<PAGE>
<PAGE>
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) December 10, 1996
---------------------
BRUNSWICK CORPORATION
- ----------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware
- -----------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation)
1-1043 36-0848180
- ------------------------------------ --------------------------------------
(Commission File Number) (I.R.S. Employer Identification No.)
1 N. Field Ct., Lake Forest, Illinois 60045-4811
- ------------------------------------------------------------------------------
(Address of Principal Executive Offices)
(847) 735-4700
- -----------------------------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
Not Applicable
- -----------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
==============================================================================
Item 5. Other Events.
On December 10, 1996, Brunswick Corporation closed an offering of
$250,000,000 6 3/4% Notes due December 15, 2006.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
See Index to Exhibits.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRUNSWICK CORPORATION
By: /s/ Peter B. Hamilton
-----------------------------------
Peter B. Hamilton
Senior Vice President and Chief
Financial Officer
Date: December 12, 1996
<PAGE>
INDEX TO EXHIBITS
Document Description
--------------------
Exhibit
No.
- ------
1.1 Underwriting Agreement, dated December 5, 1996 between Brunswick
Corporation and the Underwriters Named in Schedule I thereto.
4.1 Form of 6 3/4% Note due December 15, 2006
<PAGE>
Exhibit 1.1
BRUNSWICK CORPORATION
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT
December 5, 1996
To the Underwriters named in Schedule I
Ladies and Gentlemen:
Brunswick Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the underwriter or underwriters named in Schedule I
attached hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom you are acting as representatives (the "Representatives"),
certain of its debt securities (the "Securities") specified in Schedule II
attached hereto, on the terms and conditions stated herein and in Schedule II.
The Securities will be issued under an Indenture, dated as of March 15, 1987
(the "Indenture"), between the Company and Harris Trust and Savings Bank, as
successor to Continental Bank, National Association, as trustee (the
"Trustee"). If the firm or firms listed in Schedule I hereto include only the
firm or firms listed in Schedule II hereto, the terms "Underwriter" and
"Representatives" shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") two registration statements on Form S-3 (No. 33-61512 and
333-9997), including a basic prospectus, relating to certain of its securities,
including the Securities, and the offering thereof from time to time, in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"1933 Act"), and has filed such amendments thereto as may have been required to
the date hereof. Such registration statements, as amended, have been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). As provided in
Section 3(a), a prospectus supplement reflecting the terms of the Securities,
the terms of the offering thereof and the other matters set forth therein has
been prepared and will be filed pursuant to Rule 424 under the 1933 Act. Such
prospectus supplement, in the form first filed on or after the date hereof
pursuant to Rule 424, is herein referred to as the "Prospectus Supplement."
Such registration statements, as amended at the date hereof, including the
exhibits thereto and the documents incorporated by reference therein, is herein
called the "Registration Statement," and the basic prospectus included therein
relating to all offerings of securities under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein called the "Prospectus,"
except that, if such basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed pursuant to Rule
424, the term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case
including the documents filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), that are
incorporated by reference therein. All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
You have advised us that you and the other Underwriters, acting severally
and not jointly, desire to purchase the Securities and that you have been
authorized by the other Underwriters to execute this Agreement on their behalf.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to and agrees with each
Underwriter as follows:
(i) At the time the Registration Statement became effective
(the "Effective Time") and at the date hereof the Registration Statement and
the Prospectus complied in all material respects with the requirements of the
1933 Act, the rules and regulations of the Commission thereunder (the "1933 Act
Regulations"), the 1939 Act and the rules and regulations of the Commission
thereunder (the "1939 Act Regulations"); at the Effective Time and at the date
hereof, the Registration Statement did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; at the Effective Time
and at the Closing Time, the Indenture did or will conform in all material
respects to the applicable requirements of the 1939 Act and the 1939 Act
Regulations; and the Prospectus, at the Effective Time, at the date hereof and
at the Closing Time, did not or will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to that part of the Registration
Statement which shall constitute the Statement of Qualification of the Trustee
on Form T-1 under the 1939 Act or to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by the Trustee or any
Underwriter through the Representatives expressly for use in the Registration
Statement or Prospectus or any amendment or supplement thereto.
(ii) The accountants who certified the financial statements
and supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations for the periods specified; except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business and (B) there have
been no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement and the Indenture;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(vi) Each subsidiary of the Company which is a significant
subsidiary (a "Subsidiary") as defined in Rule 405 of the 1933 Act Regulations
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; all of the issued
and outstanding capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and nonassessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vii) The Indenture and each supplement thereto, if any, to
the date hereof have been duly authorized, executed and delivered by the
Company, has been duly qualified under the 1939 Act, and, assuming due
authorization, execution and delivery by the Trustee, constitutes a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be subject to (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (B) general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Indenture conforms in all material
respects to the description thereof contained in the Prospectus.
(viii) When executed, authenticated, issued and delivered in
the manner provided for in the Indenture and sold and paid for as provided
herein, the Securities will constitute legal, valid and binding obligations of
the Company, entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, except as enforcement thereof may
be subject to (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and (B) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
Securities conform in all material respects to the description thereof
contained in the Prospectus.
(ix) Neither the Company nor any of the Subsidiaries is in
violation of its charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any of the Subsidiaries is subject; and the execution, delivery and
performance of this Agreement and the Indenture, the issuance and delivery of
the Securities and the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and will
not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
of the Subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any of the
Subsidiaries under any applicable law, administrative regulation or
administrative or court decree.
(x) Other than as disclosed in the Registration Statement,
there is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
Subsidiaries, which is required to be disclosed in the Registration Statement,
or which might result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospectus of the Company and its subsidiaries considered as one enterprise, or
which might materially and adversely affect the properties or assets thereof or
which might materially and adversely affect the consummation of this Agreement
or the issuance of the Securities pursuant to the Indenture; all pending legal
or governmental proceedings to which the Company or any subsidiary is a party
or of which any of their respective property or assets is the subject which are
not described in the Registration Statement, including ordinary routine
litigation incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xi) The Company and the Subsidiaries own or possess, or can
acquire on reasonable terms, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "patent and
proprietary rights") presently employed by them in connection with the business
now operated by them, and neither the Company nor any of the Subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any patent or proprietary
rights, or of any facts which would render any patent and proprietary rights
invalid or inadequate to protect the interest of the Company or any of the
Subsidiaries therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
(xii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Securities hereunder, except such as may be required
under the 1933 Act, the 1933 Act Regulations, the 1939 Act, the 1939 Act
Regulations or state securities laws.
(xiii) The Company and the Subsidiaries possess such
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, and neither the Company nor any of the Subsidiaries has
received any notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(xiv) This Agreement has been duly executed and delivered by
the Company.
(xv) The Company and the Subsidiaries have good and
sufficient title to all property described or referred to in the Registration
Statement as being owned by them, in each case free and clear of all liens,
claims, security interests or other encumbrances, with such exceptions as are
described or referred to in the Registration Statement or as are not material
to the condition, financial or otherwise, or to the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise.
(xvi) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the Commission under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
Closing Time, will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing. On the basis of
the representations and warranties contained herein and subject to the terms
and conditions herein set forth:
(a) The Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule II, the principal amount of the
Securities set forth opposite the name of such Underwriter on Schedule I, plus
any additional principal amount of the Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the date, time and location
specified in Schedule II (unless postponed in accordance with the provisions of
Section 10) or such other date, time and location as shall be agreed upon by
the Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time"). Unless otherwise specified in Schedule
II, payment shall be made to the Company by wire transfer of immediately
available funds, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased
by them. Certificates for the Securities shall be in such denominations and
registered in such names as the Representatives may request in writing at least
two business days prior to the Closing Time. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. You, individually and not as
Representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose money has not been received by the Closing Time but such
payment shall not relieve such Underwriter from its obligations hereunder. The
certificates, which may be in temporary form, for the Securities will be made
available for examination and packaging by the Representatives not later than
10:00 A.M. on the last business day prior to the Closing Time.
Section 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) In connection with the offering of the Securities, the
Company will prepare a Prospectus Supplement setting forth the principal amount
of the Securities covered thereby and their terms not otherwise specified in
the Indenture, the names of the Underwriters and the principal amount of the
Securities which each severally has agreed to purchase, the name of the
Representatives, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the selling
concession and reallowance, if any, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the
1933 Act Regulations and will furnish to the Underwriters named therein as many
copies of any preliminary prospectus supplement and the Prospectus as the
Representatives shall reasonably request.
(b) The Company will notify the Representatives promptly, and
confirm the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act which will be incorporated by reference into the
Prospectus or the Registration Statement, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement or Prospectus,
(iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, (v) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any order preventing or
suspending the use of any Prospectus or the initiation of any proceedings for
any such purpose, and (vi) of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for such purpose of which the Company becomes
aware. The Company will use all reasonable efforts to prevent the issuance of
any stop order or any order preventing or suspending the use of any Prospectus
or suspending such qualification, and, in the event of the issuance of a stop
order or any order preventing or suspending the use of any Prospectus or
suspending such qualifications, to use all reasonable efforts to promptly
obtain the lifting thereof.
(c) The Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representatives with copies of any
such amendment or supplement within a reasonable amount of time prior to such
proposed filing, and will not file any such amendment or supplement to which
the Representatives or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to the Representatives five signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) and as many conformed copies as the Representatives may reasonably
request and will also deliver to the Representatives a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.
(e) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(f) If any event shall occur as a result of which it is necessary
to amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the 1933 Act or the 1934
Act or the respective rules and regulations thereunder, the Company will
forthwith amend the Registration Statement or supplement the Prospectus, as the
case may be (in form and substance reasonably satisfactory to counsel for the
Underwriters), so as to correct such statement or omission or effect such
compliance and the Company will furnish to the Underwriters a reasonable number
of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general consent to
service of process in any jurisdiction. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 50 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month
period beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of the
Registration Statement relating to such Securities.
(i) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(j) The Company will effect the listing of the Securities on the
exchanges, if any, specified in Schedule II.
(k) Until the business day following the Closing Time or such
other date as may be specified in Schedule II, the Company will not, without
the Representatives' prior written consent, directly or indirectly, sell, offer
to sell or announce the offering of, or otherwise dispose of, any debt
securities of the Company covered by the Registration Statement or any other
registration statement filed under the 1933 Act.
(l) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14
or 15 of the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the typing, printing and distribution of
this Agreement and the Indenture, (iii) the preparation, issuance and delivery
of the certificates for the Securities to the Underwriters, including transfer
taxes, if any, payable upon the sale, issuance and delivery to the Underwriters
of the Securities, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(g) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (vii) the printing and delivery to the Underwriters of copies of the
Blue Sky Survey, (viii) the fees of rating agencies, (ix) the fees, if any, of
the National Association of Securities Dealers, Inc., (x) the fees and expenses
of the Trustee, including the fees and disbursements of counsel for the
Trustee, in connection with the Indenture, and (xi) the fees and expenses
incurred in connection with the listing of the Securities on the exchanges
referred to in Section 3(j) hereof.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for such Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase the Securities hereunder are subject to the
accuracy of the representations and warranties of the Company herein contained
as of the date hereof and at Closing Time, to the performance by the Company of
its obligations hereunder and under the Indenture, and to the following further
conditions:
(a) At the Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission and
any request on the part of the Commission for additional information shall have
been complied with to the satisfaction of counsel for the Underwriters and (ii)
the rating assigned by any nationally recognized securities rating agency to
any debt securities of the Company as of the date hereof shall not have been
lowered since the date hereof and no such agency shall have publicly announced
that it has placed any of such debt securities on what is commonly termed a
"watch list" for possible downgrading.
(b) At the Closing Time, the Representatives shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Mayer,
Brown & Platt, counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(ii) The Securities have been duly authorized for issuance
and sale to the Underwriters, and, when issued and delivered by the Company
pursuant to the terms of this Agreement, against payment of the consideration
set forth herein, will constitute legal, valid and binding obligations of the
Company, entitled to the benefits provided by the Indenture, and be enforceable
against the Company in accordance with their terms, subject as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(v) The Indenture has been duly qualified under the 1939
Act.
(vi) The Registration Statement is effective under the 1933
Act and, to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceeding therefor initiated or threatened by the
Commission.
(vii) The Securities conform in all material respects to the
descriptions thereof in the Prospectus and the Prospectus Supplement and the
form of certificate used to evidence the Securities is in due and proper form.
(viii) At the Effective Time and at the date of the
execution of this Agreement, the Registration Statement and the Prospectus
(other than the financial statements and supporting schedules and other
financial or statistical data included therein and in the documents
incorporated by reference into the Registration Statement and the Prospectus,
as to which no opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(ix) To the best of their knowledge and information, there
are no contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto.
(x) No authorization, approval, consent or order of any
court or governmental authority or agency is required in connection with the
offering, issuance or sale of the Securities to the Underwriters, except as may
be required under the 1933 Act, the 1933 Act Regulations, the 1939 Act, the
1939 Act Regulations or state securities laws.
(xi) To the best of their knowledge and information, the
execution, delivery and performance of this Agreement and the Indenture and the
consummation of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder will not conflict
with or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of the Subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of the Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any of the
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company, or
any applicable law, administrative regulation or administrative or court
decree.
(xii) Each document filed pursuant to the 1934 Act (other
than the financial statement and supporting schedules and other financial or
statistical data included therein, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the Prospectus
complied when so filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of Robert T.
McNaney, General Counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) To the best of his knowledge and information, the
Company is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) Each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Registration Statement and, to the best of his knowledge and information,
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction to which such qualification is required, except
where the failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued, is fully paid and nonassessable
and, to the best of his knowledge and information, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(iii) Other than as disclosed in the Registration Statement,
to the best of his knowledge and information, there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Registration Statement, and all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or to which any
of their property is subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material.
(iv) To the best of his knowledge and information, there are
no contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
the descriptions thereof or references thereto are correct, and no default
exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument so described,
referred to, filed or incorporated by reference.
(v) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Registration Statement and to enter into and perform its obligations under
this Agreement and the Indenture.
(3) The favorable opinion, dated as of the applicable Closing Time, of
Cravath, Swaine & Moore, counsel for the Underwriters, with respect to the
issuance and sale of the Securities, the Indenture, the Registration Statement,
the Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require.
(4) In giving their opinions required by subsections (b)(1), (b)(2) and
(b)(3), respectively, of this Section, Mayer, Brown & Platt, Mr. McNaney and
Cravath, Swaine & Moore shall each additionally state that nothing has come to
their attention that has caused them to believe that the Registration Statement
(except for financial statements and schedules and other financial or
statistical data included or incorporated by reference therein, as to which
counsel need make no statement), at the time it became effective or at the date
of this Agreement, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (except for financial
statements and schedules and other financial or statistical data included or
incorporated by reference therein, as to which counsel need make no statement),
at the date of this Agreement or at Closing Time, included an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) At the Closing Time there shall not have been, since the date
of this Agreement or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of such Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of such Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to such Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
(d) At the time of the execution of this Agreement and at the
Closing Time, the Representatives shall have received from Arthur Andersen LLP
letters, dated such dates, in form and substance satisfactory to the
Representatives, to the effect that (i) they are independent public accountants
with respect to the Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations; (ii) it is their opinion that the financial
statements and supporting schedules included in or incorporated by reference
into the Registration Statement and covered by their opinions therein comply as
to form in all material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations and the 1934 Act and 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in such
letters, nothing has come to their attention which causes them to believe that
(A) any unaudited financial statements and supporting schedules of the Company
and its subsidiaries included in or incorporated by reference into the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations and the 1934 Act and 1934 Act Regulations or are
not presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited financial
statements included in or incorporated by reference into the Registration
Statement and the Prospectus, or (B) at a specified date not more than five
days prior to the date of the letters, there has been any change in the capital
stock of the Company or any increase in the consolidated long-term debt of the
Company and its subsidiaries or any decrease in consolidated net current assets
or net assets as compared with the amounts shown in the most recent financial
statements included in or incorporated by reference into the Registration
Statement or, during the period from the date of the most recent financial
statements included in or incorporated by reference into the Registration
Statement to a specified date not more than five days prior to the date of the
letters, there were any decreases, as compared with the corresponding period in
the preceding year, in consolidated revenues, net income or net income per
share of the Company and its subsidiaries, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the examination
referred to in their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in or incorporated by reference into
the Registration Statement and the Prospectus and which are specified by the
Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified in such letters.
(e) Since the time of execution of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the Securities or any
of the Company's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Company's
other Securities.
(f) At the Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
Notwithstanding any such termination, the provisions of Sections 6, 7, and 8
hereof shall remain in effect.
Section 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information
incorporated by reference therein, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or of any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (x) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the information incorporated by
reference therein, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or (y) if such untrue
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in a Prospectus and (i) any
such loss, liability, claim, damage or expense suffered or incurred by any
Underwriter (or any person who controls any Underwriter) resulted from an
action, claim or suit by any person who purchased the Securities which are the
subject thereof from such Underwriter in the offering and (ii) such Underwriter
failed to deliver or provide a copy of the Prospectus to such person at or
prior to the confirmation of the sale of such securities in any case where such
delivery is required by the 1933 Act or the 1933 Act Regulations.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by
Merrill Lynch, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent does not include a statement as to or an admission of fault,
culpability or a failure to act by or n behalf of such indemnified party.
Section 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to the applicable Terms Agreement or (iii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters on the other hand, in connection with the offering of the
Securities pursuant to the applicable Terms Agreements shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial public
offering price of such Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were 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 account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number or aggregate principal
amount, as the case may be, of Initial Underwritten Securities set forth
opposite their respective names in the applicable Terms Agreement, and not
joint.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Company or any Underwriter or
controlling person and shall survive delivery of and payment for the
Securities.
Section 9. Termination.
(a) The Representatives may terminate this Agreement, by notice
to the Company, at any time at or prior to the applicable Closing Time (i) if
there has been, since the date of this Agreement or since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the judgment
of the Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4 hereof. Notwithstanding any such
termination, the provisions of Section 6, 7 and 8 hereof shall remain in
effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the underwriters shall fail at Closing Time to purchase the Securities that
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations under this Agreement bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be purchased
pursuant to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order
to effect any required changes in the Registration Statement, the Prospectus,
the applicable Prospectus Supplement or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Merrill Lynch World Headquarters, North
Tower, World Financial Center, New York, New York 10281-1201; notices to the
Company shall be directed to it at 1 North Field Ct., Lake Forest, Illinois
60045, attention of Robert T. McNaney, General Counsel.
Section 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters named therein and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters named therein and the Company and their respective
successors and the controlling persons and officers and directors referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters named therein and the Company and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representative(s), and for the benefit of no other person, firm or corporation.
No purchaser of any of the Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement shall be governed by
and construed in accordance with the laws of the state of New York applicable
to agreements made and to be performed in said State. Except as otherwise set
forth herein, specified times of day refer to New York City time.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
BRUNSWICK CORPORATION
By: Richard S. O'Brien
------------------------------
Name: Richard S. O'Brien
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Donato de Donato
- -------------------------
Name: Donato de Donato
Title: Vice President
For itself and as Representatives of the
- -----------------------------------------
other Underwriter named in Schedule I
- -------------------------------------
attached to the Underwriting Agreement.
- ---------------------------------------
<PAGE>
SCHEDULE I
Underwriters Principal Amount
- ------------ of Securities
to Be Purchased
---------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...........................
$ 62,500,000
Chase Securities Inc............................... 62,500,000
Lehman Brothers Inc................................ 62,500,000
NationsBanc Capital Markets, Inc................... 62,500,000
-----------
Total.............................................. $250,000,000
===========
<PAGE>
<PAGE>
SCHEDULE II
Underwriting Agreement dated December 5, 1996
Registration Statement Nos. 33-61512 and 333-9997
Representative(s): Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Chase Securities Inc.
Lehman Brothers Inc.
NationsBanc Capital Markets, Inc.
Title, Purchase Price and Description of Securities;
Title: 6 3/4% Notes due December 15, 2006
Principal amount: $250,000,000
Current ratings: Moody's Investors Service - Baa1
Standard & Poor's - BBB+
Interest rate: 6 3/4%
Interest payment dates: June 15 and December 15
Date of maturity: December 15, 2006
Price to public: 99.14%
Commission: .65%
Purchase price to Underwriters: 98.49%
Sinking fund provisions: None
Redemption provisions: None
Other provisions: None
Closing Date, Time and Location: December 10, 1996, 9:00 a.m. Chicago
time
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Type of funds payable at Closing: Wire transfer of immediately
available funds
<PAGE>
Wire Transfer Instructions:
First Chicago NBD
ABA #: 071000013
Credit to: Brunswick Corporation
Account #: 0500259
Delayed Delivery Arrangements: None
Listing requirements: None
Other: None
<PAGE>
Exhibit 4.1
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
REGISTERED PRINCIPAL AMOUNT
No.: $250,000,000
CUSIP No.: 117043 AF 6
BRUNSWICK CORPORATION
6 3/4% NOTE DUE DECEMBER 15, 2006
Brunswick Corporation, a corporation organized and existing under the
laws of the State of Delaware (hereinafter called the "Company", which term
shall include any successor corporation as defined in the Indenture referred to
on the reverse side hereof), for value received, hereby promises to pay to Cede
& Co., or its registered assigns, the sum of TWO HUNDRED FIFTY MILLION DOLLARS
at the principal executive offices of the Company or, at the option of the
registered holder hereof, at the office or agency of the Company in the City of
Chicago, State of Illinois, or in the Borough of Manhattan, the City and State
of New York, on December 15, 2006, in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semiannually on June
15 and December 15 of each year beginning June 15, 1997, on said principal sum
in like coin or currency, at the rate per annum specified in the title of this
Note, from the next preceding date on which interest has been paid or, if no
interest has been paid on the Notes, from December 10, 1996, until payment of
said principal sum has been made or duly provided for.
The interest so payable on any June 15 or December 15 will, subject to
certain exceptions provided in the Indenture referred to herein, be paid to the
person in whose name this Note is registered at the close of business on the
June 1 or December 1 next preceding such June 15, or December 15 (whether or
not such June 1 or December 1 is a business day) at the principal executive
offices of the Company and at its offices or agencies in the City of Chicago,
State of Illinois and the Borough of Manhattan, the City and State of New York,
except that interest may at the option of the Company, be paid by check mailed
to the registered address of such person.
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of March 15, 1987 (herein called the "Indenture"),
between the Company and Harris Trust and Savings Bank, as successor trustee to
Continental Bank, National Association (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Note is one of the series of Securities designated on the first page
hereof (the Securities of such series being herein called the "Notes"), limited
in aggregate principal amount to $250,000,000.
In case an Event of Default (as defined in the Indenture) with respect to
the Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in aggregate principal
amount of the securities of each series to be affected at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the holders of the Securities of such series;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity on any Security of such series, or reduce the rate or extend the
time of payment of interest thereon, or reduce the principal amount thereof, or
make the principal of the Securities of such series or any interest thereon
payable in any coin or currency other than that hereinbefore provided, or
adversely affect the rights of the Securityholders to institute suit for the
enforcement of any payment of principal of or interest on any Security, in each
case without the consent of the holder of each Security of such series so
affected, or (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of all Securities of such series then outstanding. It
is also provided in the Indenture that, prior to any declaration accelerating
the maturity of the Securities of any series, the holders of a majority in
aggregate principal amount of the Securities of such series at the time
outstanding may on behalf of the holders of all of the Securities of such
series waive any past default or Event of Default under the Indenture and its
consequences except a default in the payment of principal of or interest on the
Securities of such series. Any such consent or waiver by the holder of this
Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this Note
and any Note which may be issued in exchange or substitution herefor
irrespective of whether or not any notation thereof is made upon this Note or
such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the place, at the respective times, at the rate and in the coin or currency
herein prescribed.
The Notes are issued in registered form without coupons in denominations
of $1,000 or any integral multiple of $1,000. In the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge, Notes may be exchanged for an equal aggregate principal amount of Notes
of other authorized denominations at the principal executive office of the
Company or, at the option of the registered holder thereof, at its office or
agency maintained for such exchange in the City of Chicago, State of Illinois,
or the Borough of Manhattan, the City and State of New York.
The Notes may not be redeemed prior to the stated maturity date thereof,
nor are the Notes entitled to the benefit of any mandatory or optional sinking
fund.
Except as otherwise provided in this Note, upon due presentment for
registration of transfer of this Note at the principal executive offices of the
Company or, at the option of the person making presentment for registration of
transfer, at its office or agency maintained for such registration in the City
of Chicago, State of Illinois or the Borough of Manhattan, City and State of
New York, a new Note or Notes of authorized denomination for any equal
aggregate principal amount will be issued to the transferee in exchange
herefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith.
The Company, the Trustee, any paying agent or Authenticating Agent and
any Security Registrar may deem and treat the registered holder hereof as the
absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon) for the
purpose of receiving payment hereof or on account hereof, as herein and in the
Indenture provided, and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Authenticating Agent nor any Security
registrar shall be affected by any notice to the contrary. All such payments
shall effectively satisfy and discharge the liability upon this Note to the
extent of the sum or sums so paid.
No recourse for the payment of the principal of or interest on this Note,
or on any claim based hereon or otherwise in respect hereof, and no recourse
under or upon any obligation, covenant or agreement of the Company or the
Indenture or any Indenture supplemental thereto or any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, or officer or director as such, past, present or
future, of the Company or any successor corporation either directly or
indirectly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as a part of the consideration for the issue hereof, expressly
waived and released.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under the Indenture referred to below.
IN WITNESS WHEREOF, Brunswick Corporation has caused this instrument to
be signed in its name by the signature of its Vice President and Treasurer and
a of its corporate seal to be imprinted hereof, and attested by the signature
of its Assistant Secretary.
Dated: December 10, 1996
Brunswick Corporation
[Seal]
/s/ Richard S. O'Brien
Richard S. O'Brien
Vice President and Treasurer
ATTEST:
/s/ Michael D. Schmitz
Michael D. Schmitz
Assistant Secretary
Trustee's Certificate of Authentication:
- ---------------------------------------
This is one of the securities of the series designated therein referred
to in the within-mentioned Indenture.
HARRIS TRUST & SAVINGS BANK, Trustee
By:/s/ Daniel G. Donovan
Name: Daniel G. Donovan
Its: Assistant Vice President
Dated: December 10, 1996
