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EXHIBIT 1.1
JABIL CIRCUIT, INC.
(A DELAWARE CORPORATION)
UNDERWRITING AGREEMENT BASIC TERMS
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TABLE OF CONTENTS
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SECTION 1. Representations and Warranties by the Company........................................................ 4
(a) Compliance with Registration Requirements.......................................................... 4
(b) Incorporated Documents............................................................................. 5
(c) Independent Accountants............................................................................ 5
(d) Financial Statements............................................................................... 5
(e) No Material Adverse Change in Business............................................................. 5
(f) Good Standing of the Company....................................................................... 5
(g) Good Standing of Subsidiaries...................................................................... 6
(h) Capitalization..................................................................................... 6
(i) Authorization, etc. of Agreements.................................................................. 6
(j) Authorization of Common Stock...................................................................... 6
(k) Authorization of Preferred Stock and/or Depositary Shares.......................................... 7
(l) Authorization of Deposit Agreement................................................................. 7
(m) Authorization and Enforceability of the Indenture.................................................. 7
(n) Authorization and Enforceability of the Security Documents......................................... 8
(o) Authorization and Enforceability of Senior Debt Securities and/or
Subordinated Debt Securities, etc.................................................................. 8
(p) Authorization of Warrants.......................................................................... 9
(q) Authorization of Warrant Agreement................................................................. 9
(r) Authorization of Underlying Securities............................................................. 9
(s) Descriptions of the Offered Securities, Underlying Securities, Indentures,
Deposit Agreement and Warrant Agreement............................................................ 10
(t) Absence of Defaults and Conflicts.................................................................. 10
(u) Absence of Further Requirements.................................................................... 11
(v) Absence of Labor Dispute........................................................................... 11
(w) Absence of Proceedings............................................................................. 11
(x) Accuracy of Exhibits............................................................................... 12
(y) Possession of Licenses and Permits................................................................. 12
(z) Possession of Intellectual Property................................................................ 12
(aa) Title to Property.................................................................................. 12
(bb) Investment Company Act............................................................................. 13
(cc) Environmental Laws................................................................................. 13
(dd) Absence of Year 2000 Problem....................................................................... 13
SECTION 2. Purchase and Sale.................................................................................... 14
(a) Initial Securities................................................................................. 14
(b) Option Securities.................................................................................. 14
(c) Payment, Denominations and Registration............................................................ 15
(d) Delayed Delivery Contracts......................................................................... 15
SECTION 3. Covenants of the Company............................................................................. 16
(a) Preparation of Prospectus Supplement............................................................... 16
(b) Continued Compliance With Securities Laws.......................................................... 16
(c) Rule 158........................................................................................... 17
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(d) Filing of Additional Registration Statements or Amendments......................................... 17
(e) Compliance with Commission Requests and Notification of Ratings Changes............................ 17
(f) Delivery of Registration Statements and Prospectuses............................................... 18
(g) Blue Sky Qualifications............................................................................ 18
(h) Compliance with 1934 Act........................................................................... 18
(i) Restriction on Offers and Sales of Securities...................................................... 18
(j) Reservation of Securities.......................................................................... 19
(k) Listing............................................................................................ 19
SECTION 4. Conditions of Underwriters' Obligations.............................................................. 19
(a) Effectiveness of Registration Statement............................................................ 19
(b) Opinions of Counsel................................................................................ 19
(i) Opinion of Counsel for Company................................................................ 19
(ii) Opinion of Local Counsel for Company's Non-U.S. Subsidiaries.................................. 27
(iii)Opinion of Patent Counsel for the Company..................................................... 28
(iv) Opinion of Counsel for Underwriters........................................................... 29
(c) Officer's Certificate.............................................................................. 30
(d) Accountants' Comfort Letters....................................................................... 30
(e) Approval of Listing................................................................................ 31
(f) No Objection....................................................................................... 31
(g) Lock-up Agreements................................................................................. 31
(h) Additional Documents............................................................................... 31
(i) Conditions to Purchase of Option Securities........................................................ 31
SECTION 5. Payment of Expenses.................................................................................. 32
SECTION 6. Indemnification...................................................................................... 34
SECTION 7. Contribution......................................................................................... 36
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....................................... 37
SECTION 9. Termination.......................................................................................... 37
SECTION 10. Default............................................................................................. 38
SECTION 11. Notices............................................................................................. 39
SECTION 12. Parties............................................................................................. 39
SECTION 13. Governing Law....................................................................................... 40
SECTION 14. Counterparts........................................................................................ 40
EXHIBIT A. Terms Agreement..................................................................................... A-1
EXHIBIT B. Delayed Delivery Contract........................................................................... B-1
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JABIL CIRCUIT, INC.
Common Stock, Warrants to Purchase Shares of Common Stock,
Preferred Stock, Warrants to Purchase Shares of Preferred Stock,
Depositary Shares,
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT BASIC TERMS
Jabil Circuit, Inc., a Delaware corporation (the "Company"), may issue
and sell from time to time its (i) shares of Common Stock, par value $0.001 per
share (the "Common Stock"), (ii) warrants to purchase Common Stock (the "Common
Stock Warrants"), (iii) shares of Preferred Stock, par value $0.001 per share
(the "Preferred Stock"), (iv) warrants to purchase Preferred Stock (the
"Preferred Stock Warrants"), (v) senior or subordinated debt securities (the
"Debt Securities"), or (vi) warrants to purchase Debt Securities (the "Debt
Security Warrants"), or any combination thereof, from time to time, in or
pursuant to one or more offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion or exchange provisions (and terms of the
related Underlying Securities (as defined below)) and any other variable terms
as set forth in the applicable certificate of designations, preferences and
rights (each, the "Certificate of Designations, Preferences and Rights")
relating to such series of Preferred Stock. A series of Preferred Stock may be
represented by depositary shares (the "Depositary Shares") that are evidenced by
depositary receipts (the "Depositary Receipts") issued pursuant to a deposit
agreement (each, a "Deposit Agreement") among the Company, the depositary
identified therein (the "Depositary") and the registered holders of the
Depositary Receipts issued thereunder.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture (the "Senior
Indenture"), to be entered into between the Company and The Bank of New York, as
trustee (the "Senior Trustee"), or as subordinated indebtedness (the
"Subordinated Debt Securities") under an indenture (the "Subordinated
Indenture", and collectively with the Senior Indenture, the "Indentures", and
each, an "Indenture"), to be entered into between the Company and The Bank of
New York, as trustee (the "Subordinated Trustee", and collectively with the
Senior Trustee, the "Trustees", and each, a "Trustee"). Each series of Debt
Securities may vary, as applicable, as to title, aggregate principal amount,
rank, interest rate or formula and timing of
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payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements, conversion or exchange provisions (and terms of the
related Underlying Securities) and any other variable terms established by or
pursuant to the applicable Indenture. Senior Debt Securities may be issued with
the benefit of the security provided pursuant to Article 16 of the Senior
Indenture ("Secured Senior Debt Securities") under a pledge agreement or other
similar agreement (the "Pledge Agreement") between the Company and a collateral
agent or other party specified in the Pledge Agreement acting on behalf of the
holders of Secured Senior Debt Securities and the other creditors specified
therein (the "Collateral Agent") and an intercreditor agreement or other similar
agreement (the "Intercreditor Agreement" and, together with the Pledge
Agreement, the "Security Documents") among the Company, the Collateral Agent,
the Senior Trustee and representatives of certain other creditors of the
Company.
Each issue of Common Stock Warrants, Preferred Stock Warrants and Debt
Security Warrants (collectively, the "Warrants") will be issued pursuant to a
separate warrant agreement (each, a "Warrant Agreement") between the Company and
the warrant agent identified therein (each, a "Warrant Agent"). The Warrants may
vary, as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise price(s), expiration date(s) and terms of
the related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, Depositary Shares, Senior
Debt Securities, Subordinated Debt Securities or Debt Security Warrants, or any
combination thereof, initially issuable by the Company and "Underlying
Securities" shall mean the Common Stock, Preferred Stock, Depositary Shares,
Senior Debt Securities or Subordinated Debt Securities issuable upon exercise of
the Warrants, as applicable, or upon conversion of the Preferred Stock,
Depositary Shares, Senior Debt Securities or Subordinated Debt Securities, as
applicable.
Whenever the Company determines to make an offering of Securities, the
Company will enter into an agreement (the "Terms Agreement") providing for the
sale of such securities (the "Offered Securities") to, and the purchase and
offering thereof by, one or more underwriters specified in the Terms Agreement
(the "Underwriters", which term shall include any Underwriters substituted
pursuant to Section 10 hereof). The Terms Agreement relating to the Offered
Securities shall specify the names of the Underwriters participating in such
offering, the amount of Offered Securities which each such Underwriter severally
agrees to purchase, the price at which the Offered Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, the time and place of delivery and payment, such other information as is
indicated in Exhibit A hereto and such other terms as are agreed upon by the
Company and the Underwriters. In addition, each Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Offered Securities to cover over-allotments, if any, and the
amount of Offered Securities subject to such option (the "Option Securities").
As used herein, the term "Offered Securities" shall include the Option
Securities, if any, and "Representatives" shall mean the Underwriter or
Underwriters so specified in the Terms Agreement or, if no Underwriter is so
specified, shall mean each Underwriter. The Terms Agreement may be in the form
of an exchange of any standard form of written telecommunication between the
Underwriters and the Company. The offering of the Offered Securities will be
governed by the Terms Agreement, as supplemented hereby
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(collectively, this "Agreement"), and this Agreement shall inure to the benefit
of and be binding upon each Underwriter participating in the offering of the
Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-_____) for the registration of the Securities and the Underlying Securities,
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and has prepared and filed such amendments thereto as required to the date
hereof. Such registration statement, as amended, has been declared effective by
the Commission, and each Indenture has been qualified under the Trust Indenture
Act of 1939 (the "1939 Act"). Such registration statement, as amended at the
date of the Terms Agreement, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement". Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Offered 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 after the date of the Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". The basic prospectus included in the Registration Statement
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 or, if any revised
prospectus shall be provided to the Underwriters by the Company for their use in
connection with the offering of the Offered Securities which differs from such
basic prospectus and Prospectus Supplement (whether or not required to be filed
by the Company pursuant to Rule 424), the term "Prospectus" shall refer to such
revised prospectus (including any prospectus supplement) from and after the time
it is first provided to the Underwriters for such use, 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. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus, or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
similar references) shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is
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incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter named in the Terms Agreement as of
the date thereof and as of the Closing Time referred to in Section 2(c) hereof,
and as of each Date of Delivery, if any, referred to in Section 2(b) hereof (in
each case, a "Representation Date"), as follows:
(a) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with. Each Indenture has been duly qualified under
the 1939 Act.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on
Form 10-K with the Commission) became effective and at each
Representation Date, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the Commission under the 1939 Act (the "1939
Act Regulations"), and did not and 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 not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any amendments or supplements
thereto were issued and at each Representative Date, included or will
include an untrue statement of a material fact or omitted or will 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. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
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(b) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and 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"), as
applicable, and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued and at each Representation Date, did
not and 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 not misleading.
(c) Independent Accountants. 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.
(d) Financial Statements. The financial statements and any
supporting schedules of the Company and its subsidiaries (and of any
other entity) included in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and
its subsidiaries (or such other entity) as of the dates indicated and
the consolidated results of their operations for the periods specified;
except as stated therein, said financial statements have been prepared
in conformity with U.S. generally accepted accounting principles
applied on a consistent basis; the supporting schedules included in the
Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the pro forma financial
statements and the related notes thereto, if any, included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(e) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement, any Rule 462(b) Registration Statement and the Prospectus,
except as otherwise stated therein or contemplated thereby, (i) 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 (a "Material
Adverse Effect"), (ii) 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, and (iii)
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(f) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties
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and to conduct its business as described in the Prospectus, to enter
into and perform its obligations under this Agreement and to consummate
the transactions contemplated in the Prospectus; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other 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 so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(g) Good Standing of Subsidiaries. (1) Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries") has been duly organized 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 so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Prospectus, all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any Significant Subsidiary
was issued in violation of the preemptive or similar rights of any
securityholder of such Significant Subsidiary.
(h) Capitalization. If applicable, the authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus).
The shares of issued and outstanding capital stock have been duly
authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
(i) Authorization, etc. of Agreements. This Agreement and the
applicable Delayed Delivery Contracts (as defined below), if any, have
been duly authorized, executed and delivered by the Company and, upon
execution and delivery by the Underwriters, will be valid and legally
binding agreements of the Company.
(j) Authorization of Common Stock. If the Offered Securities
include Common Stock, such Offered Securities have been, or as of the
date of the applicable Terms
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(1) If the Offered Securities are Secured Senior Debt Securities, the
representations in this paragraph will cover each Significant Subsidiary
and all other subsidiaries subject to the lien created by the Pledge
Agreement (the "Pledged Subsidiaries").
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Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Agreement. Such Offered Securities, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration therefor specified in this Agreement, will
be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of
the Company. No holder of such Offered Securities is or will be subject
to personal liability solely by reason of being such a holder.
(k) Authorization of Preferred Stock and/or Depositary Shares.
If the Offered Securities include Preferred Stock and/or Depositary
Shares, such Offered Securities have been, or as of the date of the
applicable Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Agreement. The
applicable Preferred Stock, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration
therefor, or for the related Depositary Shares, as the case may be,
specified in the applicable Terms Agreement, will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. In addition,
upon deposit by the Company of any Preferred Stock represented by
Depositary Shares with the applicable Depositary and the execution and
delivery by such Depositary of the Depositary Receipts evidencing such
Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, such Depositary Shares will represent legal and valid
interests in such Preferred Stock. No holder of such Preferred Stock or
Depositary Receipts evidencing Depositary Shares is or will be subject
to personal liability solely by reason of being such a holder. The
applicable Certificate of Designations, Preferences and Rights will be
in full force and effect prior to the Closing Time.
(l) Authorization of Deposit Agreement. If the Offered
Securities include Depositary Shares or if Debt Securities are
convertible into Depositary Shares representing Preferred Stock, the
applicable Deposit Agreement has been, or prior to the issuance of such
Depositary Stock will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, and assuming due authorization, execution and delivery by the
applicable Depositary of the applicable Deposit Agreement, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law). Each registered holder of a Depositary Receipt under
the applicable Deposit Agreement will be entitled to the proportional
rights, preferences and limitations of the Preferred Stock represented
by the Depositary Shares evidenced by such Depositary Receipt and to
such other rights as are granted to such registered holder in such
Deposit Agreement.
(m) Authorization and Enforceability of the Indenture. If the
Offered Securities include Senior Debt Securities and/or Subordinated
Debt Securities, or if Preferred Stock is, or Depositary Shares
representing Preferred Stock are, convertible into Debt
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Securities, each applicable Indenture has been, or prior to the
issuance of the Debt Securities thereunder will have been duly
authorized, executed and delivered by the Company and, assuming due
execution and delivery by the applicable Trustee, will be a valid and
legally binding agreement of the Company enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting enforcement of creditors' rights generally or by
general equity principles, and except further as enforcement thereof
may be limited by (i) requirements that a claim with respect to any
Debt Securities denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority to
limit, delay or prohibit the making of payments outside the United
States.
(n) Authorization and Enforceability of the Security
Documents. If the Offered Securities include Secured Senior Debt
Securities, or if Preferred Stock is, or Depositary Shares representing
Preferred Stock are, convertible into Secured Senior Debt Securities,
each of the Security Documents has been, or prior to the issuance of
the Offered Securities will have been, duly authorized, executed and
delivered by the Company and, assuming due execution and delivery by
the other parties thereto, will be a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles; and the Pledge Agreement, together with delivery of
the certificates evidencing the shares of stock of the Pledged
Subsidiaries pledged thereunder (the "Pledged Shares") and stock powers
executed by the Company in blank to the Collateral Agent, will create a
perfected security interest in the Pledged Shares in favor of such
Collateral Agent for the benefit of the holders of the Secured Senior
Debt Securities and the other persons specified in the Pledge
Agreement, free of any adverse claims.
(o) Authorization and Enforceability of Senior Debt Securities
and/or Subordinated Debt Securities, etc. If the Offered Securities
include Senior Debt Securities and/or Subordinated Debt Securities,
such Offered Securities have been, or as of the date of the applicable
Terms Agreement will have been, duly and validly authorized for
issuance, offer and sale pursuant to this Agreement and each Delayed
Delivery Contract, if any, and when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the applicable
Indenture against payment of the consideration therefor, the Offered
Securities will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles, and except further as enforcement thereof may be
limited by (i) requirements that a claim with respect to any Offered
Securities denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority
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to limit, delay or prohibit the making of payments outside the United
States. Each Holder (as defined in the applicable Indenture) of Offered
Securities will be entitled to the benefits of such Indenture.
(p) Authorization of Warrants. If the Offered Securities
include Warrants, such Offered Securities have been, or as of the date
of the applicable Terms Agreement will have been, duly authorized by
the Company for issuance and sale pursuant to this Agreement. Such
Offered Securities, when issued and authenticated in the manner
provided for the applicable Warrant Agreement and delivered against
payment of the consideration therefor specified in the applicable Terms
Agreement, will constitute valid and binding obligations of the
Company, entitled to the benefits provided by such Warrant Agreement
and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(q) Authorization of Warrant Agreement. If the Offered
Securities include Warrants, each applicable Warrant Agreement has
been, or prior to the issuance of such Offered Securities will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, and assuming due
authorization, execution and delivery by the applicable Warrant Agent
of the applicable Warrant Agreement, will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(r) Authorization of Underlying Securities. If the Underlying
Securities related to the Offered Securities include Common Stock,
Preferred Stock or Depositary Shares, such Underlying Securities have
been, or as of the date of the applicable Terms Agreement will have
been, duly authorized and reserved for issuance by the Company upon
exercise of the Common Stock Warrants or Preferred Stock Warrants, as
applicable, or upon conversion of the related Preferred Stock,
Depositary Shares, Senior Debt Securities or Subordinated Debt
Securities, as applicable. If the Underlying Securities include Common
Stock or Preferred Stock, such Underlying Securities, when issued upon
such exercise or conversion, as applicable, will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. If the
Underlying Securities include Depositary Shares, such Underlying
Securities, upon deposit by the Company of the Preferred Stock
represented thereby with the applicable Depositary and the execution
and delivery by such Depositary of the Depositary Receipts evidencing
such Depositary Shares, in each case pursuant to the applicable Deposit
Agreement, will represent legal and valid interests in such Preferred
Stock. No holder of such Common Stock, Preferred Stock or Depositary
Receipts evidencing Depository Shares is or will be subject to personal
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liability solely by reason of being such a holder. If the Underlying
Securities related to the Offered Securities include Senior Debt
Securities and/or Subordinated Debt Securities, such Underlying
Securities have been, or as of the date of the applicable Terms
Agreement will have been, duly authorized for issuance by the Company
upon the exercise of the Debt Security Warrants or upon conversion of
the related Preferred Stock or Depositary Shares, as applicable. Such
Underlying Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered in accordance
with the terms of the Debt Security Warrants or the related Preferred
Stock or Depositary Shares, as applicable, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements
that a claim with respect to any Debt Securities payable in a foreign
or composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the making of
payments outside the United States.
(s) Descriptions of the Offered Securities, Underlying
Securities, Indentures, Deposit Agreement and Warrant Agreement. The
Offered Securities and each applicable Indenture, Security Document,
Deposit Agreement and Warrant Agreement, as of each Representation
Date, and any Underlying Securities, when issued and delivered in
accordance with the terms of the related Offered Securities, will
conform in all material respects to the statements relating thereto
contained in the Prospectus and will be in substantially the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(t) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its 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 subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, each Delayed Delivery
Contract, if any, each applicable Indenture, Security Document, Warrant
Agreement and Deposit Agreement, the Offered Securities and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
in the Prospectus and the consummation of the transactions contemplated
herein and therein (including the issuance and sale of the Offered
Securities and the use of the proceeds therefrom as described in the
Prospectus under the caption "Use of Proceeds" and the issuance of any
Underlying Securities) and compliance by the Company with its
obligations hereunder and thereunder have been duly authorized by all
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<PAGE> 14
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any of its subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(u) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Offered Securities under this Agreement and any applicable
Indenture, Security Document, Warrant Agreement or Deposit Agreement,
or the consummation of the transactions contemplated by this Agreement
and any applicable Indenture, Security Document, Warrant Agreement or
Deposit Agreement, except such as have been already obtained or as may
be required under the 1933 Act or the 1933 Act Regulations and foreign
or state securities or blue sky laws.
(v) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any or its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any subsidiary's principal suppliers, manufacturers, customers
or contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(w) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought 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 subsidiary, which is required to be disclosed in the
Registration Statement and the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to affect the
properties or assets thereof in a manner which would result in a
Material Adverse Effect or which might reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated in this Agreement any applicable Indenture, Security
Document, Warrant Agreement or Deposit Agreement or the performance by
the Company of its obligations under this Agreement, any applicable
Indenture, Security Document, Warrant Agreement or Deposit Agreement or
the Offered Securities; the aggregate of all pending legal or
governmental proceedings
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<PAGE> 15
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 and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(x) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(y) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(z) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate 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, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
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 a Material
Adverse Effect.
(aa) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (i) are described in the Prospectus or (ii) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries
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<PAGE> 16
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any subsidiary under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease that
would reasonably be expected to have a Material Adverse Effect.
(bb) Investment Company Act. The Company is not, and upon the
issuance and sale of the Offered Securities as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(cc) Environmental Laws. Except as described in the
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (i)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (ii) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(iii) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (iv) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(dd) Absence of Year 2000 Problem. The Company has reviewed
its operations and that of its subsidiaries and any third parties with
which the Company or any of its subsidiaries has a material
relationship to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries was affected by the Year 2000
Problem. As a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem has or will
have a Material Adverse Effect. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used in
the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or
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<PAGE> 17
electrical systems of any kind will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
Any certificate signed by any director or officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company as to the matters covered
thereby.
SECTION 2. Purchase and Sale.
(a) Initial Securities. The several commitments of the
Underwriters to purchase the Offered Securities pursuant to this
Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to
the terms and conditions herein and therein set forth. Offered
Securities which are subject to Delayed Delivery Contracts are herein
sometimes referred to as "Delayed Delivery Offered Securities" and
Offered Securities which are not subject to Delayed Delivery Contracts
are herein sometimes referred to as "Immediate Delivery Offered
Securities".
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company may grant, if so
provided in the Terms Agreement, an option to the Underwriters named in
the Terms Agreement, severally and not jointly, to purchase up to the
number or principal amount of Option Securities set forth therein at
the same price per security (plus, except as otherwise provided in the
Terms Agreement, interest, if any, accrued and unpaid from the Closing
Time until the applicable Date of Delivery, and less, except as
otherwise provided in the Terms Agreement, an amount equal to any
dividends or distributions declared by the Company and paid or payable
on the initial Offered Securities but not payable on the Option
Securities), as is applicable to the Offered Securities. Such option,
if granted, will expire 30 days after the date of the Terms Agreement,
and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Offered Securities upon
notice by the Representatives to the Company setting forth the number
or principal amount of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date
of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days
and not earlier than two full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter
defined, unless otherwise agreed upon by the Representatives and the
Company. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase the proportion of the total number or principal
amount of Option Securities then being purchased that the number or
principal amount of Immediate Delivery Offered Securities each such
Underwriter has agreed to purchase, as set forth in the Terms
Agreement, bears to the total principal amount of Immediate Delivery
Offered Securities, subject to such adjustments as the Representatives
in their discretion shall make to eliminate any sales or purchases in
less than authorized denominations or of a fractional number of shares,
as the case may be.
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(c) Payment, Denominations and Registration. Payment of the
purchase price for, and delivery of, the Immediate Delivery Offered
Securities to be purchased by the Underwriters shall be made at the
place set forth in the Terms Agreement, or at such other place as shall
be agreed upon by the Representatives and the Company, on the third
business day (unless postponed in accordance with the provisions of
Section 10) following the date of the Terms Agreement or such other
time as shall be agreed upon by the Underwriters and the Company (such
time and date being referred to as the "Closing Time"). Except as
specified in the Terms Agreement, payment shall be made to the Company
by wire transfer in same day funds to the account of the Company
specified in the Terms Agreement against delivery to the Underwriters
for the respective accounts of the Underwriters of the Immediate
Delivery Offered Securities to be purchased by them (unless the Offered
Securities are issuable only in the form of one or more global
securities registered in the name of a depository or a nominee of a
depository, in which event the Underwriters' interest in such global
securities shall be noted in a manner satisfactory to the Underwriters
and their counsel). In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates representing, such
Option Securities shall be made at such place as shall be agreed upon
by the Representatives and the Company, on each Date of Delivery as
agreed by the Representatives and the Company. The Immediate Delivery
Offered Securities shall be in such denominations and registered in
such names as the Underwriters may request in writing at least two
business days prior to the Closing Time or relevant Date of Delivery,
as the case may be. The Immediate Delivery Offered Securities, which if
agreed by the Representatives may be in temporary form, will be made
available for examination and packaging by the Representatives on or
before the first business day prior to the Closing Time or relevant
Date of Delivery, as the case may be.
(d) Delayed Delivery Contracts.
(i) If authorized by the Terms Agreement, the
Underwriters named therein may solicit offers to purchase
Offered Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto, with such
changes therein as the Company may approve. As compensation
for arranging Delayed Delivery Contracts, the Company will pay
to the Representatives at the Closing Time, for the account of
the Underwriters, a fee equal to that percentage of the
aggregate number or principal amount of Delayed Delivery
Offered Securities for which Delayed Delivery Contracts are
made at the Closing Time as is specified in the Terms
Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types set forth in the
Prospectus Supplement. At the Closing Time the Company will
enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Delayed Delivery Offered
Securities per Delayed Delivery Contract specified in the
Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as
provided below, but not for an aggregate number or principal
amount of Offered Securities in excess of that specified in
the Terms Agreement. The Underwriters
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<PAGE> 19
will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
(ii) The Representatives are to submit to the Company, at
least two business days prior to the Closing Time, the names
of any institutional investors with which it is proposed that
the Company will enter into Delayed Delivery Contracts and the
principal amount of Delayed Delivery Offered Securities to be
purchased by each of them, and the names of the institutions
with which the making of Delayed Delivery Contracts is
approved by the Company and the principal amount of Delayed
Delivery Offered Securities to be covered by each such Delayed
Delivery Contract.
(iii) The number or principal amount of Offered Securities
agreed to be purchased by the respective Underwriters pursuant
to this Agreement shall be reduced by the number or principal
amount of Delayed Delivery Offered Securities covered by
Delayed Delivery Contracts, as to each Underwriter as set
forth in a written notice delivered by the Underwriters to the
Company; provided, however, that the total number or principal
amount of Immediate Delivery Offered Securities to be
purchased by all Underwriters shall be the total amount of the
Offered Securities covered by this Agreement, less the total
number or principal amount of Delayed Delivery Offered
Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Preparation of Prospectus Supplement. Immediately
following the execution of the Terms Agreement, the Company will
prepare a Prospectus Supplement in form approved by the Representatives
setting forth the principal amount of Offered Securities and their
terms not otherwise specified in the Indenture, if applicable, the
names of the Underwriters and the number or principal amount of the
Offered Securities which each severally has agreed to purchase, the
names of the Underwriters, the price at which the Offered Securities
are to be purchased by the Underwriters from the Company, the initial
public offering price, the selling concession and reallowance, if any,
any delayed delivery arrangements, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Offered 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 the Prospectus
(including the Prospectus Supplement) as the Representatives shall
reasonably request.
(b) Continued Compliance With Securities Laws. If at any time
when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered Securities any event shall occur
or condition exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or counsel for the Company, to amend or
supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state any material
fact necessary in order to
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make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such
counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly amend the
Registration Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act or the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and the Prospectus comply with such
requirements.
(c) Rule 158. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 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 each twelve month period beginning, in each case,
not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Securities.
(d) Filing of Additional Registration Statements or
Amendments. While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company will give the Representatives notice of its intention to file
any additional registration statement with respect to the registration
of additional Debt Securities, any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment or
supplement to the Prospectus, whether pursuant to the 1934 Act, the
1933 Act or otherwise; will furnish the Underwriters with copies of any
such amendment or supplement or other documents proposed to be filed a
reasonable time in advance of such proposed filing or use, as the case
may be; and will not file any such amendment or supplement or other
documents in a form to which the Representatives or counsel to the
Underwriters reasonably object.
(e) Compliance with Commission Requests and Notification of
Ratings Changes. While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company will notify the Representatives immediately, and promptly
confirm the notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal 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 Registration Statement or the
Prospectus, (iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the Prospectus
Supplement, (iv) 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) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose and (vi) any change in the rating assigned by any nationally
recognized statistical rating organization to any debt securities of
the Company or the public announcement by any nationally recognized
statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of any debt
securities of the Company. The Company will make
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<PAGE> 21
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(f) Delivery of Registration Statements and Prospectuses. The
Company will deliver to each Underwriter one conformed copy of the
Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the
Prospectus) and will also deliver to the Representatives as many
conformed copies of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) as the Representatives may
reasonably request. While the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the
Company will furnish to the Representatives as many copies of the
Prospectus (including the Prospectus Supplement) as the Representatives
reasonably request.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Offered Securities
and any related Underlying Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Underwriters may designate, and will maintain
such qualifications in effect for as long as may be required for the
distribution of the Offered Securities; provided, however, that the
Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in
which the Offered Securities and any related Underlying Securities have
been qualified as above provided. The Company will promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered
Securities and any related Underlying Securities for sale in any such
state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(h) Compliance with 1934 Act. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Offered Securities, will
file all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15(d) of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(i) Restriction on Offers and Sales of Securities. If
specified in the Terms Agreement, between the date of the Terms
Agreement and the completion of the distribution of the Offered
Securities or the Closing Time, whichever is later, or such other time
as is specified in the Terms Agreement, the Company will not, without
the prior written consent of the Representatives, offer or sell, grant
any option for the sale of, or enter into any agreement to sell, any
securities of the Company substantially similar to the Offered
Securities (other than the Offered Securities that are to be sold
pursuant to such agreement or commercial paper in the ordinary course
of business or as otherwise specified in the Terms Agreement).
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(j) Reservation of Securities. If the applicable Terms
Agreement specifies that any related Underlying Securities include
Common Stock, Preferred Stock and/or Depositary Shares, the Company
will reserve and keep available at all times, free of preemptive or
other similar rights, a sufficient number of shares of Common Stock
and/or Preferred Stock, as applicable, for the purpose of enabling the
Company to satisfy any obligations to issue such Underlying Securities
upon exercise of the related Warrants, as applicable, or upon
conversion of the Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities, as applicable.
(k) Listing. The Company will use its best efforts to effect
the listing of the Offered Securities and any related Underlying
Securities, prior to the Closing Time, on any national securities
exchange or quotation system if and as specified in the applicable
Terms Agreement.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Offered Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements which the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of all of its covenants and other obligations
hereunder and under the Terms Agreement, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and, at the Closing Time, no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) 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 reasonable satisfaction of counsel
to the Underwriters.
(b) Opinions of Counsel. At the Closing Time, the Underwriters
shall have received:
(i) Opinion of Counsel for Company. The favorable
opinion, dated as of the Closing Time, of Holland & Knight LLP
("H&K"), counsel to the Company (or another law firm with
respect to a Significant Subsidiary located in the United
States and organized in a jurisdiction in which H&K does not
provide such opinion), in form and substance satisfactory to
counsel for the Underwriters, to the effect as set forth below
and to such further effect as counsel for the Underwriters may
reasonably request:
(1) The Company is a corporation incorporated
and validly existing as a corporation in good standing under
the laws of the State of Delaware.
(2) The Company has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus
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<PAGE> 23
and to enter into and perform its obligations under this
Agreement and the Delayed Delivery Contracts, if any.
(3) 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 or to be in good standing would not result in a
Material Adverse Effect.
(4) If applicable, the authorized, issued and
outstanding capital stock of the Company is as set forth in
the Prospectus under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations,
agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus); the
shares of issued and outstanding capital stock have been duly
authorized and validly issued and are fully paid and
non-assessable; to such counsel's knowledge, none of the
outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(5) This Agreement and the applicable Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(6) If the Offered Securities include Common
Stock, such Offered Securities have been, or as of the date of
the applicable Terms Agreement will have been, duly authorized
by the Company for issuance and sale pursuant to this
Agreement. Such Offered Securities, when issued and delivered
by the Company pursuant to this Agreement against payment of
the consideration therefor specified in this Agreement, will
be validly issued, fully paid and non-assessable and will not
be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of such Offered
Securities is or will be subject to personal liability solely
by reason of being such a holder. The form of certificate used
to evidence the Offered Securities is in due and proper form
and complies with all applicable statutory requirements, with
any applicable requirements of the Company's charter and
by-laws and with the requirements of the New York Stock
Exchange.
(7) If the Offered Securities include Preferred
Stock and/or Depositary Shares, such Offered Securities have
been, or as of the date of the applicable Terms Agreement will
have been, duly authorized by the Company for issuance and
sale pursuant to this Agreement. The applicable Preferred
Stock, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration therefor,
or for the related Depositary Shares, as the case may be,
specified in the applicable Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights of any securityholder of
the Company. In addition, upon deposit by the Company of any
Preferred Stock represented by Depositary Shares with the
applicable
20
<PAGE> 24
Depositary and the execution and delivery by such Depositary
of the Depositary Receipts evidencing such Depositary Shares,
in each case pursuant to the applicable Deposit Agreement,
such Depositary Shares will represent legal and valid
interests in such Preferred Stock. No holder of such Preferred
Stock or Depositary Receipts evidencing Depositary Shares is
or will be subject to personal liability solely by reason of
being such a holder. The applicable Certificate of
Designations, Preferences and Rights will be in full force and
effect prior to the Closing Time. The form of certificate used
to evidence the Preferred Stock is in due and proper form and
complies with all applicable statutory requirements, with any
applicable requirements of the Company's charter and by-laws
and with the requirements of the exchange or system, if any,
on which the Offered Securities are listed or admitted for
trading, as the case may be.
(8) If the Offered Securities include Depositary
Shares or if Debt Securities are convertible into Depositary
Shares representing Preferred Stock, the applicable Deposit
Agreement has been, or prior to the issuance of such
Depositary Stock will have been, duly authorized, executed and
delivered by the Company and, upon such authorization,
execution and delivery, and assuming due authorization,
execution and delivery by the applicable Depositary of the
applicable Deposit Agreement, will constitute a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at
law). Each registered holder of a Depositary Receipt under the
applicable Deposit Agreement will be entitled to the
proportional rights, preferences and limitations of the
Preferred Stock represented by the Depositary Shares evidenced
by such Depositary Receipt and to such other rights as are
granted to such registered holder in such Deposit Agreement.
(9) If the Offered Securities include Senior
Debt Securities and/or Subordinated Debt Securities, or if
Preferred Stock is, or Depositary Shares representing
Preferred Stock are convertible into Debt Securities, each
applicable Indenture has been, or prior to the issuance of the
Debt Securities thereunder will have been, duly authorized,
executed and delivered by the Company and (assuming each
applicable Indenture has been duly authorized, executed and
delivered by the applicable Trustee) constitutes a legal,
valid and binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general
equity principles, and further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any
Offered Securities denominated other than in U.S. dollars (or
a foreign currency or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
21
<PAGE> 25
applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(10) If the Offered Securities include Secured
Senior Debt Securities, or if Preferred Stock is, or
Depositary Shares representing Preferred Stock are,
convertible into Secured Senior Debt Securities, each
applicable Security Document has been, or prior to the
issuance of the Secured Senior Debt Securities thereunder will
have been, duly authorized, executed and delivered by the
Company and (assuming each applicable Security Document has
been duly authorized, executed and delivered by the other
parties thereto) constitutes a legal, valid and binding
agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles;
and in the opinion of such counsel (or other appropriate
counsel if the opinion relates to a jurisdiction as to which
H&K does not provide such opinion) the Pledge Agreement,
together with delivery of the certificates evidencing the
Pledged Shares and stock powers executed by the Company in
blank to the Collateral Agent, will create a perfected
security interest in the Pledged Shares in favor of such
Collateral Agent for the benefit of the holders of the Secured
Senior Debt Securities and the other persons specified in the
Pledge Agreement, free of any adverse claims, subject to such
exceptions and qualifications as are set forth in the opinion
delivered to the holders of obligations secured equally and
ratably with the Secured Senior Debt Securities and reasonably
acceptable to the Company and the Underwriters.
(11) If the Offered Securities include Senior
Debt Securities and/or Subordinated Debt Securities, such
Offered Securities, have been or as at the date of the
applicable Terms Agreement will have been, duly authorized for
issuance, offer and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions
of this Agreement, any Delayed Delivery Contract and the
Indenture against payment of the consideration therefor, will
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting enforcement of creditors' rights generally or by
general equity principles, and except further as enforcement
thereof may be limited by (A) requirements that a claim with
respect to any Offered Securities denominated other than in
U.S. dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the
United States; and each holder of Offered Securities will be
entitled to the benefits of such Indenture.
(12) If the Offered Securities include Warrants,
such Offered Securities have been, or as of the date of the
applicable Terms Agreement will have been,
22
<PAGE> 26
duly authorized by the Company for issuance and sale pursuant
to this Agreement. Such Offered Securities, when issued and
authenticated in the manner provided for the applicable
Warrant Agreement and delivered against payment of the
consideration therefor specified in the applicable Terms
Agreement, will constitute valid and binding obligations of
the Company, entitled to the benefits provided by such Warrant
Agreement and enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(13) If the Offered Securities include Warrants,
each applicable Warrant Agreement has been, or prior to the
issuance of such Offered Securities will have been, duly
authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, and assuming due
authorization, execution and delivery of the applicable
Warrant Agent of the applicable Warrant Agreement, will
constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or
at law).
(14) If the Underlying Securities related to the
Offered Securities include Common Stock, Preferred Stock or
Depositary Shares, such Underlying Securities have been, or as
of the date of the applicable Terms Agreement will have been,
duly authorized and reserved for issuance by the Company upon
exercise of the Common Stock Warrants or Preferred Stock
Warrants, as applicable, or upon conversion of the related
Preferred Stock, Depositary Shares, Senior Debt Securities or
Subordinated Debt Securities, as applicable. If the Underlying
Securities include Common Stock or Preferred Stock, such
Underlying Securities, when issued upon such exercise or
conversion, as applicable, will be validly issued, fully paid
and non-assessable and will not be subject to preemptive or
other similar rights of any securityholder of the Company. If
the Underlying Securities include Depositary Shares, such
Underlying Securities, upon deposit by the Company of the
Preferred Stock represented thereby with the applicable
Depositary and the execution and delivery by such Depositary
of the Depositary Receipts evidencing such Depositary Shares,
in each case pursuant to the applicable Deposit Agreement,
will represent legal and valid interests in such Preferred
Stock. No holder of such Common Stock, Preferred Stock or
Depositary Receipts evidencing Depository Shares is or will be
subject to personal liability solely by reason of being such a
holder. If the Underlying Securities related to the Offered
Securities include Senior Debt Securities and/or Subordinated
Debt Securities, such Underlying Securities have
23
<PAGE> 27
been, or as of the date of the applicable Terms Agreement will
have been, duly authorized for issuance by the Company upon
the exercise of the Debt Security Warrants or upon conversion
of the related Preferred Stock or Depositary Shares, as
applicable. Such Underlying Securities, when issued and
authenticated in the manner provided for in the applicable
Indenture and delivered in accordance with the terms of the
Debt Security Warrants or the related Preferred Stock or
Depositary Shares, as applicable, will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or
at law), and except further as enforcement thereof may be
limited by requirements that a claim with respect to any Debt
Securities payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the
making of payments outside the United States.
(15) The Offered Securities and each applicable
Indenture, Security Document, Deposit Agreement and Warrant
Agreement, as of each Representation Date, and any Underlying
Securities, when issued and delivered in accordance with the
terms of the related Offered Securities, will conform in all
material respects to the statements relating thereto contained
in the Prospectus and will be in substantially the form filed
or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement; and the statements in
the Prospectus under the captions "Description of Notes" and
"Description of Debt Securities", insofar as they purport to
summarize certain provisions of documents specifically
referred to therein, are accurate summaries of such
provisions.
(16) Each Significant Subsidiary(2) located in
the United States is a corporation incorporated and 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 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, except where the failure to so
qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding
capital stock of each Significant Subsidiary located in the
United States has been duly authorized and validly issued, is
fully paid and non-assessable, and to such counsel's
knowledge, is owned by the Company, directly or through
subsidiaries,
-----------------
(2) If the Offered Securities are Secured Senior Debt Securities, the opinions
in this paragraph will cover each Significant Subsidiary and Pledged
Subsidiary located in the United States.
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<PAGE> 28
free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity (except as described in the
Prospectus); to such counsel's knowledge, none of the
outstanding shares of capital stock of any Significant
Subsidiary was issued in violation of the preemptive or
similar rights of any security holder of such Significant
Subsidiary.
(17) The Registration Statement, including any
Rule 462(b) Registration Statement, has been declared
effective under the 1933 Act; any required filing of the
Prospectuses pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b);
and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(18) The Registration Statement, including any
Rule 462(b) Registration Statement, or any information deemed
to be part of the Registration Statement pursuant to Rule
430A(b) or Rule 434 of the 1933 Act Regulations, as
applicable, the Prospectuses, excluding the documents
incorporated by reference therein, and each amendment or
supplement to the Registration Statement and the Prospectuses,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates (other than the
financial statements and supporting schedules included therein
or omitted therefrom and other than those parts of the
Registration Statement that constitute the Form T-1, as to
which such counsel need express no opinion) complied as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
(19) The documents incorporated by reference in
the Prospectuses (other than the financial statements and
supporting schedules included therein or omitted therefrom,
as to which such counsel need express no opinion), when they
were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
(20) To such counsel's knowledge and except as
described in the Prospectus, there is not pending or
threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any subsidiary is a
party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this
Agreement, the Delayed Delivery Contracts, if applicable, or
any applicable Indenture, Warrant Agreement or Deposit
Agreement, or the performance by the Company of its
obligations hereunder or thereunder.
(21) The information in, or incorporated by
reference into, the Prospectus under the captions entitled
"Facilities", "Legal Proceedings", "Certain
25
<PAGE> 29
Federal Income Tax Considerations" or any similar caption or
captions, if applicable, and in the Registration Statement
under Item 15, to the extent that it constitutes matters of
law, summaries of legal matters, the Company's charter and
bylaws or legal proceedings, or legal conclusions, has been
reviewed by such counsel and is correct in all material
respects; and, if applicable, the opinion of the firm set
forth under "Certain Federal Income Tax Considerations" or any
similar caption, if applicable, is confirmed.
(22) All descriptions in the Prospectus of
contracts and other documents to which the Company or its
subsidiaries are a party are accurate in all material
respects; to the best of such counsel's knowledge, there are
no franchises, 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, and the descriptions thereof or references
thereto are correct in all material respects.
(23) To such counsel's knowledge, no filing
with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other
than under the 1933 Act and the 1933 Act Regulations, which
have been obtained, or as may be required under the securities
or blue sky laws of the various states, as to which such
counsel need express no opinion) is necessary or required in
connection with the due authorization, execution and delivery
of this Agreement, the Delayed Delivery Contracts, if
applicable, or any applicable Indenture, Security Document,
Warrant Agreement or Deposit Agreement or for the offering,
issuance, sale or delivery of the Offered Securities.
(24) The execution, delivery and performance of
this Agreement, any Delayed Delivery Contracts and each
applicable Indenture, Security Document, Warrant Agreement and
Deposit Agreement, and the consummation of the transactions
contemplated herein and therein and in the Registration
Statement (including the issuance and sale of the Offered
Securities, and the use of the proceeds from the sale of the
Offered Securities as described in the Prospectus under the
caption "Use Of Proceeds" and the issuance of any Underlying
Securities) and compliance by the Company with its obligations
hereunder and under any Delayed Delivery Contracts, the
Indenture and the Security Documents do not and will not,
whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default
or Repayment Event under or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant
to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or
instrument, known to such counsel, to which the Company or any
subsidiary 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 subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect),
nor will such
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<PAGE> 30
action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary, or any
applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of
their respective properties, assets or operations.
(25) The Company is not, and upon the issuance
and sale of the Offered Securities as contemplated in this
Agreement and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company,"
as such terms are defined in the 1940 Act.
(26) If the Offered Securities include Debt
Securities, the applicable Indenture has been duly qualified
under the 1939 Act.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion
shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including,
without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
(ii) Opinion of Local Counsel for Company's Non-U.S.
Subsidiaries. The favorable opinion, dated as of Closing Time,
of each local counsel for the Company's non-U.S. Significant
Subsidiaries, in form and substance satisfactory to counsel
for the Underwriters as to each such subsidiary, to the effect
as set forth below and to such further effect as counsel for
the Underwriters may reasonably request:
(1) The subsidiary has been 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 so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(2) Except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding
capital stock of the subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to such
counsel's knowledge, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
27
<PAGE> 31
(3) None of the outstanding shares of capital
stock of the subsidiary was issued in violation of the
preemptive or similar rights of any of its securityholders.
(4) To such counsel's knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the subsidiary is a party, or to which
the property of the subsidiary is subject, before or brought
by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated
in this Agreement.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion
shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including,
without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
(iii) Opinion of Patent Counsel for the Company. The
favorable opinion, dated as of Closing Time, of Holland &
Knight LLP, patent counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the
effect as set forth below and to such further effect as
counsel for the Underwriters may reasonably request:
(1) Such counsel has read the information under
the caption "Business-Proprietary Rights" or any similar
caption included or incorporated by reference in the
Prospectus and has no reason to believe that the
aforementioned section of such Prospectus is inaccurate with
respect to the description set forth therein of any legal
matters, documents or proceedings or the patents, licenses,
trade secrets, trademarks, service marks and other proprietary
information and materials (collectively, "Intellectual
Property") owned or used by the Company.
(2) Except as set forth in the aforementioned
section of the Prospectus, to such counsel's knowledge, there
are no legal or governmental proceedings pending relating to
the Intellectual Property owned or used by the Company other
than the review of the pending patent application.
(3) Except as set forth in the aforementioned
section of the Prospectus, the Company (A) is not infringing
or otherwise violating any rights to Intellectual Property
owned by others and (B) is not subject to any current claim or
notice of infringement or other violation of any Intellectual
Property owned by others.
(4) Such counsel is familiar with the pending
patent applications filed by the Company (the "Applications")
and the Letters Patent issued to the Company (the "Patents")
and (A) to such counsel's knowledge, the Company is
28
<PAGE> 32
the assignee of record of the Applications and the Patents and
(B) the Applications have been filed on behalf of the Company
with the U.S. Patent and Trademark Office (the "PTO") in
accordance with the rules and regulations of the PTO and the
Applications have been awarded a filing date by the PTO.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion
shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including,
without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
(iv) Opinion of Counsel for Underwriters. The favorable
opinion, dated as of the Closing Time, of Brown & Wood LLP,
counsel for the Underwriters, with respect to the matters set
forth in clauses (1), (5) through (9), (11) through (15),
(17), (18) and (26) (in each case, as applicable), of
subsection (b)(i) of this Section.
(v) In giving their opinions required by subsection
(b)(i) and (b)(iv), respectively, of this Section 4, Holland &
Knight LLP and Brown & Wood LLP shall each additionally state
that in the course of the preparation of the Registration
Statement and the Prospectus such counsel has considered the
information set forth therein in light of the matters required
to be set forth therein, and has participated in conferences
with officers and representatives of the Company, including
its independent public accountants, during the course of which
the contents of the Registration Statement and the Prospectus
and related matters were discussed. Such counsel need not
independently check the accuracy or completeness of, or
otherwise verify, and accordingly need not pass upon, and
accordingly need not assume responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as set forth
in items (15), (21), (22) and (26) of the opinion set forth in
subsection (b)(i)). Such counsel shall additionally state
that, however, as a result of such consideration and
participation, nothing has come to such counsel's attention
which causes such counsel to believe that the Registration
Statement, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement,
then at the time such amendment became effective or at the
time of the most recent such filing, as the case may be),
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading or that the Prospectus or any amendment or
supplement thereto, at the time the Prospectus was issued at
the time any such amendment or supplement was issued, or at
the Closing Time, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
29
<PAGE> 33
misleading (it being understood that such counsel need express
no belief with respect to the financial statements and other
financial data contained in the Registration Statement
(including the Prospectus) or those parts of the Registration
Statement which constitute the Form T-1).
(c) Officer's Certificate. At the Closing Time, there shall
not have been, since the date of the Terms 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 results of operations,
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 the Closing Time, to the effect that (i) there has
been no such material adverse change with respect to the Company and
its subsidiaries, (ii) the representations and warranties of the
Company contained in Section 1 are true and correct as of the Closing
Time, (iii) the Company has performed or complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate and (iv) no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued and no proceedings for
that purpose have been initiated or threatened by the Commission. As
used in this Section 4(c), the term "Prospectus" means the Prospectus
in the form first provided to the applicable Underwriter or
Underwriters for use in confirming sales of the Offered Securities.
(d) Accountants' Comfort Letters.
(i) On the date of the Terms Agreement, the
Representatives shall have received a letter from KPMG LLP
(and each other independent accountants with respect to
financial statements included in the Registration Statement
and the Prospectus), dated as of the date thereof and in form
and substance satisfactory to the Representatives, together
with signed or reproduced copies of such letter for each of
the other Underwriters, containing statements and information
of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(ii) At the Closing Time, the Underwriters shall have
received from KPMG LLP (and each other applicable independent
accountants), a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d)(i) of this Section,
except that the specified date referred to shall be a date not
more than three business days prior to the Closing Time.
(e) Approval of Listing. At Closing Time, the Offered
Securities shall have been approved for listing, subject only to
official notice of issuance, on the securities exchanges, if any,
specified in the applicable Terms Agreement.
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<PAGE> 34
(f) No Objection. If the Registration Statement or an offering
of Offered Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(g) Lock-up Agreements. On the date of the applicable Terms
Agreement, the Representatives shall have received, in form and
substance satisfactory to them, each lock-up agreement, if any,
specified in such Terms Agreement as being required to be delivered by
the persons listed therein.
(h) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions
as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Offered Securities as herein
contemplated and related proceedings or in order to evidence the
accuracy and completeness of any of the representations and 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 Offered Securities as herein and in the Terms Agreement
contemplated shall be satisfactory in form and substance to the
Representatives.
(i) Conditions to Purchase of Option Securities. In the event
that the Terms Agreement provides for Option Securities and the
Underwriters exercise their option pursuant to Section 2(b) hereof to
purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall
be true and correct as of each Date of Delivery, and the Underwriters
shall have received:
(i) Unless the Date of Delivery is the Closing Time, a
certificate, dated such Date of Delivery, of the Chief
Executive Officer, President or a Vice President and the
Treasurer, the Assistant Treasurer, the principal financial
officer or principal accounting officer of the Company, in
their capacities as such, confirming that the certificate
delivered at the Closing Time pursuant to Section 4(c) hereof
remains true and correct as of such Date of Delivery.
(ii) The favorable opinion of Holland & Knight LLP,
counsel for the Company, each local counsel for the Company's
non-U.S. Significant Subsidiaries and Holland & Knight LLP,
patent counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities and otherwise
substantially to the same effect as the opinions required by
subsections (i), (ii) and (iii) of Section 4(b) hereof.
(iii) The favorable opinion of Brown & Wood LLP, counsel
for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the
opinion required by subsection (iv) to Section 4(b) hereof.
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<PAGE> 35
(iv) Unless the Date of Delivery is the Closing Time, a letter from
KPMG LLP (and each other applicable independent accountants), in form
and substance satisfactory to the Underwriters and dated such Date of
Delivery, substantially the same in scope and substance as the letter
furnished to the Underwriters at the Closing Time pursuant to Section
4(d) hereof, except that the "specified date" in the letter shall be a
date not more than three days prior to such Date of Delivery.
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
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement,
including any Rule 462(b) Registration Statement, and all amendments
thereto and the Prospectus and any amendments or supplements thereto;
(b) the preparation, filing and reproduction of this Agreement
and the Delayed Delivery Contract(s), if applicable;
(c) the preparation, printing, issuance and delivery of the
Offered Securities and any related Underlying Securities, including any
fees and expenses relating to the eligibility and issuance of Offered
Securities and any related Underlying Securities in book-entry form;
(d) the fees and disbursements of the Company's accountants
and counsel, of each Trustee, any Warrant Agent and any Depositary and
their respective counsel, and of any calculation agent or exchange rate
agent;
(e) except as otherwise provided in the Terms Agreement, the
reasonable fees and disbursements of counsel to the Underwriters;
(f) the qualification of the Offered Securities and any
related Underlying Securities under state securities laws in accordance
with the provisions of Section 3(k) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of any
Blue Sky or Legal Investment Survey;
(g) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, and the delivery by the Underwriters
of the Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Offered
Securities;
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<PAGE> 36
(h) the preparation, reproducing and delivery to the
Underwriters of copies of the applicable Indenture, any Warrant
Agreement or Deposit Agreement, as applicable, and all amendments,
supplements and modifications thereto;
(i) any fees charged by nationally recognized statistical
rating organizations for the rating of the Offered Securities and any
related Underlying Securities;
(j) the fees and expenses incurred in connection with any
listing of Offered Securities and any related Underlying Securities on
a securities exchange;
(k) the fees and expenses incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) any out-of-pocket expenses of the Underwriters incurred
with the approval of the Company; and
(m) the cost of providing any CUSIP or other identification
numbers for the Offered Securities and any related Underlying
Securities.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 9, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) 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:
(i) 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 any Rule 462(b)
Registration Statement, including information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) or Rule 434 of the 1933
Act Regulations, 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;
(ii) 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 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) such settlement is effected with the
33
<PAGE> 37
written consent of the Company, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and expenses of counsel chosen by such
Underwriter), 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 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 expressly for use in the Registration Statement (or any amendment
thereto), any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); [and provided further that the Company will not be liable
to any Underwriter with respect to any preliminary prospectus to the extent that
the Company shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that such Underwriter, in
contravention of a requirement of applicable law, sold Offered Securities to a
person to whom such Underwriter failed to send or give, at or prior to the
Closing Time, a copy of the Prospectus (or the Prospectus as amended or
supplemented) if (i) the Company has previously furnished copies thereof
(sufficiently in advance of the Closing Time and in sufficient quantity to allow
for distribution by the Closing Time) to the Underwriters and the loss,
liability, claim, damage or expense of such Underwriter resulted from an untrue
statement or omission of a material fact contained in or omitted from the
preliminary prospectus which was corrected in the Prospectus (or the Prospectus
as amended or supplemented) prior to the Closing Time and such Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person and (ii) such failure to give or send such Prospectus by the
Closing Time to the party or parties asserting such loss, liability, claim,
damage or expense would have constituted the sole defense to the claim asserted
by such person.]
(b) Each Underwriter agrees, severally and not jointly, 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, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) 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
34
<PAGE> 38
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 the
Representatives, 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 (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for the fees
and expenses of counsel which the indemnifying party is required to pay
pursuant to Section 6(a)(iii) and Section 6(b) hereof, such
indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party as required hereunder in accordance with such request
prior to the date of such settlement.
(e) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectus,
or any amendment or supplement to any of the foregoing, shall be deemed
to include, without limitation, any electronically transmitted copies
thereof, including, without limitation, any copies filed with the
Commission pursuant to EDGAR.
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
35
<PAGE> 39
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities
pursuant to this 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 Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total commission or underwriting discount
received by each Underwriter, in each case as set forth on the cover of the
Prospectus Supplement, bear to the aggregate initial public offering price of
the Offered Securities sold to or through such Underwriter 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 the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company 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 any 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 Offered Securities sold to or through such Underwriter were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 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
36
<PAGE> 40
rights to contribution as such Underwriter, and each director 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 principal
amount of Offered Securities sold to or through each Underwriter and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person of an Underwriter, or by or on behalf of the Company, and
shall survive each delivery of and payment for any Offered Securities.
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement
immediately upon notice to the Company, at any time at or prior
to the Closing Time if (i) there has been, since the date of the
Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in
the results of operations, 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) there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or
escalation of hostilities or other national or international
calamity or crisis the effect of which is such as to make it, in
the judgment of the Representatives, impracticable to market the
Offered Securities or enforce contracts for the sale of the
Offered Securities, or (iii) trading in any securities of the
Company has been suspended by the Commission or a national
securities exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange shall have
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 shall have been declared by either Federal or New York
authorities or if a banking moratorium shall have been declared
by the relevant authorities in the country or countries of origin
of any foreign currency or currencies in which the Offered
Securities are denominated or payable, or (iv) the rating
assigned by any nationally recognized statistical rating
organization to any debt securities of the Company as of the date
of the Terms Agreement shall have been lowered since that date or
if any such rating organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company,
or (v) there shall have come to the attention of the
Representatives any facts that would cause them to reasonably
believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Offered Securities, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the
37
<PAGE> 41
statements therein, in light of the circumstances existing at the
time of such delivery, not misleading. As used in this Section 9,
the term "Prospectus" means the Prospectus in the form first
provided to the applicable Underwriter or Underwriters for use in
confirming sales of the related Offered Securities.
(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 5.
Notwithstanding any such termination, (i) the covenants set forth
in Section 3(b), (d), and (e) with respect to any offering of
Offered Securities shall remain in effect so long as any
Underwriter owns any such Offered Securities purchased from the
Company pursuant to this Agreement and during the period when the
Prospectus is required to be delivered in connection with sales
of the Offered Securities and (ii) the covenants set forth in
Section 3(c), (g), (h) and, if applicable, (i), the provisions of
Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7 and the provisions
of Sections 8, 11, 12 and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail at
the Closing Time or a Date of Delivery to purchase the Immediate Delivery
Offered Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), then 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, during such 24 hours the
Representatives shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, then:
(a) if the amount of Defaulted Securities does not exceed
10% of the amount of Immediate Delivery Offered Securities to be
purchased on such date, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of the
number of Immediate Delivery Offered Securities to be purchased
on such date, this Agreement or, with respect to any Date of
Delivery which occurs after the Closing Time, the obligation of
the Underwriters to purchase and of the Company to sell the
Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 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 or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall
38
<PAGE> 42
have the right to postpone the Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus 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, either delivered by hand, by mail or by telex, telecopier
or telegram, and any such notice shall be effective when received at the address
specified in this Section 11. Notices to the Underwriters shall be directed as
provided in the Terms Agreement. Notices to the Company shall be directed to it
at 10560 Ninth Street North, St. Petersburg, Florida 33716, attention of General
Counsel. Any party to this Agreement may from time to time designate another
address to receive notice pursuant to this Agreement by notice duly given in
accordance with the terms of this Section 11.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters 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
parties hereto 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 parties hereto and their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement and all the rights and
obligations of the parties hereto 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 such State.
SECTION 14. Counterparts. Any Terms Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts thereof shall constitute a single instrument.
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<PAGE> 43
EXHIBIT A
TERMS AGREEMENT
___________ __, 20__
Jabil Circuit, Inc.
10560 Ninth Street North
St. Petersburg, Florida 33716
Attention:
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that Jabil
Circuit, Inc. (the "Company") proposes to issue and sell [____ shares of its
Common Stock, par value $0.001 per share (the "Common Stock")] [ shares of its
Preferred Stock, par value $0.001 per share (the "Preferred Stock")] [in the
form of depositary shares (the "Depositary Shares") each representing of
a share of Preferred Stock] [$ aggregate principal amount of its [senior]
[subordinated] debt securities (the "Debt Securities")] [ warrants (the
"Common Stock Warrants") to purchase Common Stock] [ warrants (the
"Preferred Stock Warrants") to purchase Preferred Stock] [ warrants (the
"Debt Security Warrants") to purchase $ aggregate principal amount of
[senior] [subordinated] debt securities] (the "Offered Securities"). Subject to
the terms and conditions set forth herein or incorporated by reference herein,
the Underwriters offer to purchase, severally and not jointly, the [number]
[principal amount] of Offered Securities set forth below opposite their
respective names at the purchase price set forth below [, and a proportionate
share of Option Securities set forth below, to the extent any are purchased].
<TABLE>
<CAPTION>
[Number]
[Principal Amount]
Underwriter of Offered Securities
-----------------------------------------------------------------
<S> <C>
----------------
Total [$]
</TABLE>
The Offered Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Securities:
Initial public offering price per share: $
Purchase price per share: $
A-1
<PAGE> 44
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion or exchange provisions:
Security provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of shares of Preferred Stock represented by each
Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
A-2
<PAGE> 45
Sinking fund requirements:
Conversion or exchange provisions:
Security provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from ___
Purchase price per share: $____ plus accumulated dividends, if any, from ___
Other terms and conditions:
Closing date and location:
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion or exchange provisions:
Security provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: %
of the principal amount, plus accrued interest [amortized original
issue discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued
interest [amortized original issue discount], if any, from
_________________.
Form:
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Debt Security] Warrants
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<PAGE> 46
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Debt Securities]: [Yes]
[No]
Number of [Common Stock] [Preferred Stock] [Debt Security] Warrants
issued with each [share of Common Stock] [share of Preferred Stock]
[$__________ principal amount of Debt Securities]:
Date(s) from which or period(s) during which [Common Stock] [Preferred Stock]
[Debt Security] Warrants are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Debt Security] Warrants
expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one [share of
Common Stock] [share of Preferred Stock] [Debt Security] Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Other terms, if any:
All the provisions contained in "Jabil Circuit--Underwriting Agreement
Basic Terms" (the "Basic Terms"), filed as an exhibit to the Registration
Statement relating to the Offered Securities and attached hereto as Annex A, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Any notice by the Company to the Underwriters pursuant to this Terms
Agreement shall be sufficient if given in accordance with Section 11 of the
Basic Terms addressed to: [insert
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<PAGE> 47
name and address of the lead manager or managers or, if only one underwriter is
a party hereto, of such firm] which shall, for all purposes of this Agreement,
be the "Representatives".
Very truly yours,
REPRESENTATIVE[S]
By:
--------------------------------------------
[Acting for themselves and as
Representative[s] of the Underwriters]
Accepted:
JABIL CIRCUIT, INC.
By:
---------------------------
Title:
A-5
<PAGE> 48
ANNEX A
[Jabil Circuit, Inc.--Underwriting Agreement Basic Terms]
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<PAGE> 49
EXHIBIT B
JABIL CIRCUIT, INC.
[Title of Offered Securities]
DELAYED DELIVERY CONTRACT
Jabil Circuit, Inc.
10560 Ninth Street North
St. Petersburg, Florida 33716
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Jabil Circuit, Inc. (the
"Company"), and the Company agrees to sell to the undersigned on ____________,
20__ (the "Delivery Date"), $_____________ principal amount of the Company's __%
___________ due ___________ __, 20__ (the "Offered Securities"), offered by the
Company's Prospectus dated _________ __, 20__, as supplemented by its Prospectus
Supplement dated __________ __, 20__, receipt of which is hereby acknowledged,
at a purchase price of _____% of the principal amount thereof, plus accrued
interest from __________, ______, to the Delivery Date, and on the further terms
and conditions set forth in this contract.
Payment for the securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by wire transfer
in immediately available funds on the Delivery Date, upon delivery to the
undersigned of the Offered Securities to be purchased by the undersigned in
definitive or global form and in such denominations and registered in such names
as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than three full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Offered Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before ___________, ____, shall have sold to the Underwriters of the Offered
Securities (the "Underwriters") such principal amount of the Offered Securities
as is to be sold to them pursuant to the Terms Agreement dated ____________,
____ between the Company and the Underwriters. The obligation of the undersigned
to take delivery of and make payment for Offered Securities shall not be
affected by the failure of any purchaser to take delivery of and make payment
for Offered Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to the Underwriters that its investment in
the Offered
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<PAGE> 50
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Offered Securities has
been taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Offered Securities in excess of
$__________ and that the acceptance of any Delayed Delivery Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first come first-served basis. If this contract is acceptable to the Company, it
is requested that the Company sign the form of acceptance on a copy hereof and
mail or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
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<PAGE> 51
This Agreement shall be governed by the laws of the State New York
applicable to agreements made and performed in said State.
Yours very truly,
------------------------------
(Name of Purchaser)
By
-----------------------------
(Title)
------------------------------
------------------------------
(Address)
Accepted as of the date
first above written.
Jabil Circuit, Inc.
By:
---------------------------
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date shall be discussed is as
follows: (Please print.)
<TABLE>
<S> <C>
Telephone No.
Name (Including Area Code)
</TABLE>
B-3
