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Exhibit 1.1
B&W Draft
11/21/96
[FORM OF PREFERRED SECURITIES UNDERWRITING AGREEMENT]
PWG CAPITAL TRUST [ ]
____ Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
Guaranteed by
▇▇▇▇▇ ▇▇▇▇▇▇ GROUP INC.
UNDERWRITING AGREEMENT
[DATE]
PAINEWEBBER INCORPORATED
[Other Representatives]
as Representative[s] of the several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
PWG Capital Trust [ ] (the "Trust"), a business trust organized under
the Delaware Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ss. 3801 et seq.),
proposes to issue and sell an aggregate of _____ shares of its __% preferred
trust securities (the "Firm Securities"). The Trust has also agreed to grant to
you and the other Underwriters (as defined below) an option (the "Option") to
purchase up to an additional __ shares of its __% preferred trust securities
(the "Option Securities") on the terms and for the purposes set forth in Section
1(b). The Firm Securities and the Option Securities are hereinafter collectively
referred to as the "Preferred Securities." The Preferred Securities will be sold
to you and to the other underwriters named in Schedule I (collectively, the
"Underwriters") for whom you are acting as representatives[s] (the
"Representative[s]"). The Preferred Securities will be guaranteed, to the extent
set forth in the Prospectus (as defined in Section 3(a) hereof), by ▇▇▇▇▇ ▇▇▇▇▇▇
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Group Inc., a Delaware corporation (the "Company"). Capitalized terms used but
not separately defined herein are defined in the Prospectus and used herein as
so defined.
It is understood that substantially contemporaneously with the offering
and sale of the Firm Securities to the Underwriters contemplated hereby, (i) the
Trust, its trustees (the "Trustees") and the Company shall take all necessary
action to adopt an Amended and Restated Declaration of Trust in substantially
the form of the Form of Amended and Restated Declaration of Trust filed as
Exhibit 4.11 to the Registration Statement (as defined in Section 3(a) hereof)
(as so amended and restated, the "Declaration"), pursuant to which the Trust
shall (x) issue and sell the Preferred Securities to the Underwriters pursuant
hereto and (y) issue [ ] shares of its [ ]% common trust securities (and up to
an additional [ ] shares of such securities in connection with the issuance and
sale of the Option Securities) (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities") to the Company, in each case with
such rights and obligations as shall be set forth in the Declaration, (ii) the
Company and The Chase Manhattan Bank, as trustee (the "Debt Trustee"), shall
enter into an Indenture in substantially the form of the Form of the Junior
Subordinated Debt Indenture filed as Exhibit 4.1 to the Registration Statement
(as supplemented by the Supplemental Indenture substantially in the form filed
as Exhibit 4.13 to the Registration Statement, the "Indenture") providing for
the issuance of up to $[ ] in aggregate principal amount of the Company's Junior
Subordinated Debentures due - (the "Debentures"), (iii) the Company shall sell
such Debentures to the Trust in conjunction with the consummation of the sale of
the Preferred Securities to the Underwriters contemplated hereby and (iv) the
Company and The Chase Manhattan Bank, as Guarantee Trustee (the "Guarantee
Trustee"), shall enter into a Guarantee Agreement in substantially the form of
the Form of Guarantee Agreement with respect to the Preferred Securities filed
as Exhibit 4.15 to the Registration Statement (the "Guarantee") for the benefit
of holders from time to time of the Preferred Securities. The Preferred
Securities together with the Guarantee are collectively hereinafter called the
"Offered Securities".
The Company confirms as follows its agreements with the
Representative[s] and the several other Underwriters.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements of the Trust and the Company herein contained and subject to all the
terms and conditions of this Agreement, the Trust agrees to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Trust, at a purchase price of $25.00 per Preferred Security, the number
of Firm Securities set forth opposite the name of such Underwriter in Schedule
I, plus such additional number of Firm Securities which such Underwriter may
become obligated to purchase pursuant to Section 8 hereof.
(b) Subject to all the terms and conditions of this
Agreement, the Trust grants the Option to the several Underwriters to purchase,
severally and not jointly, up
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to ______ Option Securities from the Trust at the same purchase price per
Preferred Security as the Underwriters shall pay for the Firm Securities plus
any accrued and unpaid distributions on the Option Securities as of the Option
Closing Date (as defined below). The Option may be exercised only to cover
over-allotments in the sale of the Firm Securities by the Underwriters and may
be exercised in whole or in part at any time (but not more than once) on or
before the [30th] day after the date hereof, upon written or telegraphic notice
(the "Option Securities Notice") by the Representative[s] to the Trust and the
Company no later than 12:00 noon, New York City time, at least two and no more
than five business days before the date specified for closing in the Option
Securities Notice (the "Option Closing Date") setting forth the aggregate number
of Option Securities to be purchased and the time and date for such purchase. On
the Option Closing Date, the Trust will issue and sell to the Underwriters the
number of Option Securities set forth in the Option Securities Notice, and each
Underwriter will purchase such percentage of the Option Securities as is equal
to the percentage of Firm Securities that such Underwriter is purchasing, as
adjusted by the Representative[s] in such manner as they deem advisable to avoid
fractional Preferred Securities.
(c) As compensation to the Underwriters for their commitment
hereunder, and in view of the fact that the proceeds of the sale of the
Preferred Securities will be used by the Trust to purchase the Debentures of the
Company, the Company hereby agrees to pay at the Closing Date and the Option
Closing Date, if applicable, for the account of the several Underwriters, an
amount equal to $[ ] per Preferred Security.
2. Delivery and Payment. Delivery of the Firm Securities shall be
made to the Representative[s] for the accounts of the Underwriters at the
offices of PaineWebber Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, against payment of the purchase price by credit of immediately
available funds to the account of the Trust with The Depository Trust Company.
Such payments shall be made at 10:00 a.m., New York City time, on the [third]
[fourth] business day after the date on which the first bona fide offering of
the Firm Securities to the public is made by the Underwriters or at such time
on such other date, not later than seven business days after such date, as may
be agreed upon by the Trust and the Representative[s] (such date is hereinafter
referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option
Securities against payment by the Underwriters (in the manner specified above)
will take place at the time and date (which may be the Closing Date) specified
in the Option Securities Notice.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Securities and Option Securities by the Trust
to the respective Underwriters shall be borne by the Trust. The Trust will pay
and save each Underwriter and any subsequent holder of the Preferred Securities
harmless from any and all liabilities with respect to or resulting from any
failure or delay in paying Federal and state stamp and other transfer taxes, if
any, which may be payable or determined to be payable in connection with
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the original issuance or sale to such Underwriter of the Firm Securities and
Option Securities.
At the Closing Date and the Option Closing Date, if any, the Company
will pay, or cause to be paid, the commission payable at such time to the
Underwriters under Section 1(c) hereof by wire transfer of immediately available
funds to a bank account (or bank accounts) designated by the Representative[s].
3. Representations and Warranties of the Trust and the Company.
Each of the Trust and the Company, jointly and severally, represents and
warrants to, and agrees with, the several Underwriters that:
(a) The Trust and the Company meet the requirements for use of
Form S-3 and a registration statement (Registration Nos. 333-13831 and
▇▇▇-▇▇▇▇▇-▇[ ]) on Form S-3 relating to the Offered Securities, including a
preliminary prospectus relating to the Offered Securities and such amendments to
such registration statement as may have been required to the date of this
Agreement, has been prepared by the Company and the Trust under the provisions
of the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (collectively referred to as the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, and has been
filed with the Commission. Copies of such registration statement and amendments
and of each related preliminary prospectus have been delivered to the
Representative[s]. The Company will next file with the Commission one of the
following: (i) prior to effectiveness of such registration statement, a further
amendment to such registration statement, including the form of final prospectus
relating to the Offered Securities, (ii) a final prospectus relating to the
Offered Securities in accordance with Rule 430A ("Rule 430A") and Rule 424(b)(1)
or (4) of the Rules and Regulations, or (iii) a final prospectus relating to the
Offered Securities in accordance with Rule 415 ("Rule 415") and Rule 424(b)(2)
or (5) of the Rules and Regulations. In the case of Clause (ii), the Company has
included in such registration statement, as amended at the Effective Date (as
defined below), all information required by the Act and the Rules and
Regulations to be included in the Prospectus (as defined herein) with respect to
the Offered Securities and the offering thereof other than the information
permitted to be omitted therefrom at the Effective Date by Rule 430A ("Rule 430A
Information"). As filed, such amendment and form of final prospectus, or such
final prospectus, shall contain all Rule 430A Information, together with all
other such required information, with respect to the Offered Securities and the
offering thereof and, except to the extent the Representative[s] shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the time (the "Execution Time") this Agreement is
entered into or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that
contained in the latest preliminary prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein. If the
Registration Statement (as defined below) contains the undertaking specified by
Regulation S-K Item 512(a), the Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a)(1)(x). The term
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"preliminary prospectus" as used herein means any preliminary prospectus
(including the supplement thereto) relating to the Offered Securities referred
to above and any preliminary prospectus (including the supplement thereto)
relating to the Offered Securities included in the Registration Statement at the
Effective Date that omits Rule 430A Information. The term "Registration
Statement" means the registration statement referred to above as amended at the
time it became effective (the "Effective Date") and, in the event any
post-effective amendment thereto becomes effective prior to the Closing Date
shall also mean such registration statement as so amended, including financial
statements and all exhibits and any information deemed to be included by Rule
430A of the Rules and Regulations after the Execution Time. If the Company and
the Trust files a registration statement to register a portion of the Offered
Securities and relies on Rule 462(b) of the Regulations for such registration
statement to become effective upon filing with the Commission (the "Rule 462
Registration Statement"), then any reference to the "Registration Statement"
shall be deemed to include the Rule 462 Registration Statement, as amended from
time to time. The term "Prospectus" means the prospectus (including the
supplement thereto) relating to the Offered Securities that is first filed with
the Commission pursuant to Rule 424(b) ("Rule 424(b)") of the Rules and
Regulations after the Execution Time or, if no such filing is required, the form
of final prospectus (including the supplement thereto) relating to the Offered
Securities included in the Registration Statement at the Effective Date. Any
reference herein to the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the Effective Date or the date of such preliminary
prospectus or the Prospectus, as the case may be. Any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date, or the date of any preliminary prospectus or the Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) On the Effective Date, the date the Prospectus is first filed
with the Commission pursuant to Rule 424(b) (if required), at all times
subsequent to and including the Closing Date and if later, the Option Closing
Date and when any post-effective amendment to the Registration Statement becomes
effective or any amendment or supplement to the Prospectus is filed with the
Commission the Registration Statement and the Prospectus (as amended or
supplemented if the Company and the Trust shall have filed with the Commission
any amendment or supplement thereto), including the financial statements
included or incorporated by reference in the Prospectus, did or will comply with
the applicable provisions of the Act, the Exchange Act, the rules and
regulations thereunder (the "Exchange Act Rules and Regulations"), the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), the rules and
regulations thereunder (the "Trust Indenture Act Rules and Regulations") and the
Rules and Regulations and will contain all statements required to be stated
therein in accordance with the Act, the Exchange Act, the Exchange Act Rules and
Regulations and the Rules and Regulations. On the Effective Date and when any
post-
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effective amendment to the Registration Statement becomes effective, no part of
the Registration Statement or any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein not misleading. At the Effective Date, the Prospectus, if
not filed pursuant to Rule 424(b), did not, and on the date the Prospectus is
filed (if required) with the Commission pursuant to Rule 424(b) and on the
Closing Date, and, if later, the Option Closing Date, the Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations and
warranties in this Section 3(b) do not apply to any statements or omission made
in reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Representative[s] specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. The Company has not distributed any offering material in
connection with the offering or sale of the Offered Securities other than the
Registration statement, the preliminary prospectus, the Prospectus or any other
materials, if any, permitted by the Act. On the Effective Date, the date the
Prospectus is first filed with the Commission pursuant to Rule 424(b) (if
required), and at all subsequent times to and including the Closing Date or, if
later, the Option Closing Date, the Indenture will comply with all applicable
provisions of the Trust Indenture Act and the Trust Indenture Act Rules and
Regulations.
(c) The documents which are incorporated by reference in the
preliminary prospectus and the Prospectus or from which information is so
incorporated by reference, at the time they became effective or were filed with
the Commission, as the case may be, complied in all material respects with the
requirements of the Act and the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations and any documents so filed
and incorporated by reference subsequent to the Effective Date shall, when they
are filed with the Commission, conform in all material respects with the
requirements of the Act and the Exchange Act, as applicable, the Exchange Act
Rules and Regulations and the Rules and Regulations.
(d) The Company and each of the Company's "significant
subsidiaries" as such term is defined in Rule 1-02 of Regulation S-X under the
Act (collectively, the "Subsidiaries") is, and at the Closing Date will be, a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. The Company and each of its Subsidiaries
has, and at the Closing Date will have, full power and authority to conduct all
the activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration Statement and
the Prospectus; except where the failure to have such power and authority would
not have a Material Adverse Effect (as defined below). The Company and each of
its Subsidiaries is, and at the Closing Date will be, duly licensed or qualified
to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary except for such failures to be licensed or qualified as
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would not materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operation of the
Trust or of the Company and its subsidiaries considered as one enterprise (a
"Material Adverse Effect"). All of the outstanding shares of capital stock of
the Subsidiaries have been duly authorized and validly issued and are fully paid
and non-assessable and are owned by the Company free and clear of all liens,
encumbrances and claims (collectively, "Liens") whatsoever except for such Liens
as would not have a Material Adverse Effect. Complete and correct copies of the
certificate of incorporation and of the by-laws of the Company and each of its
Subsidiaries and all amendments thereto have been delivered to the
Representative[s], and no changes therein will be made subsequent to the date
hereof and prior to the Closing Date or, if later, the Option Closing Date.
(e) The descriptions of the Preferred Securities, the Common
Securities, the Guarantee and the Debentures in the Registration Statement and
in the Prospectus are, and at the Closing Date will be, complete and accurate in
all material respects. The Indenture conforms to the description thereof
contained in the Registration Statement and the Prospectus in all material
respects.
(f) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Prospectus, and
any amendment or supplement thereto, present fairly the consolidated financial
condition of the Company as of the respective dates thereof and the consolidated
results of operations and cash flows of the Company for the respective periods
covered thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except as
otherwise disclosed in the Prospectus. No other financial statements or
schedules of the Company are required by the Act, the Exchange Act or the Rules
and Regulations to be included in the Registration Statement or the Prospectus.
Ernst & Young LLP (the "Accountants"), who have reported on such financial
statements and schedules, are independent accountants with respect to the
Company as required by the Act and the Rules and Regulations. The statements
included in the Registration Statement with respect to the Accountants pursuant
to Rule 509 of Regulation S-K of the Rules and Regulations are true and correct
in all material respects.
(g) Each of the Trust and the Company maintains a system of
internal accountings control sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date, except
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as set forth in or contemplated by the Registration Statement and the
Prospectus, (i) there has not been and will not have been any change in the
capitalization of the Trust or the Company, or any material adverse change in
the business, properties, business prospects, condition (financial or otherwise)
or results of operations of the Trust or the Company and its subsidiaries
considered as one enterprise, arising for any reason whatsoever, (ii) neither
the Trust nor the Company nor any of its Subsidiaries has incurred nor will
incur any material liabilities or obligations, direct or contingent, nor have
they entered into nor will they enter into any material transactions other than
pursuant to this Agreement and the transactions referred to herein, and (iii)
the Trust has not and will not have paid or declared any distributions of any
kind on any class of its securities.
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; 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; under the Delaware
Act and the Declaration, the Trust has the business trust power and authority to
(x) own property and conduct its business, all as described in the Prospectus,
(y) enter into and perform its obligations under this Agreement, and (z) issue
and perform its obligations under the Preferred Securities and the Common
Securities and is not required to be authorized to do business in any
jurisdiction other than Delaware; the Trust is not a party to or otherwise bound
by any agreement other than those described in the Prospectus; the Trust does
not have any consolidated or unconsolidated subsidiaries; and the Trust is and
will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Declaration has been duly and validly authorized by the
Company and, when executed and delivered by the Company and the Trustees at the
Closing Date, and assuming due authorization, execution and delivery thereof by
the Property Trustee and the Delaware Trustee (as such terms are defined in the
Declaration), will be the valid and binding obligation of the Company and the
Trustees, enforceable against the Company and the Trustees in accordance with
its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law) and conforms to the description thereof contained in the
Prospectus; and, at the Closing Date, the Declaration will have been duly
qualified under the Trust Indenture Act.
(k) The execution and delivery by the Trust and the Company of
this Agreement and the performance by the Trust and the Company of their
respective obligations hereunder, have been duly authorized by all necessary
business trust action on the part of the Trust and corporate action on the part
of the Company; and this Agreement has been duly executed and delivered by the
Trust and the Company.
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(l) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor in accordance with the Declaration, will be validly issued and
[(subject to the terms of the Declaration)] fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; and under the
Delaware Act and the Declaration, the issuance of the Common Securities will not
be subject to preemptive or other similar rights.
(m) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust in accordance with the
Declaration to the Underwriters and paid for in accordance with this Agreement,
will be validly issued, and [(subject to the terms of the Declaration)] fully
paid and nonassessable undivided beneficial interests in the assets of the Trust
and will be entitled to the benefits of the Declaration; the holders of the
Preferred Securities, as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability as that extended to stockholders of
private corporations for profit organized under the General Corporation Law of
the State of Delaware; under the Delaware Act and the Declaration, the issuance
of the Preferred Securities will not be subject to preemptive or other similar
rights; and the Preferred Securities will conform to the description thereof in
any preliminary prospectus and in the Prospectus.
(n) At the Closing Date and the Option Closing Date, all of the
issued and outstanding Common Securities of the Trust will be directly owned by
the Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(o) At the Closing Date and the Option Closing Date, the Property
Trustee will be the record holder of the Debentures and no security interest,
mortgage, pledge, lien, encumbrance, claim or equity will be noted thereon or on
the Debenture register maintained by or on behalf of the Company.
(p) The Guarantee has been duly and validly authorized by the
Company and, when executed and delivered by the Company at the Closing Date,
will constitute a valid and legally binding agreement of the Company enforceable
in accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in
a proceeding in equity or at law); at the Closing Date, the Guarantee will have
been duly qualified under the Trust Indenture Act; and the Guarantee will
conform to the description thereof contained in any preliminary prospectus and
in the Prospectus.
(q) The Indenture has been duly and validly authorized by the
Company and, when executed and delivered by the Company at the Closing Date and,
assuming due authorization, execution and delivery by the Debt Trustee, at such
Closing
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Date will constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law); at the Closing Date, the
Indenture will have been duly qualified under the Trust Indenture Act; and the
Indenture will conform to the description thereof contained in any preliminary
prospectus and in the Prospectus.
(r) The Debentures have been duly and validly authorized by the
Company and, when executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Trust in accordance with the
Declaration, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether considered in a proceeding in equity or at law); and the Debentures
will be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform to the description thereof contained in the
Prospectus.
(s) Neither the Commission nor the Blue Sky or securities
authority of any jurisdiction has issued an order (a "Stop Order") suspending
the effectiveness of the Registration Statement, preventing or suspending the
use of any preliminary prospectus, the Prospectus, the Registration Statement or
any amendment or supplement thereto, refusing to permit the effectiveness of the
Registration Statement, suspending the registration or qualification of the
Offered Securities, nor have any such authorities instituted or, to the
knowledge of the Trust or the Company, threatened to institute any proceedings
with respect to a Stop Order in any jurisdiction in which the Offered Securities
are to be sold or in which the Offered Securities may be issued, nor, with
respect to accuracy on the Closing Date, has there been any Stop Order
instituted or, to the knowledge of the Trust or the Company, threatened on or
after the effective date of the Registration Statement in any jurisdiction.
(t) The Debentures are subordinated and junior in right of
payment to all Senior Indebtedness (as defined in the Indenture) of the Company.
(u) The execution, delivery and performance by the Company of
this Agreement, the Indenture, the Debentures and the Guarantee and the
execution, delivery and performance by the Trust of this Agreement, the
Declaration and the Trust Securities and the consummation of the transactions
contemplated hereby and thereby and compliance by the Company and the Trust, as
the case may be, with the terms hereof and thereof and the application of the
net proceeds from the offering and sale of the Trust Securities to be sold by
the Trust and the Debentures to be sold by the Company in the manner set forth
in the Prospectus under "Use of Proceeds" will not result in the creation or
imposition of any lien,
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charge or encumbrance upon any of the assets of the Trust or the Company or any
of the Subsidiaries pursuant to the terms or provisions of, or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or give any other party a right to terminate any of its
obligations under, or result in the acceleration of any obligation under, the
Declaration, the certificate of incorporation or by-laws of the Company or any
of the Subsidiaries, any contract or other agreement to which the Trust or the
Company or any of the Subsidiaries is a party or by which the Trust or the
Company or any of the Subsidiaries or any of their respective properties is
bound or affected, or violate or conflict with any judgment, ruling, decree,
order, statute, rule or regulation of any court or governmental agency or body
applicable to the business or properties of the Trust or the Company or any of
the Subsidiaries except for any of the foregoing which would not have a Material
Adverse Effect.
(v) No holder of securities of the Company or the Trust has
rights to the registration of any securities of the Company or the Trust because
of the filing of the Registration Statement.
(w) Neither the Trust nor the Company is an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended.
(x) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or threatened
against or affecting the Trust or the Company or any of its Subsidiaries or any
of their respective officers in their capacity as such, before or by any Federal
or state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling, decision
or finding would reasonably be expected to have a Material Adverse Effect.
(y) Each of the Trust and the Company and each of its
Subsidiaries has, and at the Closing Date will have, (i) all governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to carry on its business as contemplated in the Prospectus, (ii)
complied in all respects with all laws, regulations and orders applicable to it
or its business and (iii) performed all obligations required to be performed by
it, and is not, and at the Closing Date will not be, in default, under any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement, lease, contract or other agreement or
instrument (collectively, a "contract or other agreement") to which it is a
party or by which its property is bound or affected; except in the case of (i),
(ii) or (iii) above, for such failures to possess, comply or perform as would
not have a Material Adverse Effect. To the best knowledge of each of the Trust
and the Company and each of its Subsidiaries, no other party under any contract
or other agreement to which it is a party is in material default thereunder.
None of the Trust, the Company nor any of its Subsidiaries is, nor at the
Closing Date will any of them be, in violation of its respective Declaration,
charter or by-laws.
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(z) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is required
in connection with the authorization, issuance, transfer, sale or delivery of
the Trust Securities by the Trust or the Guarantee and the Debentures by the
Company, in connection with the execution, delivery and performance of this
Agreement by the Trust and the Company or in connection with the taking by the
Trust or the Company of any action contemplated hereby and in the Indenture, the
Guarantee, the Preferred Securities and the Common Securities, except such as
have been obtained under the Act, the Rules and Regulations, the Trust Indenture
Act and the Trust Indenture Act Rules and Regulations and such as may be
required under state securities or Blue Sky laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD") in connection with
the purchase and distribution by the Underwriters of the Preferred Securities
and such as may be required to be obtained subsequent to the Closing Date in
connection with the performance by the Trust and the Company of the actions
contemplated to be taken by each pursuant to such agreements and instruments.
(aa) The Company and each of its Subsidiaries has valid,
subsisting and enforceable leases for the properties described in the
Registration Statement and the Prospectus as leased by it, with such exceptions
as are not material and do not materially interfere with the use made and
proposed to be made of such properties by the Company and such Subsidiaries.
(ab) There is no document or contract of a character required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which the Trust or the Company or any Subsidiary
is a party have been duly authorized, executed and delivered by the Trust or the
Company or such Subsidiary, constitute valid and binding agreements of the Trust
or the Company or such Subsidiary and are enforceable against the Trust or the
Company or such Subsidiary in accordance with the terms thereof (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law).
(ac) No statement, representation, warranty or covenant made by
the Trust or the Company in this Agreement, the Indenture or the Declaration or
made in any certificate or document required by this Agreement to be delivered
to the Representative[s] was or will be, when made, inaccurate, untrue or
incorrect.
(ad) Neither the Company nor the Trust nor any of their respective
directors, officers, trustees or controlling persons has taken, directly or
indirectly, any action designed, or which might reasonably be expected, to cause
or result, under the Act or
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otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Preferred Securities.
(ae) At the Closing Date, the Preferred Securities will be duly
authorized for listing by the New York Stock Exchange, Inc. (the "NYSE") upon
official notice of issuance.
(af) Neither the Trust, the Company nor any of its Subsidiaries is
involved in any material labor dispute nor, to the knowledge of the Trust or the
Company, is any such dispute threatened.
(ag) The Company and its Subsidiaries own, or are licensed or
otherwise have the full right to use, all material trademarks and trade names
which are used in or necessary for the conduct of their respective businesses as
described in the Prospectus. No claims have been asserted by any person to the
use of any such trademarks or trade names or challenging or questioning the
validity or effectiveness of any such trademark or trade name except such claims
as would not reasonably be expected to have a Material Adverse Effect. The use,
in connection with the business and operations of the Company and its
Subsidiaries of such trademarks and trade names does not, to the Company's
knowledge, infringe on the rights of any person except such infringements as
would not reasonably be expected to have a Material Adverse Effect.
(ah) Neither the Trust, the Company nor any of its Subsidiaries
nor, to the Trust's or the Company's knowledge, any employee or agent of the
Trust, the Company or any Subsidiary has made any payment of funds of the Trust,
the Company or any Subsidiary or received or retained any funds in violation of
any law, rule or regulation or of a character required to be disclosed in the
Prospectus.
4. Agreements of the Trust and the Company. The Trust and the
Company, jointly and severally, agree with the several Underwriters as follows:
(a) The Company and the Trust will not, either prior to the
Effective Date or thereafter during such period as a prospectus is required by
law to be delivered in connection with sales of the Offered Securities by an
Underwriter or dealer, file any amendment or supplement to the Registration
Statement or the Prospectus, unless a copy thereof shall first have been
submitted to the Representative[s] within a reasonable period of time prior to
the filing thereof and the Representative[s] shall not have objected thereto in
good faith.
(b) The Trust and the Company will use their best efforts to
cause the Registration Statement to become effective, and will notify the
Representative[s] promptly, and will confirm such advice in writing, (1) when
the Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (2) of any request by the Commission for
amendments or supplements to the Registration Statement
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or the Prospectus or for additional information, (3) of the issuance by the
Commission of any Stop Order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the threat
thereof, (4) of the happening of any event during the period mentioned in the
second sentence of Section 4(e) that in the judgment of the Trust or the Company
makes any statement made in the Registration Statement or the Prospectus untrue
or that requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in the light of the
circumstances in which they are made, not misleading, and (5) of receipt by the
Trust or the Company or any representative or attorney of the Trust or the
Company of any other communication from the Commission relating to the Trust or
the Company, the Registration Statement, any preliminary prospectus or the
Prospectus. If at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, the Trust and the Company will make
every reasonable effort to obtain the withdrawal of such order at the earliest
possible moment. The Trust and the Company will use their best efforts to comply
with the provisions of and make all requisite filings with the Commission
pursuant to Rule 430A, if any, and to notify the Representative[s] promptly of
all such filings.
(c) The Trust or the Company will promptly furnish to the
Representative[s], without charge, two signed copies of the Registration
Statement and of any post-effective amendment thereto, including financial
statements and schedules, and all exhibits thereto (including any document filed
under the Exchange Act and deemed to be incorporated by reference into the
Prospectus) and will furnish to the Representative[s], without charge, for
transmittal to each of the other Underwrites, a copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules.
(d) The Trust and the Company will comply with all the provisions
of any undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many copies
of the preliminary prospectus and Prospectus and any amendment or supplement
thereto, as the Representative[s] may reasonably request. The Company and the
Trust consent to the use of the preliminary prospectus or Prospectus and any
amendment or supplement thereto, as the case may be, by the several Underwriters
and by all dealers to whom the Offered Securities may be sold, both in
connection with the offering or sale of the Offered Securities and for any
period of time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any event shall
occur which in the judgment of the Company, the Trust or counsel to the
Underwriters should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will deliver to
each of the Underwriters, without charge, such number of copies thereof as the
Representative[s] may
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reasonably request. The Company shall not file any document under the Exchange
Act before the termination of the offering of the Offered Securities by the
Underwriters if such document would be deemed to be incorporated by reference
into the Prospectus which is not approved by the Representative[s] after
reasonable notice thereof.
(f) Prior to any public offering of the Offered Securities by the
Underwriters, the Trust and the Company will cooperate with the
Representative[s] and counsel to the Underwriters in connection with the
registration or qualification of the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representative[s]
may request; provided, that in no event shall the Trust or the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective
Date, the Company will furnish to the Representative[s] and each other
Underwriter who may so request copies of such financial statements and other
periodic and special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock, and will furnish to
the Representative[s] and each Underwriter who may so request a copy of each
annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of the
Preferred Securities and the Representative[s] as soon as may be practicable but
in no event later than the last day of the fifteenth full calendar month
following the calendar quarter in which the Effective Date falls, an earnings
statement (which need not be audited but shall be in reasonable detail) for a
period of 12 months ended commencing after the Effective Date, and satisfying
the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and
Regulations).
(i) The Trust will apply the net proceeds from the offering and
sale of the Preferred Securities in the manner set forth in the Prospectus under
the caption "Use of Proceeds."
(j) During a period of [30] days from the date hereof, neither
the Trust nor the Company will, without the Representative's prior written
consent, directly or indirectly, sell, offer to sell, contract to sell, grant
any option for the sale of, or otherwise dispose of, any Preferred Securities,
any security convertible into or exchangeable into or exercisable for, Preferred
Securities or Debentures or any debt securities substantially similar to the
Debentures or any equity securities substantially similar to the Preferred
Securities, except for the Debentures and Preferred Securities offered hereby.
(k) The Trust and the Company will use every reasonable effort to
effect and maintain the listing of the Preferred Securities on the NYSE and to
file with the
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NYSE all documents and notices required by the NYSE of issuers that have
securities quoted on such exchange.
(l) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay
or cause to be paid or will reimburse if paid by the Representative[s] all costs
and expenses incident to the performance of the obligations of the Trust and the
Company under this Agreement, including but not limited to costs and expenses of
or relating to (1) the preparation, printing and filing of the Registration
Statement and exhibits to it, each preliminary prospectus, the Prospectus, any
amendment or supplement to the Registration Statement or the Prospectus and the
Indenture, (2) the preparation and delivery of certificates representing the
Preferred Securities, (3) the printing of this Agreement, the Agreement Among
Underwriters, any Dealer Agreements and any Underwriters' Questionnaire, (4)
furnishing (including cost of shipping, mailing and courier) such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may be requested for use in connection
with the offering and sale of the Offered Securities by the Underwriters or by
dealers to whom Preferred Securities may be sold, (5) the listing of the
Preferred Securities on the NYSE, (6) any filings required to be made by the
Underwriters with the NASD, and the fees, disbursements and other charges of
counsel for the Underwriters in connection therewith, (7) the registration or
qualification of the Offered Securities for offer and sale under the securities
or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f),
including the fees, disbursements and other charges of counsel to the
Underwriters in connection therewith, and the preparation and printing of
preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the
Company, (9) the transfer agent and registrar for the Trust Securities, (10) the
rating of the Debentures by one or more rating agencies, (11) the Debt Trustee
under the Indenture, the Guarantee Trustee under the Guarantee, the Property
Trustee, the Delaware Trustee and the Regular Trustees under the Declaration and
any agents of such trustees and the fees, disbursements and other charges of
counsel for such trustees in connection with the Indenture, the Guarantee, the
Declaration and the Debentures, and (12) the Accountants.
(m) If this Agreement shall be terminated by the Company or the
Trust pursuant to any of the provisions hereof (other than pursuant to Section
8) or if for any reason the Company or the Trust shall be unable to perform its
obligations hereunder, the Company or the Trust will reimburse the several
Underwriters for all out-of-pocket expenses (including the fees, disbursements
and other charges of counsel to the Underwriters) reasonably incurred by them in
connection herewith.
(n) The Company and the Trust will not at any time, directly or
indirectly, take any action intended, or which might reasonably be expected, to
cause or result in, or which will constitute, stabilization of the price of the
Preferred Securities to facilitate the sale or resale of any of the Preferred
Securities.
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(o) The Company will not claim the benefit of any usury law
against any holders of Debentures or Preferred Securities.
5. Conditions of Obligations of the Underwriters. The obligations of
each Underwriter hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become
effective shall be or have been received by the Representative[s] not later than
5:00 P.M., New York City time, on the date of this Agreement or at such later
date and time as shall be consented to in writing by the Representative[s] and
all filings required by Rule 424 of the Rules and Regulations and Rule 430A
shall have been made.
(b) (i) No Stop Order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall be pending or threatened by the Commission; (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or registration
of the Offered Securities under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the Commission
or such authorities, and (iv) after the date hereof no amendment or supplement
to the Registration Statement or the Prospectus shall have been filed unless a
copy thereof was first submitted to the Representative[s] and the
Representative[s] did not object thereto in good faith, and the
Representative[s] shall have received a certificate dated the Closing Date and
signed by the chief executive officer or a vice president and the principal
financial or accounting officer of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to the effect
of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus (i) there shall not have been a
material adverse change in the general affairs, business, business prospects,
properties, management, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, considered as one enterprise,
whether or not arising from transactions in the ordinary course of business, in
each case other than as set forth in or contemplated by the Registration
Statement and the Prospectus, and (ii) neither the Company nor any of its
Subsidiaries shall have sustained any material loss or interference with its
business or properties from fire, explosion, flood or other casualty, whether or
not covered by insurance, or from any labor dispute or any court or legislative
or other governmental action, order or decree, which is not set forth in the
Registration Statement and the Prospectus, if in the judgment of the
Representative[s] any such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Offered Securities by the Underwriters
in accordance with the terms hereof and thereof.
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(d) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Trust, the Company or any
of its Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any Federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, in which litigation or proceeding an unfavorable ruling, decision or
finding would materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries taken as a whole.
(e) Each of the representations and warranties of the Company and
the Trust contained herein shall be true and correct in all material respects on
the Closing Date and, with respect to the Option Securities, on the Option
Closing Date, if applicable, as if made on the Closing Date, or on the Option
Closing Date, if applicable, and all covenants and agreements herein contained
to be performed on the part of the Trust and the Company and all conditions
herein contained to be fulfilled or complied with by the Company or the Trust on
or prior to the Closing Date and, with respect to the Option Securities, on or
prior to the Option Closing Date, if applicable, shall have been duly performed,
fulfilled or complied with.
(f) The Representative[s] shall have received an opinion of
Cravath, Swaine & ▇▇▇▇▇, counsel for the Trust and the Company, dated the
Closing Date and with respect to the Option Securities, the Option Closing Date,
to the effect set forth in Exhibit A hereto, addressed to the Underwriters.
(g) The Representative[s] shall have received an opinion of
Cravath, Swaine & ▇▇▇▇▇, special tax counsel for the Trust and the Company,
dated the Closing Date and with respect to the Option Securities, the Option
Closing Date, to the effect set forth in Exhibit D hereto, addressed to the
Underwriters.
(h) The Representative[s] shall have received an opinion of
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, dated the Closing Date and
with respect to the Option Securities, the Option Closing Date, to the effect
set forth in Exhibit B hereto, addressed to the Underwriters.
(i) The Representative[s] shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Trust, dated the
Closing Date and with respect to the Option Securities, the Option Closing Date,
to the effect set forth in Exhibit C hereto, addressed to the Underwriters.
(j) On the Closing Date, the Representative[s] shall have
received a certificate of the Company, in its capacity as Sponsor of the Trust
and on its own behalf, and of the chief financial officer, the controller or the
treasurer of the Company, dated the Closing Date, to the effect that the
conditions set forth in this Section 5 have been satisfied,
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that as of the date hereof and on the Closing Date, the representations and
warranties of the Trust and the Company set forth in Section 3 hereof are true
and correct in all material respects, and that on the Closing Date, each of the
covenants and obligations of the Trust and the Company to be performed hereunder
on or prior to the Closing Date have been duly performed in all material
respects. In addition, such certificate shall state that the signer of such
certificate has carefully examined the Registration Statement and the Prospectus
(including the documents incorporated by reference therein) and (A) as of the
date of such certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not untrue or misleading
and (B) in the case of the certificate delivered on the Closing Date and the
Option Closing Date, if applicable, since the Effective Date no event has
occurred as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not untrue or misleading in
any material respect and there has been no document required to be filed under
the Exchange Act and the rules and regulations thereunder that upon such filing
would be deemed to be incorporated by reference into the Prospectus that has not
been so filed.
(k) Concurrently with the execution and delivery of this
Agreement, Ernst & Young LLP shall have furnished to the Representative[s] a
letter, dated the date of its delivery, addressed to the Representative[s] and
in form and substance satisfactory to the Representative[s], confirming that
they are independent accountants with respect to the Trust and the Company as
required by the Act and the Rules and Regulations and with respect to the
financial and other statistical and numerical information contained in the
Registration Statement or incorporated by reference therein. On the Closing Date
and, as to the Option Securities, the Option Closing Date, if applicable, Ernst
& Young LLP shall have furnished to the Representative[s] a letter, dated the
date of its delivery, which shall confirm, on the basis of a review in
accordance with the procedures set forth in the letter from Ernst & Young LLP,
that nothing has come to their attention during the period from the date of the
letter referred to in the prior sentence to a date (specified in the letter) not
more than three days prior to the Closing Date and the Option Closing Date, if
applicable, which would require any change in their letter dated the date hereof
if it were required to be dated and delivered on the Closing Date and the Option
Closing Date, if applicable.
(l) The Representative[s] shall have received an opinion, dated
the Closing Date, and, with respect to the Option Securities, the Option Closing
Date, from ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Underwriters, with respect to the
Registration Statement, the Prospectus, and this Agreement, which opinion shall
be satisfactory in all respects to the Representative[s].
(m) The NASD, upon review of the terms of the public offering of
the Preferred Securities, shall have no objections to the fairness of the
underwriting terms and arrangements of the offering.
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(n) The Offered Securities shall be qualified for sale in such
states as the Representative[s] may reasonably request, each such qualification
shall be in effect and not subject to any Stop Order or other proceeding on the
Closing Date or the Option Closing Date, if applicable.
(o) Prior to the Closing Date, the Preferred Securities shall
have been duly authorized for listing by the NYSE upon official notice of
issuance.
(p) The Trust and the Company shall have furnished to the
Representative[s] such certificates, in addition to those specifically mentioned
herein, as the Representative[s] may have reasonably requested as to the
accuracy and completeness on the Closing Date and the Option Closing Date, if
applicable, of any statement in the Registration Statement or the Prospectus or
any documents filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus, as to the accuracy on the Closing Date and the
Option Closing Date, if applicable, of the representations and warranties of the
Trust and the Company herein, as to the performance by the Trust and the Company
of their respective obligations hereunder, or as to the fulfillment of the
conditions concurrent and precedent to the obligations hereunder of the
Representative[s].
(q) If any of the conditions specified in this Section 5 shall
not have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Representative[s] or to Underwriters' Counsel pursuant to this Section 5 shall
not be in all material respects reasonably satisfactory in form and scope to the
Representative[s] and to counsel for the Underwriters, all of the Underwriters'
obligations hereunder may be canceled by the Representative[s] on, or at any
time prior to, the Closing Date. Notice of such cancellation shall be given to
the Trust and the Company in writing, or by telephone, telex or telecopy,
confirmed in writing.
6. Indemnification.
(a) The Trust and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, liabilities, expenses
and damages (including any and all investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party, or
otherwise, or any claim asserted), to which any Underwriter, or any such person,
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, liabilities, expenses or damages arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus or the
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omission or alleged omission to state in such document a material fact required
to be stated in it or necessary to make the statements in it not misleading,
provided that neither the Company nor the Trust will be liable to the extent
that such loss, claim, liability, expense or damage arises from the sale of the
Offered Securities in the public offering to any person by an Underwriter and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company or the Trust by the
Representative[s] on behalf of any Underwriter expressly for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus. This
indemnity agreement will be in addition to any liability which the Trust and the
Company might otherwise have including under this Agreement.
(b) Each Underwriter will indemnify and hold harmless (i) the
Trust, the Trustees, its officers who sign the Registration Statement and any
person controlling the Trust with the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the Company, its directors, its officers
who shall have signed the Registration Statement, and each other person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, in each case to the same extent as the foregoing
indemnity from the Trust and the Company to each Underwriter, but only insofar
as losses, liabilities, claims, expenses or damages arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission,
made in reliance on and in conformity with written information furnished to the
Trust or the Company by the Representative[s] expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus. This
indemnity will be in addition to any liability that each Underwriter may
otherwise have, including under this Agreement; provided, however,that in no
case shall any Underwriter be liable or responsible for any amount in excess of
the compensation payable to such Underwriter pursuant to Section 1(c) hereof.
(c) Any party that proposes to assert the right to be indemnified
under this Section 6 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 6, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume
the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other
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expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party),
or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld). No indemnifying party shall,
without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section
6 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Trust and the Company or the
Underwriters, the Trust, the Company and the Underwriters shall contribute to
the aggregate losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Trust or the Company, any contribution
received by the Trust or the Company from persons other than the Underwriters,
such as persons who control the Trust or the Company within the meaning of the
Act and directors and officers of the Company) to which the Trust, the Company
and any one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Trust and the
Company on the one hand and the Underwriters on the other. The relative benefits
received by the Trust and the Company on the one hand and the Underwriters on
the other shall be
22
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deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Trust bear to the total compensation
received by the Underwriters pursuant to Section 1(c) hereof, respectively, in
each case as set forth in the table on the cover page of the Prospectus. If, but
only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Trust and the Company on
the one hand and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, liability, expense or damage, or
action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. The relative fault of the Trust
and the Company on the one hand and of the Underwriters on the other 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 related to information supplied by the Trust or the Company or
the Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Trust, the Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section 6(d)
shall be deemed to include, for purpose of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Underwriter shall be required to contribute
any amount in excess of the compensation received by it pursuant to Section 1(c)
hereof, and no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 6(d) are
several in proportion to their respective underwriting obligations and not
joint. For purposes of this Section 6(d), any person who controls a party to
this Agreement within the meaning of the Act will have the same rights to
contribution as that party, and each officer of the Trust and the Company who
signed the Registration Statement will have the same rights to contribution as
the Trust and the Company, respectively, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 6(d), will notify any such party or
parties from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 6(d). No party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained in
this Agreement
23
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shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of the Underwriters, (ii) acceptance of any
of the Offered Securities and payment therefor, or (iii) any termination of this
Agreement.
7. Termination. The obligations of the several Underwriters under
this Agreement may be terminated at any time on or prior to the Closing Date
(or, with respect to the Option Securities, on or prior to the Option Closing
Date), by notice to the Trust and the Company from the Representative[s],
without liability on the part of any Underwriter to the Trust or the Company,
if, prior to delivery and payment for the Preferred Securities (or the Option
Securities, as the case may be), in the sole judgment of the Representative[s],
(i) trading in any of the equity securities of the Company shall have been
suspended by the Commission, by an exchange that lists the Preferred Securities
or by the Nasdaq Stock Market, (ii) trading in securities generally on the NYSE
shall have been suspended or limited or minimum or maximum prices shall have
been generally established on such exchange, or additional material governmental
restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by such exchange or by order of the
Commission or any court or other governmental authority, (iii) a general banking
moratorium shall have been declared by either Federal or New York State
authorities, or (iv) any material adverse change in the financial or securities
markets in the United States or in political, financial or economic conditions
in the United States or any outbreak or material escalation of hostilities or
declaration by the United States of a national emergency or war or other
calamity or crisis shall have occurred, the effect of any of which is such as to
make it, in the sole judgment of the Representative[s], impracticable or
inadvisable to market the Offered Securities on the terms and in the manner
contemplated by the Prospectus.
8. Substitution of Underwriters. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Firm Securities which
it or they have agreed to purchase hereunder, and the aggregate principal amount
of Firm Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Firm Securities, the other Underwriters shall be obligated,
severally, to purchase the Firm Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase, in the proportions which
the principal amount of Firm Securities which they have respectively agreed to
purchase pursuant to Section 1 bears to the aggregate principal amount of Firm
Securities which all such non-defaulting Underwriters have so agreed to
purchase, or in such other proportions as the Representative[s] may specify;
provided that in no event shall the maximum principal amount of Firm Securities
which any Underwriter has become obligated to purchase pursuant to Section 1 be
increased pursuant to this Section 8 by more than one-ninth of the principal
amount of Firm Securities agreed to be purchased by such Underwriter without the
prior written consent of such Underwriter. If any Underwriter or Underwriters
shall fail or refuse to purchase any Firm Securities and the aggregate principal
amount of Firm Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase exceeds one-tenth of the aggregate
principal amount of the Firm Securities and arrangements satisfactory to the
Representative[s] and the Trust and the
24
25
Company for the purchase of such Firm Securities are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Trust and the Company for the purchase
or sale of any Preferred Securities under this Agreement. In any such case
either the Representative[s] or the Trust and the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken pursuant to this Section 8 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. Miscellaneous. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Trust, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ Attention: Treasurer, ▇▇▇▇▇ ▇▇▇▇▇▇ Group, Inc., or (b) if
to the Company, at the office of the Company, 1285 Avenue of the Americas, New
York, New York, Attention: Treasurer, ▇▇▇▇▇ ▇▇▇▇▇▇ Group, Inc., or (c) if to the
Underwriters, to the Representative[s] at the offices of PaineWebber
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department. Any such notice shall be effective only upon
receipt. Any notice under Section 8 or 9 may be made by telex or telephone, but
if so made shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters and the Trust and the Company and of the controlling
persons, directors and officers referred to in Section 6, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as used
in this Agreement shall not include a purchaser, as such purchaser, of Offered
Securities from any of the several Underwriters.
All representations, warranties and agreements of the Trust and the
Company contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or any of their
controlling persons and shall survive delivery of and payment for the Preferred
Securities hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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26
The Trust, the Company and the Underwriters each hereby irrevocably
waive any right they may have to trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Representative[s], the Trust and the Company.
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Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Company and the several Underwriters.
Very truly yours,
PWG CAPITAL TRUST [ ]
a Delaware business trust
By: ▇▇▇▇▇ ▇▇▇▇▇▇ GROUP INC.
as Sponsor
By: _______________________________
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ GROUP INC.
By: _______________________________
Title:
Confirmed as of the date first
above mentioned:
PAINEWEBBER INCORPORATED
[Other Representatives]
Acting on behalf of [itself] [themselves]
and as the Representative[s] of the
other several Underwriters
named in Schedule I hereof.
By: PAINEWEBBER INCORPORATED
By: _______________________________
Title:
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SCHEDULE I
UNDERWRITERS
Number of
Firm
Securities
Name of to be
Underwriters Purchased
PaineWebber Incorporated
----------
Total ...............................
==========
29
EXHIBIT A
TO
UNDERWRITING AGREEMENT
FORM OF
OPINION OF CRAVATH, SWAINE & ▇▇▇▇▇
[TO COME]
A-1
30
EXHIBIT B
TO
UNDERWRITING AGREEMENT
FORM of OPINION of
[General Counsel of ▇▇▇▇▇ ▇▇▇▇▇▇ Group Inc.]
[TO COME]
B-1
31
EXHIBIT C
TO
UNDERWRITING AGREEMENT
FORM OF OPINION OF
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER
SPECIAL DELAWARE COUNSEL
_________ __, 1996
To Each of the Persons Listed
on Schedule I Hereto
Re: PWG Capital Trust [ ]
Ladies and Gentlemen:
We have acted as special Delaware counsel for PWG Capital Trust
[ ], a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
_________ __, 1996 (the "Certificate"), as filed in
the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on __________ __,
1996;
(b) The Declaration of Trust of the Trust, dated as of
_________ __, 1996, among ▇▇▇▇▇ ▇▇▇▇▇▇ Group Inc., a
Delaware corporation ("▇▇▇▇▇ ▇▇▇▇▇▇"), and the
trustees of the Trust named therein;
(c) The Amended and Restated Declaration of Trust of the
Trust, dated as of _______ __, 1996 (including
Exhibits __, __ and __ thereto) (the "Declaration"),
among ▇▇▇▇▇ ▇▇▇▇▇▇, the trustees of the Trust named
therein (collectively, the "Trustees") and the
holders, from time to time, of undivided beneficial
interests in the assets of the Trust;
(d) The Underwriting Agreement, dated ____________, 1996
(the "Underwriting Agreement"), among the Trust,
▇▇▇▇▇ ▇▇▇▇▇▇ and PaineWebber Incorporated,
individually and as Representative[s] of the several
underwriters named in Schedule I thereto (the
"Underwriters");
C-1
32
(e) The Prospectus, dated ____________, 1996 (the
"Prospectus"), relating to the issuance of ___ shares
of the __% Preferred Trust Securities of the Trust
representing preferred undivided beneficial interests
in the assets of Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust, dated the
date hereof, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (f) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (f) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation,and
termination of the Trust, and that the Declaration and the Certificate are in
full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation, due formation or due
organization, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, formation or organization, (iii) the legal capacity of
each natural person who is a party to the documents examined by us, (iv) except
to the extent provided in paragraph 4 below, that each of the parties to the
documents examined by us has the power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) except to the extent
provided in paragraph 5 below, that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom a Preferred Security is to be issued by the
Trust (the "Holders") of a Preferred Securities Certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Declaration and the Prospectus, (vii) that the
C-2
33
Preferred Securities are issued and sold to the Holders in accordance with the
Declaration and the Prospectus, (viii) that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the Delaware
Business Trust Act and the filing of documents with the Secretary of State) or
employees in the State of Delaware, and (ix) that the Trust is treated as a
grantor trust for federal income tax purposes. We have not participated in the
preparation of the Prospectus and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. 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.
2. 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,
all as described in the Prospectus.
3. The Declaration constitutes a valid and binding obligation of ▇▇▇▇▇
▇▇▇▇▇▇ and the Trustees, and is enforceable against ▇▇▇▇▇ ▇▇▇▇▇▇ and the
Trustees, in accordance with its terms.
4. 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 Underwriting Agreement, and (ii) to issue and perform its
obligations under the Preferred Securities.
5. Under the Delaware Business Trust Act and the Declaration, the
execution and delivery by the Trust of the Underwriting Agreement and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the
Declaration and are duly and validly issued and, subject to the qualifications
set forth herein, fully paid
C-3
34
and nonassessable undivided beneficial interests in the assets of the Trust and
are entitled to the benefits of the Declaration. The Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Holders may be obligated, pursuant to the Declaration, (i) to provide indemnity
and/or security in connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities Certificates and the
issuance of replacement Preferred Securities Certificates, and (ii) 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.
7. The Common Securities have been duly authorized by the Declaration
and, when issued and sold in accordance with the Declaration, represent validly
issued beneficial interests in the assets of the Trust.
8. Under the Delaware Business Trust Act, the certificate attached to
the Declaration as Exhibit is an appropriate form of certificate to evidence
ownership of the Preferred Securities.
9. Under the Delaware Business Trust Act and the Declaration, the
issuance of the Preferred Securities is not subject to preemptive rights.
10. The issuance and sale by the Trust of the Preferred Securities, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated thereby and
compliance by the Trust with its obligations thereunder do not violate (i) any
of the provisions of the Certificate or the Declaration, or (ii) any applicable
Delaware law or administrative regulation.
11. No authorization, approval, consent or order of any Delaware court
or Delaware governmental authority or agency is required to be obtained by the
Trust solely in connection with the issuance and sale of the Preferred
Securities.
12. The Holders of the Preferred Securities (other than those Holders
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.
The opinion expressed in paragraph 3 above is subject, as to
enforcement, to the effect upon the Declaration of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent transfer and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
C-4
35
We consent to your relying as to matters of Delaware law upon this
opinion in connection with the Underwriting Agreement. We also consent to
__________'s relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them to the Underwriters pursuant to
the Underwriting Agreement. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other person for any purpose.
Very truly yours,
C-5
36
EXHIBIT D
TO
UNDERWRITING AGREEMENT
FORM OF OPINION OF
CRAVATH, SWAINE & ▇▇▇▇▇
(special tax counsel for the Trust and the Company)
[TO COME]
D-1
