[Draft-02/18/98]
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Surgical Corporation
UNDERWRITING AGREEMENT
March [ ], 1998
New York, New York
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
United States Surgical Corporation, a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, (1) debt securities (the "Debt Securities") of the Company; (2)
shares of common stock, $.10 par value, of the Company (the "Common Stock");
(3) shares of preferred stock, par value $5.00 per share (the "Preferred
Stock"), of the Company; (4) depositary shares representing entitlement to all
rights and preferences of a fraction of a share of Preferred Stock of a specific
series (the "Depositary Shares"); and/or (5) warrants to purchase Debt
Securities, shares of Preferred Stock, Depositary Shares or shares of Common
Stock (the "Warrants"). The Debt Securities, Common Stock, Preferred Stock,
Depositary Shares and Warrants may be sold either separately or as units (the
"Units") together with any of the foregoing. The terms of such sales, pursuant
to this Agreement, are described in Schedule I hereto. The Debt Securities,
Common Stock, Preferred Stock, Depositary Shares and Warrants to be sold
pursuant to this Agreement as set forth in Schedule I hereto shall be referred
to herein as the "Securities". The Common Stock and Preferred Stock described
in Schedule I hereto shall collectively be referred to herein as the "Equity
Securities". If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a
basic prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective.
The offering of the Securities is a Delayed Offering and,
although the Basic Prospectus may not include all the information
with respect to the Securities and the offering thereof required
by the Act and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus is responsive to all the
disclosure requirements of the Act and the rules and regulations
thereunder as of the Effective Date. The Company will next file
with the Commission pursuant to Rules 415, 424(b)(2) or (5) or
434 or a combination thereof a final supplement to the form of
prospectus included in such registration statement relating to
the Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. If the
Rule 434 Delivery Alternative is used, the Company will also file
the Rule 434 Term Sheet in accordance with Rule 434. As filed,
such Rule 434 Term Sheet shall contain all the information
required by Rule 434 and, except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
Upon your request, but not without your agreement, the Company
will also file a Rule 462(b) Registration Statement in accordance
with Rule 462(b).
(ii) The Company meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The Company
will next file with the Commission either (x) a final prospectus
supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4) and/or 434, or (y) prior to the
effectiveness of such registration statement, an amendment to
such registration statement, including the form of final
prospectus supplement. In the case of clause (x), the Company
has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information
and Rule 434 Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to
the Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with respect
to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. If the
Rule 434 Delivery Alternative is used, the Company will also file
the Rule 434 Term Sheet in accordance with Rule 434. As filed,
such Rule 434 Term Sheet shall contain all the information
required by Rule 434, and except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
Upon your request, but not without your agreement, the Company
will also file a Rule 462(b) Registration Statement in accordance
with Rule 462(b).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus and any Rule 434 term sheet is first filed
(if required) in accordance with Rule 424(b) and on the Closing Date, the
Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934 (the "Exchange Act") (with respect to
documents incorporated by reference in the Registration Statement) and
the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date, the
Indenture, if applicable, did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, or on the date of any
filing pursuant to Rule 424(b) or Rule 434 and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) If the Securities are to be listed on any securities exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company is
filing or has filed a preliminary listing application and all required
supporting documents with respect to the Securities with such securities
exchange and has no reason to believe that the Securities will not be
authorized for listing, subject to official notice of issuance and evidence
of satisfactory distribution.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "Effective Date" shall mean each date
that the Registration Statement, any post-effective amendment or amendments
thereto or any Rule 462(b) Registration Statement became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus" shall
mean the prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of a
Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and is
used prior to filing of the Final Prospectus. "Final Prospectus" shall
mean the prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) and any term sheet pursuant to Rule 434 after
the Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the Registration Statement at
the Effective Date. If the Rule 434 Delivery Alternative is used, such
term shall also include the Basic Prospectus and the Rule 434 Term Sheet,
taken together. "Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including incorporated
documents, exhibits and financial statements, as amended at the Execution
Time (or, if not effective at the Execution Time, in the form in which it
shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective prior
to the Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended. Such term shall include any Rule
430A Information and Rule 434 Information deemed to be included therein at
the Effective Date as provided by Rule 430A and Rule 434, respectively.
"Rule 415", "Rule 424", "Rule 430A", "Rule 434", "Rule 462(b)" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. "Rule 434 Delivery
Alternative" shall mean the delivery alternative permitted by Rule 434.
"Rule 434 Information" shall mean any information to be included in a
Rule 434 Term Sheet. "Rule 434 Term Sheet" shall mean the term sheet or
abbreviated term sheet delivered by the Underwriters to investors and filed
by the Company with the Commission pursuant to Rule 434. "Rule 462(b)
Registration Statement" shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering
covered by the initial Registration Statement (file number 33-[ ]).
Any reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on
or before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence promptly
after the effective date of a registration statement, with the result that,
pursuant to Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the securities so offered must be included in
such registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to Rule 415 which
does not commence promptly after the effective date of a registration
statement, with the result that only information required pursuant to
Rule 415 need be included in such registration statement at the effective
date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount or number of shares or Units
of Securities set forth opposite such Underwriter's name in Schedule II hereto,
except that, in the case of Debt Securities, if Schedule I hereto provides for
the sale of such Debt Securities pursuant to delayed delivery arrangements, the
respective principal amount of Securities to be purchased by the Underwriters
shall be as set forth in Schedule II hereto less the respective amounts of
Contract Securities determined as provided below. Securities to be purchased by
the Underwriters are herein sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery Contracts as hereinafter
provided are herein called "Contract Securities".
(b) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the principal amount of the Debt Securities for which
such Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where such sales of Contract Securities arranged by the Underwriters have
been approved by the Company but, except as the Company may otherwise agree,
each such Delayed Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto and the aggregate principal
amount set forth in Schedule I hereto and the aggregate principle amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be purchased by all
Underwriters shall be the aggregate principal amount set forth in Schedule II
hereto less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than three business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer in immediately available funds or
as otherwise may be agreed as set forth on Schedule I hereto. Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (i) when the Registration Statement, if not effective
at the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective,
(iv) of any
request by the Commission at any time when a prospectus relating to the
Securities is required to be delivered under the Act for any amendment of
the Registration Statement or supplement to the Final Prospectus or for any
additional information, (v) of the issuance by the Commission at any time
when a prospectus relating to the Securities is required to be delivered
under the Act of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) At any time when a prospectus relating to the Securities is
required to be delivered under the Act, if any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify the Representatives of such event, (ii)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance and (iii)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, but not later than the Availability Date,
the Company will make generally available to its security holders and to
the Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes the Effective Date,
except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end
of such fourth fiscal quarter.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final Prospectus
and any supplement thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will cooperate with the Underwriters in connection
with the qualification of the Securities and any Debt Securities, Common
Stock, Preferred Stock, Warrants or Depositary Shares that may be issuable
pursuant to the exercise, conversion or exchange, as the case may be, of
the Securities offered by the Company, for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities (except that in no event will the Company be required in
connection therewith to qualify as a foreign corporation or to execute a
general consent to service of process), will arrange for the determination
of the legality of the Securities for purchase by institutional investors,
will pay all fees and expenses, including the reasonable fees, costs and
expenses of counsel for the Underwriters, associated with such
qualification and will pay the fee of the National Association of
Securities Dealers, Inc., in connection with its review, if any, of the
offering.
(f) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date the Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in
the Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(h) The Company also agrees to comply with such other covenants as
may be set forth on Schedule I hereto.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the
Registration Statement will become effective not later than (i) 6:00 PM New
York City time, on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 12:00 Noon on the business day following the day on which
the public offering price was determined, if such determination occurred
after 3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b),
the Final Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) (1) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President and General
Counsel of the Company, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of the Company and USSC Puerto Rico, Inc. (together
with Auto Suture France, S.A., individually, a "Subsidiary" and
collectively, the "Subsidiaries") (A) has been duly incorporated and
is validly existing and in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus (in the case of the
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, with respect to the Company only) and
(B) is duly qualified to do business as a foreign corporation and in
good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business and where its failure to so qualify would
have a material adverse effect on the Company;
(ii) all the outstanding shares of capital stock of the Company
and each Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and all outstanding shares of
capital stock of the subsidiaries of the Company are owned by the
Company either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the knowledge of such
counsel, any other security interests, claims, liens or encumbrances;
(iii) (A) the Company's authorized equity capitalization is as
set forth in the Final Prospectus; and (B) the Securities conform in
all material respects to the description thereof contained in the
Final Prospectus;
(iv) in the case of an offering of Debt Securities, (A) the
indenture governing such Debt Securities (the "Indenture") has been
duly authorized, executed and delivered by the Company; (B) the
Indenture
constitutes a valid and binding instrument enforceable against the
Company in accordance with its terms (except to the extent that
enforcement thereof may be limited by (1) bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium or other laws now or
hereafter in effect relating to creditors' rights generally and
(2) general principles of equity, regardless of whether such
enforceability is considered in a proceeding at law or in equity);
(C) the Debt Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the case
of any Contract Securities, will constitute valid and binding
obligations of the Company, be convertible or exercisable for other
securities of the Company in accordance with their terms as set forth
in the Final Prospectus, as the case may be, and will be entitled to
the benefits of the Indenture; (D) if the Debt Securities are
convertible or exercisable into Equity Securities, the shares of
Equity Securities issuable upon such conversion or exercise will have
been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion in accordance with the terms of
the Indenture, will be validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the Final
Prospectus; and (E) the issuance of such shares of Equity Securities
upon conversion or exchange will not be subject to preemptive or other
similar rights arising by operation of Applicable Laws (as defined
below) or under the Certificate of Incorporation or By-Laws of the
Company;
(v) in the case of an offering of Common Stock, (A) the shares
of Common Stock being delivered at such Closing Date have been duly
authorized by the Company and, when issued and delivered and paid for
by the Underwriters pursuant to this agreement, will be fully paid and
nonassessable; and (B) the issuance of the Common Stock is not subject
to preemptive or other similar rights arising by operation of
Applicable Laws or under the Certificate of Incorporation or By-Laws
of the Company;
(vi) in the case of an offering of Preferred Stock, (A) the
shares of Preferred Stock being delivered at such Closing Date have
been duly authorized by the Company and, when issued and delivered to
and paid for by the Underwriters pursuant to this Agreement, will be
fully paid and nonassessable; (B) the issuance of the shares of
Preferred Stock is not subject to preemptive or other similar rights
arising by operation of Applicable Laws or under the Certificate of
Incorporation or By-Laws of the Company; and (C) the shares of such
Common Stock or other securities initially issuable upon conversion or
exchange of such shares of Preferred Stock will have been duly
authorized and reserved for issuance upon such
conversion or exchange and, when issued upon such conversion or
exchange in accordance with the terms of the certificate of
designation for such Preferred Stock, will be validly issued, fully
paid and nonassessable and will conform to the description thereof
contained in the Final Prospectus;
(vii) in the case of an offering of Depositary Shares, the
deposit agreement relating to the Securities (the "Deposit Agreement")
has been duly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery thereof by the
Depositary named therein (the "Depositary"), constitutes a valid and
binding instrument enforceable against the Company in accordance with
its terms (except to the extent that (a) enforcement thereof may be
limited by (1) bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws now or hereafter in effect relating
to creditors' rights generally and (2) general principles of equity,
regardless of whether enforceability is considered in a proceeding at
law or in equity); assuming payment of the purchase price by the
Underwriters, each Depositary Share represents the fractional interest
set forth in the applicable Prospectus Supplement in a validly issued,
fully paid and nonassessable share of Preferred Stock; and the
Depositary Shares have been duly authorized by the Company and, when
issued under the Deposit Agreement in accordance with the provisions
of the Deposit Agreement, will be validly issued, and, assuming due
execution and delivery of the depositary receipts relating to the
Securities by the Depositary pursuant to the Deposit Agreement, such
Depositary Receipts will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement;
(viii) in the case of an offering of Warrants, (A) the warrant
agreement relating to the Securities (the "Warrant Agreement") has
been duly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery thereof by the
warrant agent named therein (the "Warrant Agent"), constitutes a valid
and binding instrument enforceable against the Company in accordance
with its terms (except to the extent that (a) enforcement thereof may
be limited by (1) bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws now or hereafter in effect relating
to creditors' rights generally and (2) general principles of equity,
regardless of whether enforceability is considered in a proceeding at
law or in equity); and (B) the Warrants have been duly authorized by
the Company and, when executed and authenticated in accordance with
the provisions of the Warrant Agreement, and delivered to and paid for
by the Underwriters pursuant to this Agreement, or the purchasers
thereof pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, Deposit Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the
Warrant Agreement;
(ix) the information contained in the Final Prospectus under the
heading "Risk Factors--Government Regulation" fairly summarizes the
matters therein described and there is no pending or, to such
counsel's knowledge, threatened suit or proceeding before any court,
Governmental Authority or arbitrator involving the Company or any of
its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not disclosed as required in the Final
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit to the Registration
Statement, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus describing
any legal proceedings or material contracts or agreements relating to
the Company and its subsidiaries fairly summarize such matters;
(x) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(xi) any Delayed Delivery Contracts are valid and binding
agreements of the Company enforceable in accordance with their terms
(except to the extent that (a) enforcement thereof may be limited by
(1) bankruptcy, reorganization, insolvency, fraudulent transfer,
moratorium or other laws now or hereafter in effect relating to
creditors' rights generally; and (2) general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity);
(xii) based on such counsel's review of Applicable Laws, no
consent, approval, authorization or order of any court or Governmental
Authority is required under Applicable Laws for the consummation of
the transactions contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the Act or, in the
event an application is made to list the Securities on any exchange or
automated quotation system, the Exchange Act, and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(xiii) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other of
the transactions contemplated herein or therein nor the fulfillment of
the terms hereof or thereof or of any Delayed Delivery Contracts will
conflict with, result in a breach or violation of, or constitute a
default, and, on the Closing Date, the Company and its subsidiaries
will not be in default, under (A) Applicable Laws, (B) the Certificate
of Incorporation or By-Laws of the Company; (C) the material terms of
any material indenture or other material agreement or instrument known
to
such counsel and to which the Company or any of its subsidiaries is a
party or bound or (D) any judgment, order or decree known to such
counsel to be applicable to the Company or any of its subsidiaries of
any court, arbitrator or Governmental Authority having jurisdiction
over the Company or any of its subsidiaries, except for any default or
defaults which individually or in the aggregate do not have a material
adverse effect on the Company;
(xiv) the Company is not an "investment company" within the
meaning of the Investment Company Act;
(xv) (A) the Registration Statement and the Final Prospectus as
amended or supplemented, and any further amendments and supplements
thereto made by the Company prior to the Closing Date (other than the
financial statements, including the notes thereto and related
schedules, and other financial data and accounting information
contained therein, as to which such counsel need express no opinion),
appeared on their face to be appropriately responsive in all material
respects with the requirements of the Act and the rules and
regulations thereunder; and (B) the documents incorporated by
reference in the Final Prospectus as amended or supplemented (other
than the financial statements, including the notes thereto, and
related schedules and other financial data and accounting information
contained therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and except in each
case that neither counsel assumes any responsibility for the accuracy,
completeness or fairness of the statements contained in such
documents;
(xvi) there are no contracts or instruments known to such counsel
between the Company and any person granting such person the right to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement; and no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement; and
(xvii) such other legal opinions with respect to the Securities
as are set forth on Schedule I hereto.
(2) The Company also shall have furnished to the Representatives the
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date,
to the same effect as that described in the preceding paragraph (b) (1) of this
section, except for subparagraphs (i) (B), (ii), (iii) (A), (iv) (E), (v)(B),
(vi) (B), (viii) (A), (ix), (xi), (xii), (xiii), (xiv), (xv) (B) and (xvi), and
to the effect that:
(i) in the case of an offering of debt securities, the Indenture
has been qualified under the Trust Indenture Act; and
(ii) to the extent that the descriptions contained in the Final
Prospectus under the heading "Taxation", if any, constitute summaries
of provisions of law, such descriptions fairly summarize in all
material respects the provisions described therein.
Each such counsel shall state that the Registration Statement has
become effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final Prospectus,
and any supplements thereto, pursuant to Rule 424(b) or Rule 434 has been
made in the manner and within the time period required by Rule 424(b) or
Rule 434; to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened.
Each such counsel shall also state that they have no reason to
believe that at the Effective Date the Registration Statement contained
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that the
Final Prospectus includes an untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
The term "Applicable Laws" shall mean the Delaware General
Corporation law and those laws, rules and regulations of the United
States of America and the State of New York, in each case, which are
currently in effect and typically applicable to transactions of the type
contemplated by this Agreement. The term "Governmental Authority" shall
mean any executive, legislative, judicial, administrative or regulatory
body of the States of New York or Delaware or the United States of
America.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware, the State of New York or the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are reasonably satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date. The opinion of each such counsel shall be
rendered to the Underwriters at the request of the Company and shall so
state therein.
(c) The Representatives shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities,
the Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus, any supplement to the Final Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied in all material respects all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company
and its subsidiaries whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Deloitte & Touche, LLP shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of
the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and that they have performed the
procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information in accordance
with, and as described in, Statement of Auditing Standards No. 71 for the
latest unaudited financial statements in or incorporated in the
Registration Statement or the Final Prospectus and stating to the effect
set forth in Exhibit A to Schedule I hereto.
References to the Final Prospectus in this paragraph (e) and Exhibit A
to Schedule I include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Deloitte & Touche, LLP shall have furnished to the Representatives a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the reasonable judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereto) and the Final Prospectus
(exclusive of any supplement thereto).
(g) On or after the Execution Time (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred
stock by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities or preferred stock.
(h) In connection with any offering of Common Stock, at the Execution
Time, the Company shall have furnished to the Representatives a letter from
each officer and director of the Company and certain major shareholders
specified in Schedule I hereto, addressed to the Representatives, in which
each such person agrees not to offer, sell or contract to sell, or
otherwise dispose of,
directly or indirectly, or announce an offering of, any shares of Equity
Securities beneficially owned by such person or any securities convertible
into, or exchangeable for, shares of such Securities for a period specified
in Schedule I hereto following the Execution Time without the prior written
consent of the Representatives.
(i) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further legal opinions, information, certificates
and documents as the Representatives may reasonably request.
(j) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
(k) The Company also agrees to comply with such other conditions as
may be set forth on Schedule I hereto.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancelation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Underwriters, at Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the
Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of one Underwriter's
counsel) approved by the Representatives that shall have been incurred by them
in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein, and (ii) such indemnity with
respect to any untrue statement or omission of a material fact made in any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any of the directors, officers, employees and agents of such Underwriter or
any person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as supplemented), excluding documents incorporated therein by
reference, at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such Preliminary
Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus
as supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity, and agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page, under the heading "Underwriting" or "Plan of Distribution" and,
if Schedule I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading "Delayed Delivery
Arrangements" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for
inclusion in the documents referred to in the foregoing indemnity, and you, as
the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnifying party shall not be liable under this
Section 7 to any indemnified party regarding any settlement or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent is consented to by such indemnifying party, which consent
shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no such case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
or number of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount or number of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount or number of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's securities shall have been suspended by the Commission
or the New York Stock Exchange or trading in securities generally on the New
York Stock Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the Final
Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and General Counsel.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York without reference to
principles of conflicts of laws.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
United States Surgical Corporation,
By:
---------------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: Salomon Brothers Inc,
By: ------------------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Debt Securities
Underwriting Agreement dated March [ ], 1998
Registration Statement No. 33-[ ] as amended by Amendment No. 1 thereto
Representatives: Salomon Brothers Inc
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Fax Number (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
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Fax Number (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
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Fax Number (212) [ ]
Description: Debt Securities
Delayed Offering
Amount of Securities: $
Price to public--total: $
Underwriting Discount--total: $[ ]
Proceeds to Company--total: $[ ]
Other provisions of or Amendments to Underwriting Agreement:
None.
Method of Payment of Underwriters' Securities:
Wire transfer in immediately available funds.
Section 4(h) provisions, if any:
None.
Section 5(h) provisions, if any:
Until the first business day following the Closing Date, the Company
will not, without the consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or guaranteed by the
Company or any securities convertible into or exchangeable for, such
securities (other than the Securities) subject to certain exceptions as set
forth in the letter from the Company to the Underwriters in the form
attached hereto as Exhibit B.
Modification of items to be covered by the letter from Deloitte & Touche, LLP
delivered pursuant to Section 5(e) at the Execution Time:
None.
Supplemental matters to be covered by the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP and/or
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to be delivered pursuant to Section 5(b):
None.
Closing Date and Time:
March [ ], 1998
[10:00 a.m.]
I-2
EXHIBIT A TO SCHEDULE I
In the letter or letters furnished to the Representatives pursuant to
Section 5(e), Deloitte & Touche, LLP shall, subject to such limitations and
qualifications as are required by applicable accounting rules and standards
including, without limitation, the Statement on Auditing Standards Number 72,
state in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules and any audited pro forma financial statements of the
Company and its subsidiaries included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them comply in form
in all material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review to the extent and in accordance with standards established
by the American Institute of Certified Public Accountants under Statement
of Auditing Standards No. 71, of any unaudited interim financial
information of the Company and its subsidiaries as included in the
Registration Statement and Final Prospectus (including those incorporated
therein by reference) carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the meetings
of the stockholders, directors and the executive, finance, audit, pension
and compensation committees of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent audited
financial statements in or incorporated in the Final Prospectus, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated
in the Registration Statement and the Final Prospectus do not comply
in form in all material respects with applicable accounting
requirements and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange Act;
or that said unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the Final
Prospectus;
(2) with respect to the period subsequent to the date of the most
recent financial statements (other than any capsule information),
audited or unaudited, in or incorporated in the Registration Statement
and the Final Prospectus, there were any changes, at a specified date
not more
than five business days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or capital stock of
the Company, or decreases in the stockholders' equity of the Company
or other balance sheet items the Representatives may reasonably
request as compared with the amounts shown on the most recent
financial statements included or incorporated in the Registration
Statement and the Final Prospectus, or for the period from the date of
the most recent financial statements included or incorporated in the
Registration Statement and the Final Prospectus to such specified date
there were any decreases, as compared with the corresponding period in
the preceding year or the preceding quarter in net revenues, net
sales, gross margin, income from operations, income before income
taxes and effect of accounting changes or in total or per share
amounts of net income applicable to common stockholders of the Company
and its subsidiaries or any other income statement items as the
Representatives may reasonably request, except in all instances for
changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary
by the Representatives;
(3) the information included in the Registration Statement and
Final Prospectus in response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial Information),
Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings
to Fixed Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Final
Prospectus do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding amounts
in the audited financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration Statement
and the Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information included or incorporated in Items 1, 2, 6, 7, 8A
and 11 of the Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the information included in
the "Management's Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated in the Registration Statement or the Final Prospectus, on the
basis of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic accuracy of
the application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements do not
comply in form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of such statements.
EXHIBIT B TO SCHEDULE I
United States Surgical Corporation
Public Offering of Debt Securities
March [ ], 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇
As Representatives of the several Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between United States
Surgical Corporation, a Delaware corporation (the "Company"), and you relating
to an underwritten public offering of Debt Securities (the "Securities"), of the
Company.
In order to induce you to enter into the Underwriting Agreement, the
Company agrees not to offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce an offering of, any debt securities issued
or guaranteed by the Company until the first business day following the day on
which delivery of and payment for the Securities is made without your prior
written consent, except that the Company may issue (i) the Securities to be
offered pursuant to the Underwriting Agreement, (ii) securities as consideration
in connection with an acquisition (provided that any recipient of such
securities agrees for your benefit not to offer, sell or contract to sell or
otherwise dispose of such shares except on the same terms described herein) and
(iii) securities pursuant to existing employee or outside director plans.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
UNITED STATES SURGICAL CORPORATION,
By:
______________________
Name:
Title:
Address:
SCHEDULE II
Underwriter Principal Amount
Salomon Brothers Inc
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BNY Capital Markets, Inc.
Chase Securities Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
