Exhibit 1
MOTOROLA, INC.
(a Delaware corporation)
Debt Securities
Debt Warrants
Common Stock
Common Stock Warrants
Units
UNDERWRITING AGREEMENT
October 7, 1997
To the Representatives of the
several Underwriters named in
the respective Terms Agreements
hereinafter described
Dear Sirs:
Motorola, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell, at up to an aggregate initial public offering price of
$1,000,000,000, or the equivalent thereof in one or more foreign currencies
or composite securities, including European Currency Units, in one or more
series, its (i) unsecured debt securities (the "Debt Securities") which may
be senior (the "Senior Securities") or subordinated (the "Subordinated
Securities"), (ii) warrants to purchase the Debt Securities (the "Debt
Warrants"), (iii) shares of its common stock, $3 par value per share (the
"Common Stock"), and (iv) warrants to purchase Common Stock (the "Common
Stock Warrants") in one or more offerings on terms determined at the time
of sale. The Debt Securities, Debt Warrants, Common Stock and Common Stock
Warrants may be offered separately or as a part of units consisting of one
or more such securities (the "Units"; and together with the Debt
Securities, Debt Warrants, Common Stock and Common Stock Warrants, the
"Offered Securities"). The Debt Securities and the Units containing the
Debt Securities (collectively, the "Offered Debt Securities") will be
issued under one of several indentures depending upon the particular
issuance. The Senior Securities will be issued under an indenture dated as
of May 1, 1995 between the Company and Harris Trust and Savings Bank, as
Trustee (the "Senior Indenture"). The Subordinated Securities will be
issued under an indenture between the Company and a trustee to be named in
the Terms Agreement (as defined below) relating to any Subordinated
Securities (the "Subordinated Indenture"). The Liquid Yield Option(TM)
Notes (the "LYONs"(TM)) will be issued under an indenture between the
Company and The First National Bank of Chicago, as Trustee (the "LYONs
Indenture"). The Senior Indenture, Subordinated Indenture and LYONs
Indenture are each sometimes referred to as the "Indentures." The Debt
Warrants, Common Stock Warrants and Units containing either of the
foregoing (collectively, the "Warrants") will be issued under one or more
warrant agreements (the "Warrant Agreements") between the Company and the
Warrant Agent identified in such Warrant Agreement. Each issue of the
Offered Debt Securities and Warrants may vary, as applicable, as to the
aggregate principal amount, maturity date or dates, interest rate or rates
and timing of payments thereof, redemption provisions, conversion
provisions, exercise provisions and sinking fund requirements, if any, and
any other variable terms which the applicable Indenture or Warrant
Agreement, as the case may be, contemplates may be set forth in the Offered
Debt Securities and Warrants as issued from time to time.
Whenever the Company determines to make an offering of Offered
Securities, it will enter into an agreement substantially in the form of
Exhibit A hereto (the "Terms Agreement") providing for the sale of such
Offered Securities to, and the purchase and offering thereof by, the
underwriter or underwriters named therein (the "Underwriters" or "you",
which terms shall include the underwriter or underwriters named therein
whether acting alone in the sale of the Offered Securities or as members of
an underwriting syndicate). The Terms Agreement relating to each offering
of the Offered Securities shall specify, where applicable, the principal
amount of the Offered Securities to be issued, the name or names of the
Underwriters participating in such offering (subject to substitution as
provided in Section 9 hereof) and the principal amount of the Offered
Securities which each severally agrees to purchase, the name or names of
the Underwriters acting as manager or co-managers in connection with such
offerings, if any (the "Representatives", which term shall include each
Underwriter in the event that there shall be no manager or co-managers),
the price at which the Offered Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the date,
time and place of delivery and payment, the number of shares to be issued
in the case of the issuance of the Common Stock, and, to the extent not
otherwise specified in the applicable Indenture or Warrant Agreement in the
case of the issuance of the Offered Debt Securities or Warrants, their
terms. Each offering of the Offered Securities will be governed by this
Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be
binding upon each Underwriter participating in the offering of such Offered
Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-62911) relating
to (i) the Offered Securities and (ii) the Common Stock issuable upon
conversion or exercise of the Offered Securities in the case of the
issuance of Offered Securities convertible into or exercisable for Common
Stock, and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "1933 Act"), and has
filed such amendments thereto as may have been required to the date hereof.
Such registration statement, as amended, has been declared effective by the
Commission, and the Indentures have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement, as amended, and the prospectus relating to the sale of the
Offered Securities by the Company constituting a part thereof, including
all documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act or otherwise, are referred to herein
as the "Registration Statement" and the "Prospectus", respectively;
provided, however, that a supplement of the Prospectus contemplated by
Section 3(a)(ix) hereof (a "Prospectus Supplement") shall be deemed to have
supplemented the Prospectus only with respect to the offering of Offered
Securities to which such Prospectus Supplement relates. If the Company
elects to rely on Rule 434 under the rules and regulations of the 1933 Act
(the "1933 Act Regulations"), all references to the Prospectus shall be
deemed to include, without limitation, the form of prospectus and the
abbreviated term sheet, taken together, provided to the Underwriters by the
Company in reliance on Rule 434 of the 1933 Act Regulations (the "Rule 434
Prospectus"). If the Company files a registration statement to register a
portion of the Offered Securities and relies on Rule 462(b) of the 1933 Act
Regulations for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement"), then any
reference to "Registration Statement" herein shall be deemed to be to both
the registration statement referred to above (No. 33-62911) and the Rule
462 Registration Statement, as each such registration statement may be
amended pursuant to the 1933 Act.
SECTION 1.
(a) Representations and Warranties. The Company represents and
warrants to each Underwriter as of the date hereof and as of the date of
the applicable Terms Agreement (such latter date being hereinafter referred
to as the "Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the 1933 Act
and the 1933 Act Regulations. The Registration Statement, at the time the
Registration Statement 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 of the most recent such filing)
did not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, did not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter, or on behalf of any Underwriter by the Representatives,
expressly for use in the Registration Statement or Prospectus.
(ii) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together and with the other information in
the Prospectus, at the time the Registration Statement and any amendments
thereof became or become effective under the 1933 Act 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, in light of the
circumstances under which they are made, not misleading.
(iii) The Company and its subsidiaries considered as a whole have not
sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth,
incorporated by reference or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated or incorporated
therein, there has not been any change in the capital stock (other than
upon exercise of outstanding stock options or upon conversion of
convertible securities outstanding on the date of the most recent balance
sheet included in the Prospectus or pursuant to the Company's employee
stock ownership plan or pursuant to the Company's employee stock purchase
plans or the Company's employee savings and profit sharing plan), any
significant increase in the long-term debt of the Company and its
subsidiaries taken as a whole, or any material adverse change, or any
development which the Company has reasonable cause to believe will involve
a prospective material adverse change, in or affecting the general affairs,
management, consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
whole, or, other than the Company's regular quarterly dividend, any
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(iv) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to conduct its business as described in
the Prospectus with only such exceptions as are not material to the
business of the Company and its subsidiaries considered as a whole.
(v) The authorized capitalization is as set forth or incorporated by
reference in the Prospectus and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable.
(vi) The execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the applicable Indenture in the case of the
issuance of the Offered Debt Securities, and the applicable Warrant
Agreement in the case of the issuance of the Warrants, and the consummation
of the transactions contemplated herein and therein have been duly
authorized by all necessary corporate action and will not conflict with or
constitute a breach of, or a default under, any material contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company is a party or by which the Company is
bound; nor will such action result in a violation of the provisions of the
Company's Restated Certificate of Incorporation or bylaws of the Company,
as amended, or any applicable law, rule, regulation, judgment, order or
administrative or court decree.
(vii) Other than (a) as set forth, incorporated by reference, or
contemplated in the Prospectus and (b) litigation incident to the kind of
business conducted by the Company and its subsidiaries, which in the case
of those items in (b) individually and in the aggregate is not material to
the Company and its subsidiaries considered as a whole, there are no legal
or governmental proceedings pending to which the Company and its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or its subsidiaries, the Company has reasonable cause to believe
would individually or in the aggregate have a material adverse effect on
the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole; and,
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(viii) No consent, approval or authorization of any court or
governmental authority or agency is necessary in connection with the sale
of the Offered Securities or the consummation of the other transactions
contemplated by this Agreement, the applicable Terms Agreement, the
applicable Warrant Agreement in the case of the issuance of the Warrants,
or the applicable Indenture in the case of the issuance of the Offered Debt
Securities, except as may be required under the 1933 Act or 1933 Act
Regulations, the 1934 Act or 1934 Act Regulations, the 1939 Act or state
securities laws.
(ix) The Company has complied and will comply with the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to
issuers doing business in Cuba.
(b) In the event the Offered Securities are Offered Debt Securities,
the Company additionally represents and warrants to each Underwriter as of
the Representation Date that the Offered Debt Securities to be issued and
sold pursuant to this Agreement have been duly authorized, and when issued,
authenticated and delivered pursuant to this Agreement, against payment of
the consideration set forth in the Terms Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture under which they are to be issued, which will be
substantially in the form included as an exhibit to the Registration
Statement; the applicable Indenture has been duly authorized, and when duly
executed and delivered by the Company and the applicable Trustee, will
constitute a valid and legally binding instrument enforceable against the
Company in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles, and except as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Offered Debt Securities
denominated other than in U.S. dollars (or a foreign currency or currency
unit 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; and the Offered Debt Securities and the
applicable Indenture conform in all material respects to the descriptions
thereof in, or incorporated by reference into, the Prospectus and the
applicable Prospectus Supplement.
(c) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company makes the following additional
representations and warranties to each Underwriter as of the Representation
Date:
(i) The shares of Common Stock initially issuable upon conversion or
exercise, as the case may be, have been duly authorized and reserved for
issuance, and when issued and delivered, pursuant to the terms of the
Indenture or Warrant Agreement, as the case may be, will be validly issued,
fully paid and non-assessable.
(ii) Holders of Offered Securities receiving shares of Common Stock
issued upon the conversion or exercise of such Offered Securities, as the
case may be, or upon the purchase of Offered Securities by the Company at
the option of holders of such Offered Securities in the case of the
issuance of LYONs with such a purchase feature as Offered Securities, will
also be entitled, to the same extent as will all shares of Common Stock
issuable at such time otherwise than upon the conversion or exercise of
such Offered Securities or upon purchase of Offered Securities by the
Company at the option of the holders in the case of the issuance of LYONs
with such a purchase feature as Offered Securities, to one-quarter
preferred share purchase right (a "Right") in respect of each share of
Common Stock so received; each such one-quarter Right has been duly
authorized, and when issued and delivered in accordance with the terms of
the Rights Agreement, dated as of November 9, 1988, between the Company and
Harris Trust and Savings Bank, as amended, (the "Rights Agreement"), will
have been duly executed, issued and delivered; the Rights Agreement has
been duly authorized, executed and delivered by the Company and Harris
Trust and Savings Bank and is enforceable against the Company in accordance
with its terms, subject, as to enforcement, to general equity principles;
and the Rights and the Rights Agreement conform in all material respects to
the descriptions thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement.
(iii) The Common Stock conforms in all material respects to the
description thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement and is not subject to
preemptive or other similar rights.
(d) In the event the Offered Securities are Warrants, the Company
additionally represents and warrants to each Underwriter as of the
Representation Date that the Warrants to be issued and sold pursuant to
this Agreement have been duly authorized, and when issued, authenticated
and delivered pursuant to this Agreement, against payment of the
consideration set forth in the Terms Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Warrant Agreement under which they are to be issued, which
will be substantially in the form included as an exhibit to the
Registration Statement; the applicable Warrant Agreement has been duly
authorized, and when duly executed and delivered by the Company and the
applicable Warrant Agent, will constitute a valid and legally binding
instrument enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Warrants and the applicable Warrant
Agreement conform in all material respects to the descriptions thereof in,
or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement.
(e) In the event the Offered Securities are shares of Common Stock or
Units containing shares of Common Stock, the Company makes the following
additional representations and warranties to each Underwriter as of the
Representation Date:
(i) The Common Stock to be issued and sold pursuant to this Agreement
has been duly authorized, and when issued and delivered pursuant to this
Agreement, against payment of the consideration set forth in the applicable
Terms Agreement, will be validly issued and fully paid and non-assessable.
(ii) The Offered Securities will be entitled, to the same extent as
all other shares of Common Stock issued or to be issued by the Company, to
one-quarter Right in respect of each share of Common Stock so received;
each such one-quarter Right has been duly authorized, and when issued and
delivered in accordance with the terms of the Rights Agreement will have
been duly executed, issued and delivered; the Rights Agreement has been
duly authorized, executed and delivered by the Company and Harris Trust and
Savings Bank and is enforceable against the Company in accordance with its
terms, subject, as to enforcement, to general equity principles; and the
Rights and the Rights Agreement conform to the descriptions thereof
included in or incorporated by reference into the Prospectus and the
applicable Prospectus Supplement.
(iii) The Common Stock conforms in all material respects to the
description thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement and is not subject to
preemptive or other similar rights.
(f) In the event the Offered Securities are Debt Warrants or Units
containing Debt Warrants, the Company makes the following additional
representations and warranties to each Underwriter as of the Representation
Date:
(i) The debt securities initially issuable upon the exercise of such
Offered Securities, have been duly authorized, and, when issued, will be
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the indenture under which they will be issued.
(ii) The debt securities issuable upon exercise of the Debt Warrants
conform in all material respects to the description thereof included in or
incorporated by reference into the Prospectus and the applicable Prospectus
Supplement.
(g) In the event the Offered Securities are Warrants or Offered Debt
Securities convertible into Common Stock, the Company additionally
represents and warrants to each Underwriter as of the Representation Date
that upon issuance and delivery of such Warrants or Debt Securities in
accordance with (i) this Agreement and the applicable Terms Agreement, and
(ii) the applicable Warrant Agreement or Indenture, as the case may be, the
Warrants shall be exercisable at the option of the holder thereof for
shares of Common Stock or debt securities, as the case may be, in
accordance with the terms of the Warrants and the applicable Warrant
Agreement, and such Debt Securities shall be convertible at the option of
the holder thereof for shares of Common Stock in accordance with the terms
of such Debt Securities and the applicable Indenture.
(h) Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with
an offering of Offered Securities shall be deemed a representation and
warranty by the Company as to the matters covered thereby, to each
Underwriter.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase the Offered
Securities pursuant to any Terms 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 set forth.
(b) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters shall be made at the place
set forth in the applicable 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
9) following the date of the applicable Terms Agreement, unless the Offered
Securities are priced after 4:30 p.m. New York time in which case such
payment and delivery will be made on the fourth business day following the
date of the applicable Terms Agreement (unless postponed in accordance with
the provisions of Section 9), or such other time not later than ten
business days after such date as shall be agreed upon by the
Representatives and the Company (each such time and date being referred to
as a "Closing Time"). Payment shall be made to the Company by certified or
official bank check or checks drawn in New York Clearing House funds or
similar next day funds payable to the order of the Company, against
delivery to the Representatives for the respective accounts of the
Underwriters of the Offered Securities to be purchased by them.
(c) Certificates for the Offered Securities shall be in such
denominations and registered in such names as the Representatives may
request in writing at least one business day before the applicable Closing
Time. The certificates for the Offered Securities, which may be in
temporary form, will be made available for examination and packaging by the
Representatives in New York City not later than 3:00 p.m. on the last
business day prior to the applicable Closing Time.
SECTION 3. (a) Covenants. The Company covenants with each Underwriter as
follows:
(i) From the date of the applicable Terms Agreement, and for so long
as a Prospectus is required to be delivered in connection with the sale of
the Offered Securities covered by such Terms Agreement, the Company will
notify the Representatives immediately, and confirm the notice in writing,
(A) of the effectiveness of any amendment to the Registration Statement,
(B) of the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference into the Registration
Statement or Prospectus, (C) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any Prospectus Supplement, or the documents incorporated therein, (D) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, or the
documents incorporated therein, or for additional information, (E) of the
suspension of the qualification of (i) the Offered Securities, or (ii) the
shares of Common Stock (including the Rights associated therewith) issuable
upon conversion or exercise of the Offered Securities in the case of the
issuance of Offered Securities convertible into or exercisable for Common
Stock, or the shares of Common Stock issuable upon the purchase of Offered
Securities by the Company at the option of holders of Offered Securities in
the case of the issuance of LYONs with such a purchase feature as Offered
Securities, for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for any such purpose, and (F) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any order preventing or suspending the use
of the Prospectus or any preliminary prospectus supplement, or the
initiation of any proceedings for any such purpose. The Company will use
every reasonable effort to prevent the issuance of any stop order or any
order preventing or suspending the use of the Prospectus or any preliminary
prospectus supplement or suspending such qualification, and, in the event
of the issuance of a stop order or any order preventing or suspending the
use of the Prospectus or any preliminary prospectus supplement or
suspending such qualification, to obtain the lifting thereof at the
earliest possible moment.
(ii) From the date of the applicable Terms Agreement, and for so long
as a Prospectus is required to be delivered in connection with the sale of
the Offered Securities covered by such Terms Agreement, the Company will
give the Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus (including any
revised prospectus which the Company proposes for use by you in connection
with the offering of the Offered Securities which differs from the
prospectus on file with the Commission at the time the Registration
Statement became effective, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations,
or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933
Act Regulations) and will furnish them with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which
you or your counsel shall reasonably object.
(iii) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act.
(iv) The Company will deliver to each of the Representatives two
copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and, if applicable, documents incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act) and
will also deliver to the Representatives, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, as many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) as the
Representatives may reasonably request.
(v) Prior to 1:00 p.m., New York City time, on the business day next
succeeding the date of the applicable Terms Agreement and from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, the Company will furnish to the Representatives
in New York City such number of copies of the Prospectus (as amended or
supplemented) as the Representatives may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(vi) 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 as a result of which it is necessary to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the Prospectus
(in form and substance satisfactory to your counsel) so that, as so amended
or supplemented, the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, and the Company will
furnish to the Representatives a reasonable number of copies of such
amendment or supplement.
(vii) The Company will endeavor, in cooperation with you, to qualify
the Offered Securities and, in the case of the issuance of Offered
Securities convertible into or exercisable for Common Stock, the shares of
Common Stock (including the Rights associated therewith) issuable upon
conversion or exercise, as the case may be, or upon the purchase of the
Offered Securities by the Company at the option of holders of such Offered
Securities in the case of the issuance of LYONs with such a purchase
feature as Offered Securities, for offering and sale under the applicable
securities laws of such states and other jurisdictions as the
Representatives may designate; provided, however, that the Company shall
not be obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service of
process in any jurisdiction. In each jurisdiction in which the Offered
Securities, or in the case of the issuance of Offered Securities
convertible into or exercisable for Common Stock, such shares of Common
Stock (including the Rights associated therewith), have been so qualified,
the Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for so
long as may be required to complete such distribution of such Offered
Securities.
(viii) With respect to each sale of Offered Securities, the Company
agrees that it 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, earnings statements (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a 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 said Rule
158) of the Registration Statement relating to such Offered Securities.
(ix) If the Company elects not to rely on Rule 434 under the 1933 Act
Regulations, immediately following the execution of each Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth, where
applicable, the principal amount or number of shares, as the case may be,
of the Offered Securities covered thereby, the name or names of the
Underwriters (subject to substitution as provided in Section 9 hereof) and
the principal amount or number of shares, as the case may be, of the
Offered Securities which each severally has agreed to purchase, the name or
names of the Representatives, 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, the other
terms of the Offered Securities to the extent not otherwise specified in
the applicable Indenture or Warrant Agreement, as the case may be, in the
event the Offered Securities are Offered Debt Securities or Warrants, 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 and such Prospectus Supplement as the Representatives shall
reasonably request. If the Company elects to rely on Rule 434 of the 1933
Act Regulations, immediately following the execution of each Terms
Agreement, the Company will (i) prepare an abbreviated term sheet that
complies with the requirements of Rule 434 of the 1933 Act Regulations,
(ii) provide the Underwriters with copies of the form of the Rule 434
Prospectus in such number as the Underwriters may reasonably request and
(iii) file or transmit for filing with the Commission the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of
business in New York on the business day immediately succeeding the date of
the Terms Agreement.
(b) In the event the Offered Securities are Offered Debt Securities,
Debt Warrants or Units containing Debt Warrants, the Company additionally
covenants with each Underwriter that the Company will not contract to sell
or announce or make any offering, sale or other disposition of any debt
securities of the Company having a maturity greater than one year during
the period beginning from the date of any Terms Agreement and continuing
through the later of the termination of trading restrictions with respect
to the Offered Securities, as notified to the Company by the
Representatives, or the applicable Closing Time except for (i) proposed
issues of debt securities with respect to which the Company shall have
advised the Representatives in writing prior to the execution hereof and
(ii) except for such other debt securities with respect to which the
Representatives have given their prior written consent.
(c) In the event the Offered Securities are shares of Common Stock,
Units containing shares of Common Stock or are convertible into or
exercisable for Common Stock, the Company additionally covenants with each
Underwriter as follows:
(i) The Company will not contract to sell or announce or make any
offering, sale or other disposition of any shares of Common Stock or any
securities convertible into or exchangeable for shares of Common Stock
(collectively, "Common Equity Securities"), nor will the Company sell or
grant options, rights or warrants with respect to any Common Equity
Securities (except under the Company's stock option and other employee
incentive and benefit plans existing on the date of the applicable Terms
Agreement, except for sales of Common Equity Securities under currently
effective secondary shelf registration statements, [except for no more than
2,700,000 shares of Common Stock issued as consideration for acquisitions]
and except for Common Stock issued upon conversion of outstanding
convertible securities) in each case during a period of 90 days after the
commencement of the public offering of the Offered Securities referenced in
Section 3(c) hereof, except for (a) proposed issues of Common Equity
Securities with respect to which the Company shall have advised the
Representatives in writing prior to the execution hereof and (b) except for
such other Common Equity Securities with respect to which the
Representatives have given their prior written consent.
(ii) The Company will use its best efforts to effect the listing of
(A) Offered Securities that are shares of the Common Stock and (B) shares
of the Common Stock issuable upon the conversion or exercise of the Offered
Securities, as the case may be, or in the case of the issuance of LYONs
with such a purchase feature as Offered Securities, upon purchase of such
Offered Securities at option of the holders of such Offered Securities, on
the New York Stock Exchange (and/or such other exchanges or trading markets
on which the Common Stock is then listed or admitted for trading), and to
cause such Offered Securities to be registered under the 1934 Act.
(iii) In the case of the issuance of Offered Securities convertible
into or exercisable for Common Stock, the Company agrees to reserve and
keep available at all times, free of preemptive rights, shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations to
issue shares of Common Stock upon conversion or exercise of the Offered
Securities, as the case may be.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and
each Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto,
(ii) the copying of this Agreement, each Terms Agreement, the Indentures,
in the case of the issuance of the Offered Debt Securities, and the Warrant
Agreements, in the case of the issuance of the Warrants, (iii) the
preparation, issuance and delivery to the Underwriters of the certificates
for the Offered Securities, (iv) the fees and disbursements of the
Company's counsel and accountants, (v) the qualification of the Offered
Securities and, in the case of the issuance of Offered Securities
convertible into or exercisable for Common Stock, the shares of Common
Stock (including the Rights associated therewith) issuable upon the
conversion or exercise of the Offered Securities, as the case may be, or
upon the purchase of the Offered Securities by the Company at the option of
the holders of such Offered Securities in the case of the issuance of LYONs
with such a purchase feature as Offered Securities, under securities laws
in accordance with the provisions of Section 3(a)(vii), including filing
fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
survey, (vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto,
of any preliminary prospectuses and of the Prospectus and any amendments or
supplements (including any preliminary prospectus supplements) thereto,
including, if applicable, the abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vii) the copying
and delivery to the Underwriters of copies of the Blue Sky survey, (viii)
in the case of the issuance of Offered Debt Securities, the fees and
expenses of the Trustee, including the fees and disbursements of counsel
for the Trustee in connection with the Indentures, (ix) in the case of the
issuance of Warrants, the fees and expenses of the Warrant Agent, including
the fees and disbursements of counsel for the Warrant Agent in connection
with the Warrant Agreements, (x) where applicable, any fees payable in
connection with the rating of the Offered Securities, (xi) where
applicable, the filing fee payable to the National Association of
Securities Dealers, Inc. incident to any required review of the terms of
the sale of the Offered Securities, (xii) where applicable, the fees and
expenses incurred in connection with the listing of the Offered Securities,
and in the case of the issuance of Offered Securities convertible into or
exercisable for Common Stock, the shares of Common Stock issuable upon the
conversion or exercise of the Offered Securities, as the case may be, or in
the case of the issuance of LYONs with such a purchase feature as Offered
Securities, the shares of Common Stock issuable upon purchase of such
Offered Securities at the option of holders of such Offered Securities on
the New York Stock Exchange (and/or such other exchanges or trading markets
on which the Common Stock is then listed or admitted for trading), and
(xiii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this Section. Except as provided in this Section and in Sections 6 and 7,
the Underwriters will pay all of their own costs and expenses, including
fees and disbursements of their counsel, stock transfer taxes on resale of
any of the Offered Securities by them, and any advertising expenses which
they may incur.
If a Terms Agreement is terminated by the Representatives in
accordance with the provisions of Section 5, other than solely as the
result of a material adverse change in the financial markets in the United
States as provided for in Section 5(f)(iii), the Company shall reimburse
you for all out-of-pocket expenses, including the reasonable fees and
disbursements of your counsel, reasonably incurred by you in making
preparations for the purchase, sale and delivery of the Offered Securities.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
the Underwriters to purchase the Offered Securities pursuant to any Terms
Agreement are subject, in the discretion of the Representatives, to the
accuracy of the representations and warranties of the Company herein
contained, to the performance by the Company of its obligations hereunder,
and to the following further conditions:
(a) At the applicable Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission; all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
and the Prospectus as amended or supplemented in relation to the applicable
Offered Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for filing
pursuant to the 1933 Act and the 1933 Act Regulations.
(b) At the applicable Closing Time, you shall have received the
favorable opinion, dated as of the applicable Closing Time, of Carol H.
Forsyte, Senior Counsel, of the Law Department of the Company, or another
attorney employed by the Company who is acceptable to the Representatives
(the "Company Attorney's Opinion") (except in the case of item (1)(vii),
where applicable, insofar as it relates to "Certain Tax Aspects", which
opinion shall be delivered by a special outside tax counsel to the
Company), in form and substance satisfactory to your counsel.
(1) The Company Attorney's Opinion shall be to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to conduct its business as
described in the Prospectus.
(ii) The authorized capitalization of the Company is as set
forth or incorporated by reference in the Prospectus and all of the issued
and outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable.
(iii) This Agreement and the applicable Terms Agreement have
each been duly authorized, executed and delivered by the Company.
(iv) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the Commission.
(v) At the time the Registration Statement became effective and
at each Representation Date, the Registration Statement and the Prospectus
(other than the financial statements and other financial data and
supporting schedules included therein and in the documents incorporated by
reference into the Prospectus, as to which no opinion need be rendered)
complied as to form in all material respects with the applicable
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations thereunder and, where applicable, the Rule
434 Prospectus conforms to the requirements of Rule 434 of the 1933 Act
Regulations in all material respects; the documents incorporated by
reference into the Prospectus (other than the financial statements and
other financial data and supporting schedules included therein, as to which
no opinion need be rendered), when they were filed with the Commission,
complied as to form in all material respects with the applicable
requirements of the 1934 Act and the 1934 Act Regulations; and to the best
of such counsel's knowledge and information, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Prospectus or to be filed as
exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference thereto and the
descriptions thereof or references thereto are correct.
(vi) To the best of such counsel's knowledge, other than as set
forth, incorporated by reference or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, other than litigation incident
to the kind of business conducted by the Company and its subsidiaries,
which litigation incident to the Company's business individually and in the
aggregate is not material to the Company and its subsidiaries considered as
a whole; and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(vii) Where applicable, the information in the Prospectus or
the applicable Prospectus Supplement under "Certain Tax Aspects" (or a
similar heading or headings), to the extent that it constitutes matters of
law or legal conclusions, has been reviewed by such counsel and is correct
in all material respects.
(viii) No consent, approval, authorization, order, registration
or qualification of any court or governmental authority or agency is
required in connection with the issuance and sale of the Offered Securities
or the consummation of the other transactions contemplated by this
Agreement, the applicable Terms Agreement, the applicable Warrant Agreement
in the case of the issuance of the Warrants, or the applicable Indenture in
the case of the issuance of the Offered Debt Securities, except such as
have been obtained or rendered, as the case may be, or such consents,
approvals, authorizations, registrations or qualifications as may be
required under the securities or Blue Sky laws of any jurisdiction in
connection with the purchase and distribution of the Offered Securities by
you, the issuance of shares of Common Stock (including the Rights
associated therewith), upon conversion or exercise of the Offered
Securities, in the case of the issuance of Offered Securities convertible
into or exercisable for Common Stock and the issuance of shares of Common
Stock (including the Rights associated therewith) upon the purchase of the
Offered Securities by the Company at the option of holders of the Offered
Securities, in the case of the issuance of LYONs with such a purchase
feature as Offered Securities.
(ix) The execution and delivery of this Agreement, the
applicable Terms Agreement, the applicable Indenture in the case of the
issuance of the Offered Debt Securities, and the applicable Warrant
Agreement in the case of the issuance of the Warrants, the issuance of the
Offered Securities and the shares of Common Stock (including the Rights
associated therewith) issuable (a) upon conversion or exercise of the
Offered Securities in the case of the issuance of Offered Securities
convertible into or exercisable for Common Stock, and (b) upon the purchase
of the Offered Securities by the Company at the option of holders of the
Offered Securities in the case of the issuance of LYONs with such a
purchase feature as Offered Securities, the compliance by the Company with
all of the provisions of the Offered Securities and the applicable
Indenture and Warrant Agreement in the case of the issuance of Offered Debt
Securities or Warrants, this Agreement and the applicable Terms Agreement
and the consummation of the transactions herein or therein contemplated do
not and will not conflict with or constitute a breach of, or a default
under, (a) the Company's Restated Certificate of Incorporation or bylaws of
the Company, as amended, (b) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is bound,
or (c) any applicable law, rule, regulation, judgment, order or
administrative or court decree known to such counsel.
(2) In the event the Offered Securities are Offered Debt
Securities, the Company Attorney's Opinion shall additionally be to the
effect that:
(i) The Offered Debt Securities to be issued and sold by the
Company pursuant to this Agreement and the applicable Terms Agreement have
been duly authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the applicable Indenture; the Offered Debt
Securities and the applicable Indenture conform to the descriptions thereof
in, or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement; and the information in the Prospectus and the
applicable Prospectus Supplement under "Description of Debt Securities,"
and, in the case of the issuance of LYONs as Offered Securities,
"Description of Liquid Yield Option Notes" (or, in each case, a similar
heading or headings), to the extent that it constitutes matters of law or
legal conclusions, has been reviewed by such counsel and is correct in all
material respects.
(ii) The applicable Indenture has been duly authorized,
executed and delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles, and except as enforcement thereof
may be limited by (A) requirements that a claim with respect to any Offered
Debt Securities denominated other than in U.S. dollars (or a foreign
currency or currency unit 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 the
applicable Indenture has been duly qualified under the 1939 Act.
(3) In the event the Offered Securities are convertible into or
exercisable for Common Stock, the Company Attorney's Opinion shall
additionally be to the effect that:
(i) Holders of Offered Securities convertible into or
exercisable for Common Stock receiving shares of Common Stock issued upon
the conversion or exercise of such Offered Securities, as the case may be,
or, in the case of the issuance of LYONs with such a purchase feature as
Offered Securities, upon the purchase of such Offered Securities by the
Company at the option of holders of such Offered Securities, will also be
entitled, to the same extent as will all shares of Common Stock issuable at
such time otherwise than upon the conversion or exercise of such Offered
Securities or upon purchase of such Offered Securities by the Company in
the case of the issuance of LYONs with such a purchase feature as Offered
Securities, to one-quarter Right in respect of each share of Common Stock
so received; each such one-quarter Right has been duly authorized, and when
issued and delivered in accordance with the terms of the Rights Agreement,
will have been duly executed, issued and delivered; the Rights Agreement,
as amended, has been duly authorized, executed and delivered by the Company
and Harris Trust and Savings Bank and is enforceable against the Company in
accordance with its terms, subject, as to enforcement, to general equity
principles; and the Rights and the Rights Agreement conform to the
descriptions thereof included in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement.
(ii) Upon issuance and delivery of Offered Securities
convertible into or exercisable for Common Stock in accordance with this
Agreement and the applicable Terms Agreement, and the applicable Indenture
or Warrant Agreement, as the case may be, such Offered Securities shall be
convertible or exercisable at the option of the holder thereof for shares
of Common Stock in accordance with the terms of such Offered Securities and
the applicable Indenture or Warrant Agreement, as the case may be; and the
shares of Common Stock initially issuable upon conversion or exercise of
such Offered Securities have been duly authorized and reserved for issuance
and, when issued and delivered pursuant to the terms of the applicable
Indenture or Warrant Agreement, as the case may be, will be validly issued,
fully paid and non-assessable.
(iii) The Common Stock conforms to the description thereof in,
or incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other similar
rights; and the information in the Prospectus and the applicable Prospectus
Supplement under "Description of Capital Stock" (or a similar heading or
headings) to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(iv) The shares of Common Stock issuable upon the conversion or
exercise of such Offered Securities, as the case may be, or in the case of
the issuance of LYONs with such a purchase feature as Offered Securities,
upon the purchase of such Offered Securities at the option of holders of
such Offered Securities, have been approved for listing upon notice of
issuance on the New York Stock Exchange (and/or such other exchanges or
trading markets on which the Common Stock is then listed or admitted for
trading).
(4) In the event the Offered Securities are Warrants, the Company
Attorney's Opinion shall additionally be to the effect that:
(i) The Warrants to be issued and sold by the Company pursuant
to this Agreement and the applicable Terms Agreement have been duly
authorized, executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the applicable Warrant Agreement; the Warrants and the
applicable Warrant Agreement conform to the descriptions thereof in, or
incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement; and the information in the Prospectus and the
applicable Prospectus Supplement under "Description of Securities Warrants"
(or a similar heading or headings) to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel and
is correct in all material respects.
(ii) The applicable Warrant Agreement has been duly authorized,
executed and delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(5) In the event the Offered Securities are shares of Common Stock
or Units containing shares of Common Stock, the Company Attorney's Opinion
shall additionally be to the effect that:
(i) The Common Stock conforms to the description thereof in, or
incorporated by reference into, the Prospectus and the applicable
Prospectus Supplement and is not subject to preemptive or other similar
rights; and the information in the Prospectus and the applicable Prospectus
Supplement under "Description of Capital Stock" (or a similar heading or
headings) to the extent that it constitutes matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(ii) The Common Stock will be entitled, to the same extent as
any other shares of Common Stock issued or to be issued by the Company, to
one-quarter Right in respect of each share of Common Stock so received;
each such one-quarter Right has been duly authorized, and when issued and
delivered in accordance with the terms of the Rights Agreement will have
been duly executed, issued and delivered; the Rights Agreement has been
duly authorized, executed and delivered by the Company and Harris Trust and
Savings Bank and is enforceable against the Company in accordance with its
terms, subject, as to enforcement, to general equity principles; and the
Rights and the Rights Agreement conform to the descriptions thereof
included in or incorporated by reference into the Prospectus.
(iii) The Common Stock to be issued and sold pursuant to this
Agreement and the applicable Terms Agreement has been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth in the Terms Agreement, will be
validly issued and fully paid and non-assessable.
(iv) The shares of Common Stock to be issued and sold pursuant
to this Agreement and the applicable Terms Agreement have been approved for
listing upon notice of issuance on the New York Stock Exchange (and/or such
other exchanges or trading markets on which the Common Stock is then listed
or admitted for trading).
(6) In the event the Offered Securities are Debt Warrants or Units
containing Debt Warrants, the Company Attorney's Opinion shall additionally
be to the effect that:
(i) Upon issuance and delivery of Offered Securities
exercisable into debt securities, such Offered Securities shall be
exercisable at the option of the holder thereof for debt securities in
accordance with the terms of such Offered Securities and the applicable
Warrant Agreement; and the debt securities initially issuable upon the
exercise of such Offered Securities, have been duly authorized, and, when
issued, will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the indenture under which they
will be issued.
(ii) The information in the applicable Prospectus Supplement
describing the debt securities issuable upon exercise of the Debt Warrants
has been reviewed by such counsel and is correct in all material respects.
The Company Attorney's Opinion shall additionally state that
nothing has come to his attention that has caused him to believe that the
Registration Statement (other than the financial statements, financial data
and schedules included therein, as to which such counsel need express no
belief), at the time it became effective or at the Representation Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (other than the
financial statements, financial data and schedules included therein, as to
which such counsel need express no belief), at the Representation Date
(unless the term "Prospectus" refers to a prospectus which has been
provided to you by the Company for use in connection with the offering of
the Offered Securities which differs from the Prospectus on file at the
Commission at the Representation Date, in which case at the time it is
provided to you for such use) or at Closing Time, included an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) At the applicable Closing Time, you shall have received the
favorable opinion, dated as of the applicable Closing Time, of your
counsel, with respect to the matters set forth in (b)(1)(i) (insofar as it
relates to the existence and good standing of the Company), (b)(1)(iii) -
(v), inclusive (in the case of (v), insofar as it relates to the compliance
of the Registration Statement and Prospectus as to form), (b)(2)(i),
(b)(2)(ii), (b)(3)(ii), (b)(3)(iii) (insofar as it relates to the
description of the Common Stock), (b)(4)(i), (b)(4)(ii), (b)(5)(i),
(b)(5)(iii), (b)(6)(i) and (b)(6)(ii) as well as the last paragraph of
subsection (b) of this Section.
(d) (i) The Company and its subsidiaries considered as a whole shall
have not sustained since the date of the latest financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth,
incorporated by reference or contemplated in the Prospectus, and (ii) since
the respective dates as of which information is given in the Registration
Statement and the Prospectus there shall not have been any change in the
capital stock (other than upon exercise of outstanding stock options or
upon conversion of convertible securities outstanding at the date of the
most recent balance sheet included in the Prospectus or pursuant to the
Company's employee stock ownership plan or pursuant to the Company's
employee stock purchase plans or the Company's employee savings and profit
sharing plan) or any significant increase in long-term debt of the Company
and its subsidiaries considered as a whole or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, consolidated financial position, stockholders' equity
or results of operations of the Company and its subsidiaries considered as
a whole, otherwise than as set forth or incorporated by reference or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Offered Securities on the terms and
in the manner contemplated in the Prospectus.
(e) On or after the date of the applicable Terms Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2)
under the 1933 Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(f) On or after the date of the applicable Terms Agreement there shall
not have occurred any of the following: (i) a suspension or material
limitation in trading in the Common Stock or securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York or Illinois declared by either Federal or state
authorities; or (iii) any material adverse change in the financial markets
in the United States or the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Offered Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented.
(g) You shall have received a certificate of the Vice Chairman and
Chief Executive Officer, the President or another senior officer acceptable
to you of the Company and of the Chief Financial Officer, Controller,
Treasurer or Assistant Treasurer of the Company, dated as of the applicable
Closing Time, to the effect that (i) the Company and its subsidiaries shall
not have sustained any loss or interference with its business of the type
specified in Section 5(d)(i) and there shall not have occurred any change
of the type specified in Section 5(d)(ii), (ii) there shall not have
occurred any downgrading of the type specified in Section 5(e), (iii) the
applicable representations and warranties in Section 1 are true and correct
with the same force and effect as though expressly made at and as of such
Closing Time, (iv) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to such Closing Time, and (v) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(h) At the time of the execution of each Terms Agreement, you shall
have received from KPMG Peat Marwick a letter dated such date, in form and
substance satisfactory to you, to the effect that (i) they are independent
public accountants with respect to the Company and its subsidiaries within
the meaning of the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the financial statements and supporting schedules included in
or incorporated by reference into the Registration Statement or the
Prospectus and covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited financial statements and supporting
schedules of the Company and its subsidiaries included in or incorporated
by reference into the Registration Statement or the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and the 1934 Act Regulations, as the case may be, or are not presented in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in or incorporated by reference into the Registration Statement or
the Prospectus or (B) at a specified date not more than three days prior to
the date of the applicable Terms Agreement, there has been any change in
the capital stock of the Company (other than upon exercise of outstanding
stock options or upon conversion of convertible securities outstanding on
the date of the most recent balance sheet included in or incorporated by
reference into the Prospectus or pursuant to the Company's employee stock
ownership plan or pursuant to the Company's stock purchase plans or the
Company's employee savings and profit sharing plan) or any increase in the
consolidated long term debt of the Company and its subsidiaries or any
decrease in consolidated net current assets or net assets as compared with
the amounts shown in the most recent balance sheet included in or
incorporated by reference into the Prospectus or, during the period from
the date of the most recent financial statements included in or
incorporated by reference into the Prospectus to a specified date not more
than three days prior to the date of such Terms Agreement, there were any
decreases, as compared with the corresponding period in the preceding year,
in consolidated net sales, net earnings or net earnings per share of the
Company and its subsidiaries, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the
examination referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are included in or incorporated
by reference into the Registration Statement and Prospectus and which are
specified by you, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified in such
letter.
(i) At each Closing Time, your counsel shall have been furnished with
such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Offered Securities, as
contemplated herein, and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Offered Securities
and with respect to the shares of Common Stock (including the Rights
associated therewith) issuable upon the purchase of the Offered Securities
by the Company at the option of holders of the Offered Securities, in the
case of the issuance of LYONs with such a purchase feature as Offered
Securities, and debt securities or shares of Common Stock (including the
Rights associated therewith) issuable upon conversion or exercise of the
Offered Securities, in the case of the issuance of Offered Securities
convertible into Common Stock or exercisable for Common Stock or debt
securities, as the case may be, as herein contemplated, shall be
satisfactory in form and substance to you and your counsel.
(j) In the case of the issuance of shares of Common Stock, Units
containing shares of Common Stock or Offered Securities convertible into or
exercisable for Common Stock, at each Closing Time, you shall have received
the written agreement of each of the persons specified in the applicable
Terms Agreement, if any, to the effect that each such person will not
contract to sell or announce or make any offering, sale or other
disposition of any shares of Common Stock, nor sell or grant any options,
rights or warrants with respect to any shares of Common Stock, in each case
during a period of 90 days after the commencement of the public offering of
the Offered Securities, without your prior written consent.
(k) The Company shall have complied with the provisions of Section
3(a)(v) hereof.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement and the
applicable Terms Agreement may be terminated by the Representatives by
notice to the Company at any time at or prior to the applicable Closing
Time, and such termination shall be without liability of any party to any
other party except as provided in Section 4.
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 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), 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 contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement, including any
preliminary prospectus 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 any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by you), 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 does 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 through the Representatives expressly for
use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement,
including any preliminary prospectus supplement, thereto); and further
provided that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense arising out of any untrue statement or
omission or alleged untrue statement or omission made in a preliminary
prospectus or preliminary prospectus supplement, as the case may be, but
eliminated or remedied in the Prospectus if a copy of the Prospectus
(excluding documents incorporated therein by reference) was not delivered
by you to the person asserting the claim arising from such untrue statement
or omission or such alleged untrue statement or omission, at or prior to
the time required by the 1933 Act.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of the Company's 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 against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement,
including any preliminary prospectus supplement, thereto) in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement, including any
preliminary prospectus 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 indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. 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.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in Section 6 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and
you shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and you, as incurred, in such proportions that you
are responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus bears
to the initial public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that 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,
each person, if any, who controls you within the meaning of Section 15 of
the 1933 Act shall have the same right to contribution as you, 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 shall have the same rights
to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
and the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company,
and shall survive delivery of the Offered Securities to the Underwriters.
SECTION 9. Default. If one or more of the Underwriters shall fail at the
applicable Closing Time to purchase the Offered Securities which it or they
are obligated to purchase under the applicable Terms 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 aggregate initial public offering price of the Defaulted
Securities does not exceed 10% of the aggregate initial public offering
price of the Offered Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations under the applicable Terms Agreement (including
this Agreement as incorporated by reference therein) bear to the
underwriting obligations of all such non-defaulting Underwriters; or
(b) if the aggregate initial public offering price of the Defaulted
Securities exceeds 10% of the aggregate initial public offering price of
the Offered Securities to be purchased pursuant to such Terms Agreement,
such Terms Agreement (including this Agreement as incorporated by reference
therein) shall terminate, without any liability on the part of any
non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter
under the applicable Terms Agreement or this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Representatives or the Company shall have the
right to postpone the applicable Closing Time for a period not exceeding
seven days in order that any required changes in the Registration
Statement, Prospectus or applicable Prospectus Supplement, or in any other
documents or arrangements, may be effected.
SECTION 10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you as provided in the applicable Terms
Agreement; notices to the Company shall be directed to it at 1303 East
Algonquin Road, Schaumburg, Illinois 60196; Attention: Treasurer.
SECTION 11. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon you, the Company and
your and the Company's respective successors. Nothing expressed or
mentioned in this Agreement or the applicable Terms Agreement is intended
or shall be construed to give any person, firm or corporation, other than
you, the Company and your and the Company's respective successors and the
controlling persons and officers and directors referred to in Sections 6, 7
and 8 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or the
applicable Terms Agreement or any provision herein or therein contained.
This Agreement and the applicable Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of you, the Company and your and the Company's 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 the Offered Securities from
you shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
MOTOROLA, INC.
By: /s/ Garth L. Milne .
Title: Senior Vice President & Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
By: Merrill Lynch, Pierce, Fenner
& Smith Incorporated
By: /s/ Robert Schmiedeler .
Title: Vice President .