicable, insert-; and (ii) the following
information in the prospectus supplement furnished on behalf of [insert name of
Underwriter]: [insert description of information,
6
such as material relationship disclosure under the caption "Underwriting" in the
prospectus supplement].(1)
If the Offered Securities are denominated in a currency other than
United States dollars, make appropriate modifications to provisions of the Terms
Agreement (e.g., type of funds specified under "Closing") and consider including
in the Terms Agreement such changes and additions to the Underwriting Agreement
as may be appropriate in the circumstances, e.g., expanding the blackout
provision in Section 4 to cover debt securities denominated in the currency in
which the Offered Securities are denominated, expanding Section 5(c)(iv) to
cover a banking moratorium declared by authorities in the country of such
currency, expanding Section 5(c)(v) to cover a change or prospective change in,
or governmental action affecting, exchange controls applicable to such currency,
and modifying Section 5(d) to permit a statement to the effect that enforcement
of the Indenture and the Offered Securities is subject to provisions of law
which may require that a judgment for money damages rendered by a court in the
United States be expressed only in United States dollars and appropriate
exceptions as to any provisions requiring payment of additional amounts. Also
consider requiring an opinion of counsel for the Company confirming information
as to United States tax matters in the Prospectus and an opinion of foreign
counsel for the Company regarding such matters as foreign consents, approvals,
authorizations, licenses, waivers, withholding taxes, transfer or stamp taxes
and any information as to foreign laws in the Prospectus.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
[INSERT NAME OF ISSUER]
By
.................................
[Insert title]
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first
above written.
[If no co-representative, use first confirmation form.
If co-representative, use second.]
---------------
(1) Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
7
CREDIT SUISSE FIRST BOSTON CORPORATION
By
...............................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
CREDIT SUISSE FIRST BOSTON CORPORATION
.................................
................................,
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
........................................
[Insert title]
SCHEDULE A
Underwriter Principal
----------- Amount
------
Credit Suisse First Boston Corporation........................... $
----------
Total.......................................... $
=========
2
[Insert NAME OF ISSUER]
("Company")
Trust Preferred Securities-Preferred-Common-Stock
TERMS AGREEMENT
---------------
, 200_
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
Title:
Number of Shares:
(1) Dividend Rate:
(1) Optional Redemption:
(1) Sinking Fund:
(1) Listing: [None.] [ Stock Exchange.] [The Nasdaq Stock Market
Inc.'s National Market.]
----------
(1) To be included only if Terms Agreements relates to preferred stock.
3
(1) Delayed Delivery Contracts: [None.] [Delivery Date[s] shall
be , 20 . Underwriters' fee is $ per share of the
Contract Securities.]
Purchase Price: $ per share [If preferred stock issue,
insert-plus accrued dividends[, if any,] from , 20 ].
Expected Reoffering Price: $ per share, subject to
change by the [Representative[s]] [Underwriters].
Closing: A.M. on , 20 , at
, in Federal (same day) funds.
(2) Underwriter[s']['s] Compensation: $ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]]
[Underwriter[s]]:]
The respective numbers of shares of the Offered Securities to
be purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the
Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the
only information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the prospectus
supplement [If paragraph regarding passive market making is included, insert-and
the information contained in the paragraph under the caption "Underwriting" in
the prospectus supplement] [If applicable, insert-; and (ii) the following
information in the prospectus supplement furnished on behalf of [insert name of
Underwriter]: [insert description of information, such as material relationship
disclosure under the caption "Underwriting" in the prospectus supplement].(3)
----------
(2) Include if purchase is at public offering price and compensation payable
separately.
(3) Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
4
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
[INSERT NAME OF ISSUER]
By
...............................
[Insert title]
The foregoing Terms Agreement is
hereby confirmed and accepted as
of the date first above written.
[If no co-representative, use first confirmation
form. If co-representative, use second.]
CREDIT SUISSE FIRST BOSTON CORPORATION
By
.............................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
5
CREDIT SUISSE FIRST BOSTON CORPORATION
....................................
....................................
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
................................
[Insert title]
SCHEDULE A
Underwriter Number
----------- of
Shares
------
Credit Suisse First Boston Corporation..........................
--------
Total.........................................
========
