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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) August 4, 1997
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BRUNSWICK CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
1-1043 36-0848180
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(Commission File Number) (I.R.S. Employer Identification No.)
1 N. Field Ct., Lake Forest, Illinois 60045-4811
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(Address of Principal Executive Offices) (Zip Code)
(847) 735-4700
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On August 4, 1997, Brunswick Corporation closed an offering of
$200,000,000 7 1/8% Notes due August 1, 2027.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
See Index to Exhibits.
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SIGNATURES
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
Dated: August 20, 1997 By: /s/ Richard S. O'Brien
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Richard S. O'Brien
Vice President and Treasurer
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INDEX TO EXHIBITS
Document Description
Exhibit No.
1.1 Underwriting Agreement, dated July 30, 1997, between
Brunswick Corporation and the Underwriters Named in
Schedule I thereto.
4.1 Form of 7 1/8% Note due August 1, 2027.
<PAGE>
Exhibit No. 1.1
BRUNSWICK CORPORATION
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT
July 30, 1997
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 will be prepared and 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
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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.
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(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 sub sidiaries 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 enter prise.
(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
18295599.2 80897 1952C 96301999
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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 ef fect 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 enforce ment 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
18295599.2 80897 1952C 96301999
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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 (in cluding 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 modi
fication 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.
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(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
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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
18295599.2 80897 1952C 96301999
<PAGE>
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.
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<PAGE>
(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 regis tration 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 sup
plements 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
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<PAGE>
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.
(i) 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
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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 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 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.
18295599.2 80897 1952C 96301999
<PAGE>
(2) The favorable opinion, dated as of the Closing Time, of Mary
D. Allen, General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) To the best of her 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 her 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 her
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 her knowledge and information, there are no legal or governmental
proceedings pending or threat ened 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 her 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.
18295599.2 80897 1952C 96301999
<PAGE>
(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, Ms.
Allen 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 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 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 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
18295599.2 80897 1952C 96301999
<PAGE>
statements and supporting schedules of the Company and its subsidiaries
included in or incor porated 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 consoli dated
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.
18295599.2 80897 1952C 96301999
<PAGE>
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
18295599.2 80897 1952C 96301999
<PAGE>
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
18295599.2 80897 1952C 96301999
<PAGE>
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 (ii) 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.
18295599.2 80897 1952C 96301999
<PAGE>
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.
18295599.2 80897 1952C 96301999
<PAGE>
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 Mary D.
Allen, 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
18295599.2 80897 1952C 96301999
<PAGE>
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.
18295599.2 80897 1952C 96301999
<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: /s/ 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
/s/ Lani Martin
Name: Lani Martin
Title: Vice President
For itself and as Representatives of the
other Underwriter named in Schedule I
attached to the Underwriting Agreement.
18295599.2 80897 1952C 96301999
<PAGE>
SCHEDULE I
Principal Amount
of Securities
Underwriters to Be Purchased
- ------------ ----------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated....................................... $50,000,000
ABN AMRO Chicago Corporation............................... 50,000,000
Credit Suisse First Boston Corporation..................... 50,000,000
Smith Barney, Inc.......................................... 50,000,000
----------
Total.................................... $200,000,000
============
18295599.2 80897 1952C 96301999
I-1
<PAGE>
SCHEDULE II
Underwriting Agreement dated July 30, 1997
Registration Statement Nos. 33-61512 and 333-9997
Representative(s): Merrill Lynch, Pierce, Fenner & Smith
Incorporated
ABN AMRO Chicago Corporation
Credit Suisse First Boston Corporation
Smith Barney Inc.
Title, Purchase Price and Description of Securities;
Title: 71/8% Notes due August 1, 2027
Principal amount: $200,000,000
Current ratings: Moody's Investors Service - Baa1
Standard & Poor's - BBB+
Interest rate: 71/8%
Interest payment dates: February 1 and August 1
Date of maturity: August 1, 2027
Price to public: 99.291%
Commission: .875%
Purchase price to Underwriters: 98.416%
Sinking fund provisions: None
Redemption provisions: The Notes may be redeemed at any
time at the option of the Company,
in whole or in part, at the Redemption
Price as defined in the Prospectus
Supplement dated July 30, 1997.
Other provisions: None
Closing Date, Time and Location: August 4 1997, 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
18295599.2 80897 1952C 96301999
II-1
<PAGE>
Wire Transfer Instructions:
First Chicago NBD
ABA #: 071000013
Credit to: Brunwick Corporation
Account #: 0500259
Delayed Delivery Arrangements: None
Listing requirements: None
Other: None
18295599.2 80897 1952C 96301999
II-2
<PAGE>
Exhibit No. 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.: 1 $200,000,000
CUSIP No.: 117043 AG 4
BRUNSWICK CORPORATION
7 1/8% NOTE DUE AUGUST 1, 2027
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 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 August 1, 2027, 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 February 1 and August 1 of each year
beginning February 1, 1998, 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 August 4, 1997, until payment of said principal sum
has been made or duly provided for.
The interest so payable on any February 1 or August 1 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 January 15 or July 15 next preceding such February 1 or
August 1 (whether or not such January 15 or July 15 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
3257400.3 80897 1944C 96301999
<PAGE>
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
$200,000,000.
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.
3257400.3 80897 1944C 96301999
<PAGE>
The Notes are not entitled to the benefit of any mandatory or
optional sinking fund. However, the Notes may be redeemed at any time at
the option of the Company, in whole or from time to time in part, at a
redemption price equal to the sum of (i) the principal amount of the Notes
being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined below), if any, with respect to such
Notes (the "Redemption Price").
If the notice of redemption has been given as provided in the
Indenture and funds for the redemption of any Notes called for redemption
have been made available on the redemption date referred to in such notice,
such Notes will cease to bear interest on the date fixed for such
redemption specified in such notice and the only right of the Holders of
the Notes from and after the redemption date will be to receive payment of
the Redemption Price upon surrender of such Notes in accordance with such
notice.
Notice of any optional redemption of any Notes will be given to
Holders at their addresses, as shown in the security register for the
Notes, not more than 60 nor less than 30 days prior to the date fixed for
redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Notes held by such Holder
to be redeemed.
If less than all the Notes are to be redeemed at the option of the
Company, the Company will notify the Trustee at least 45 days prior to
giving notice of redemption (or such shorter period as may be satisfactory
to the Trustee) of the aggregate principal amount of Notes to be redeemed
and their redemption date. The Trustee shall select, in such manner as it
shall deem fair and appropriate, Notes to be redeemed in whole or in part.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption of any Notes, the excess, if any, of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest accrued to the
date of redemption) that would have been payable in respect of each such
dollar if such redemption had not been made, determined by discounting, on
a semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date notice of such
redemption is given) from the respective dates on which such principal and
interest would have been payable if such redemption had not been made, to
the date of redemption, over (ii) the aggregate principal amount of the
Notes being redeemed.
"Reinvestment Rate" means the yield on treasury securities at a
constant maturity corresponding to the remaining life (as of the date of
redemption, and rounded to the nearest month) to Stated Maturity of the
principal being redeemed (the "Treasury Yield"), plus .15% . For purposes
hereof, the Treasury Yield shall be equal to the arithmetic mean of the
yields published in the Statistical Release under the heading "Week Ending"
for "U.S. Government Securities - - Treasury Constant Maturities" with a
maturity equal to such remaining life; provided, that if no published
maturity exactly corresponds to such remaining life, then the Treasury
Yield shall be interpolated or extrapolated on a straight-line basis from
the arithmetic mean of the yields for the next shortest and/or next longest
published maturities, as applicable, rounding each of such relevant periods
to the nearest month. For purposes of calculating the
3257400.3 80897 1944C 96301999
<PAGE>
Reinvestment Rate, the most recent Statistical Release published prior to
the date of determination of the Make-Whole amount shall be used. If the
format or content of the Statistical Release changes in a manner that
precludes determination of the Treasury Yield in the above manner, then the
Treasury Yield shall be determined in the manner that most closely
approximates the above manner, as reasonably determined by the Company.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under
the Indenture, then such other reasonably comparable index which shall be
designated by the Company.
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.
3257400.3 80897 1944C 96301999
<PAGE>
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 an imprint of its corporate seal to be affixed hereto,
and attested by the signature of its Secretary.
Dated: August 4, 1997
Brunswick Corporation
[Seal]
/s/ Richard S. O'Brien
----------------------
Richard S. O'Brien
Vice President and Treasurer
ATTEST:
/s/ Mary D. Allen
- -----------------
Mary D. Allen
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/ D.G. Donovan
------------------
Name: D.G. Donovan
Its: Assistant Vice President
Dated: August 4, 1997
3257400.3 80897 1944C 96301999
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