EXHIBIT 1-1
ARVIN INDUSTRIES, INC.
(an Indiana corporation)
UNDERWRITING AGREEMENT
[Date]
[Name and address of Underwriters
or Representatives]
Dear Sirs:
Arvin Industries, Inc., an Indiana corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), (1) the principal amount of its senior debt
securities, if any, identified in Schedule I hereto (the "Senior
Securities"), to be issued under an Indenture dated as of July 3,
1990, and supplemented March 31, 1994, between the Company and Harris
Trust and Savings Bank, as trustee (the "Senior Trustee"), as amended
(said Indenture, the "Senior Indenture"); (2) the principal amount of
its subordinated debt securities, if any, identified in Schedule I
hereto (the "Subordinated Securities" and together with the Senior
Securities being collectively referred to herein as the "Debt
Securities") to be issued under an Indenture dated as of ___________
between the Company and ________________, as trustee (the
"Subordinated Trustee", and together with the Senior Trustee, the
"Trustees") (said Indenture, the "Subordinated Indenture") (the Senior
Indenture and the Subordinated Indenture being collectively referred
to herein as the "Indentures"); (3) warrants, if any (the "Debt
Warrants"), to purchase an aggregate principal amount of Debt
Securities, which warrants are to be issued pursuant to a Debt Warrant
Agreement (the "Debt Warrant Agreement") between the Company and a
warrant agent (the "Debt Warrant Agent"), all as specified in Schedule
I hereto; (4) the preferred shares of the Company, if any, identified
in Schedule I hereto (the "Preferred Shares"); (5) depositary
receipts, if any, evidencing an interest in depositary shares (the
"Depositary Shares") representing an interest in Preferred Shares of
the Company to be issued under a Deposit Agreement (the "Deposit
Agreement") among the Company, a U.S. bank or trust company as
depositary (the "Depositary"), and the holders from time to time of
such depositary receipts all as indicated in Schedule I hereto; (6)
the common shares, par value $2.50 per share, of the Company (the
"Common Shares"), including, if then in existence, the related
preferred share purchase rights (the "Rights") provided for in the
Rights Agreement dated as of May 29, 1986, as amended, between the
Company and Harris Trust and Savings Bank, as rights agent thereunder
(the "Rights Agreement") (all references herein to the Common Shares
shall include the Rights unless the context indicates otherwise), if
any, as indicated in Schedule I hereto, (7) the share purchase
contracts, if any, to purchase Common Shares (the "Share Purchase
Contracts"), which Share Purchase Contracts are to be issued pursuant
to a Purchase Contract Agreement (the "Purchase Agreement") between
the Company and a purchase contract agent (the "Purchase Contract
Agent"), all as specified in Schedule I hereto; (8) the share purchase
units, if any, each consisting of a Share Purchase Contract and a Debt
Security or a debt obligation of a third party, including a U.S.
Treasury security (the "Share Purchase Units") to be issued under the
Purchase Agreement, all as specified in Schedule I hereto; (9)
warrants, if any, to purchase Preferred Shares (the "Preferred Shares
Warrants") of the Company, which warrants are to be issued pursuant to
a Preferred Shares Warrant Agreement (the "Preferred Shares Warrant
Agreement") between the Company and a warrant agent (the "Preferred
Shares Warrant Agent"), all as specified in Schedule I hereto; (10)
warrants, if any, to purchase Common Shares ("Common Shares Warrants")
of the Company, which warrants are to be issued pursuant to a Common
Shares Warrant Agreement (the "Common Shares Warrant Agreement")
between the Company and a warrant agent (the "Common Shares Warrant
Agent"), all as specified in Schedule I hereto; and/or (11) warrants,
if any, to purchase Depositary Shares (the "Depositary Shares
Warrants") of the Company, which warrants are to be issued pursuant to
a Depositary Shares Warrant Agreement (the "Depositary Shares Warrant
Agreement" and together with each other warrant agreement contemplated
herein being referred to herein collectively as the "Warrant
Agreements") between the Company and a warrant agent (the "Depositary
Shares Warrant Agent" and together with each other warrant agent
contemplated herein being referred to herein collectively as the
"Warrant Agents"), all as specified in Schedule I hereto. The Debt
Securities, Debt Warrants, Preferred Shares, Depositary Shares, Common
Shares, Share Purchase Contracts, Share Purchase Units, Preferred
Shares Warrants, Common Shares Warrants and Depositary Shares Warrants
(all such warrants being referred to herein collectively as
"Warrants") may be sold either separately or as units (the "Units")
together with any of the foregoing. The Debt Securities, Debt
Warrants, Preferred Shares, Depositary Shares, Common Shares, Share
Purchase Contracts, Share Purchase Units, Preferred Shares Warrants,
Common Shares Warrants, Depositary Shares Warrants and Units described
in Schedule I hereto shall collectively be referred to herein as the
"Purchased Securities". The Company may also grant to the
Underwriters an option to purchase up to such additional number of
Purchased Securities as is specified in Schedule I hereto (the "Option
Securities"). The Purchased Securities and Option Securities shall be
collectively referred to herein as the "Securities". If the firm or
firms listed in Schedule II hereto include only the firm or firms
described above as Representatives, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to
such firm or firms.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No.333-78131)
relating to the Securities and the offering thereof from time to time
in accordance with Rule 415 under the Securities Act of 1933, as
2
amended (the "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 each been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). The Company has filed
such post-effective amendments thereto as may be required prior to the
execution of this Agreement and each such post-effective amendment has
been declared effective by the Commission. Promptly after execution
and delivery of this Agreement, the Company will prepare and file a
basic prospectus and prospectus supplement in accordance with the
provisions of paragraph (b) of Rule 424 ("Rule 424(b)") under the Act.
Such registration statement, including the exhibits thereto, as
amended at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424(b)
(including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus". Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424(b) is
hereinafter called the "Preliminary Prospectus". Any reference herein
to the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the date of
this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be;
provided that if the Company files a registration statement with the
Commission pursuant to Rule 462(b) under the Act (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement,
or the issue date of the Basic Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. For purposes of this Agreement, all references
to the Registration Statement, Final Prospectus, or Preliminary
Prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include any 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" (or other references of like import) in the Registration
Statement, Final Prospectus or Preliminary Prospectus shall be deemed
to mean and include all such financial statements and schedules and
other information which is incorporated by reference in the
3
Registration Statement, Prospectus or Preliminary Prospectus, as the
case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Final Prospectus or
Preliminary Prospectus shall be deemed to mean and include the filing
of any document under the Exchange Act which is incorporated by
reference in the Registration Statement, Prospectus or Preliminary
Prospectus, as the case may be.
SECTION 1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the 1933 Act. The Registration Statement (including 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 such 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. In
addition, the Indentures have been duly qualified under the 1939 Act.
(b) On the effective date of the Registration Statement
(including any Rule 462(b) Registration Statement), as of the date
hereof, when the Final Prospectus is first filed pursuant to Rule
424(b) under the Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the
Final Prospectus is filed with the Commission and at the applicable
Closing Date, (i) the Registration Statement, as amended as of any
such time, any Final Prospectus, as amended or supplemented as of any
such time, and the Indentures will comply in all material respects
with the applicable requirements of the Act, the Trust Indenture Act
and the Exchange Act and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, 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; and (iii) the Final Prospectus, as
amended or supplemented as of any such time, did not and will 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
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 the Final Prospectus or any amendment
thereof or supplement thereto 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 the Final
Prospectus. Each Preliminary Prospectus and the Final Prospectus
delivered to the Underwriters for use in connection with the offering
4
of the Securities was identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T under the 1933 Act Regulations.
(c) The documents incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time
they were or hereafter are filed or last amended, as the case may be,
with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act and the rules and
regulations thereunder and, when read together and with the other
information in the Basic Prospectus and the Final Prospectus, at the
time the Registration Statement and any amendments thereto became or
become effective, at the date of this Agreement and at each Closing
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 the light of the
circumstances under which they were or are made, not misleading.
(d) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement and the Final Prospectus are independent public
accountants as required by the Act and the rules and regulations
thereunder.
(e) The financial statements (other than quarterly or other
unaudited interim financial statements) included or incorporated by
reference in the Registration Statement and the Final Prospectus
present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent (except as otherwise stated
therein) basis; the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein; and the Company's ratios of earnings to
fixed charges (actual and, if any, pro forma) included in the Final
Prospectus and in Exhibit 12 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission. Any quarterly or other unaudited interim financial
statements, and the related notes thereto, included or incorporated by
reference in the Registration Statement and the Final Prospectus, have
been prepared in compliance with the applicable requirements of the
Act, the rules and regulations thereunder, the Exchange Act and the
rules and regulations thereunder and have been prepared on a basis
substantially consistent (except as otherwise stated therein) with
that of the applicable audited financial statements included or
incorporated by reference in the Registration Statement and the Final
Prospectus, and such unaudited interim financial statements contain
all adjustments necessary to present a fair statement of the results
of operations for the periods reported. Any financial information and
statistical data set forth in the Final Prospectus under the captions
"Selected Financial Data" and "Capitalization" or other similar
5
captions are fairly stated in all material respects in relation to the
consolidated financial statements of the Company from which they have
been derived.
(f) Since the respective dates as to which information is given
in the Registration Statement and the Final Prospectus, except as
otherwise stated therein (including information contained in documents
subsequently incorporated by reference in the Registration Statement
or the Final Prospectus), (1) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business; (2) 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 (3)
except for regular dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Indiana with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Final Prospectus; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not in the aggregate have a material adverse
effect on the business or assets of the Company and its subsidiaries
considered as one enterprise.
(h) Each Significant Subsidiary of the Company (as that term is
used in Rule 405 under the Act) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Final
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not in the
aggregate have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one enterprise; all of
the issued and outstanding capital stock of each Significant
Subsidiary shown as owned by the Company on Schedule A to this
Agreement has been duly authorized and validly issued and is fully
paid and nonassessable and is owned by the Company, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or claim.
None of the outstanding shares of capital stock of any Subsidiary was
6
issued in violation of preemptive or other similar rights of any
securityholder of such Subsidiary. The only subsidiaries of the
Company are (A) the subsidiaries listed on Schedule C hereto and (B)
certain other subsidiaries which, considered in the aggregate as a
single Subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-07 of Regulation S-X.
(i) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Final Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Final Prospectus or pursuant to the exercise of convertible securities
or options referred to in the Prospectus or except for the funding of
employee benefit plans referred to in the Final Prospectus). Such
shares of capital stock have been duly authorized and validly issued
by the Company and are fully paid and non-assessable, and none of such
shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company. The certificate
for each outstanding Common Share also represents one Right per share
(if the Rights are then in existence), and (if the Rights Agreement is
then in effect) the outstanding Rights have been duly authorized and
validly issued under the Rights Agreement and are entitled to the
benefits thereof.
(j) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture, joint venture
agreement, mortgage, loan agreement, note, lease or other instrument
to which it or its property may be bound; and the execution and
delivery of this Agreement, the Indentures, the Deposit Agreements,
the Purchase Agreements, the Warrant Agreements, the Delayed Delivery
Contracts, if any, and the Securities and the consummation of the
transactions contemplated herein and therein (including the issuance
and sale of the Securities and the use of the proceeds from the sale
of the Securities as described under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, joint venture
agreement, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of its subsidiaries is a party or by which
any of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the charter or by-
laws of the Company or any of its subsidiaries or any applicable law,
administrative regulation or administrative or court decree.
(k) No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company, is
7
imminent; and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its subsidiaries'
principal suppliers, manufacturers or contractors which might be
expected to result in any material adverse change in the condition,
financial or otherwise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(l) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its subsidiaries, which is required to
be disclosed in the Registration Statement or the Final Prospectus
(other than as disclosed therein), or which might materially and
adversely affect the consummation of this Agreement or, except in
cases in which such consequences are remote, which might result in any
material adverse change in the condition, financial or otherwise, or
in the earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or, except in cases in
which such consequences are remote, which might materially and
adversely affect the properties or assets thereof; all pending legal
or governmental proceedings to which the Company or any subsidiary is
a party or of which any of their property is the subject which are not
described in the Registration Statement or the Final Prospectus,
including ordinary routine litigation incidental to the Company's
business, are, considered in the aggregate, not material to the
Company and its subsidiaries considered as one enterprise; and there
are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the Act or by the rules and regulations
thereunder which have not been so filed.
(m) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names (collectively, the "Intellectual Property") presently
employed by them in connection with the business now operated by them,
except where the failure to own or possess, or inability to so
acquire, such Intellectual Property would not result in any material
adverse change in the condition, financial or otherwise, or in the
assets, earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; 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 of the foregoing which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in any material adverse change in the condition, financial or
otherwise, or in the assets, earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
8
(n) No authorization, approval or consent of any court or
governmental authority or agency is required for the consummation by
the Company of the transactions contemplated by this Agreement, except
such as may be required under the Act or the rules and regulations
thereunder or state securities laws for the Securities and the
qualification of the Indentures under the Trust Indenture Act.
(o) The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal or
foreign governmental or regulatory agencies or bodies necessary to
conduct the business now operated by them, except where the failure to
possess such certificates, authorities or permits would not materially
and adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries
considered as one enterprise; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as
one enterprise.
(p) This Agreement and the Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by the Company.
(q) In the case of an offering of Debt Securities (which may be
offered either separately or as Share Purchase Units together with
Share Purchase Contracts) or Debt Warrants, each of the applicable
Indenture and Debt Warrant Agreement, if any, has been duly and
validly authorized, executed and delivered by the Company and is
substantially in the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement at the time
the Registration Statement became effective; the applicable Indenture
has been duly qualified under the Trust Indenture Act; and, assuming
due authorization, execution and delivery by the Trustee and/or Debt
Warrant Agent, each of the applicable Indenture and Debt Warrant
Agreement, if any, constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
respective terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by
general equitable principles; the Debt Securities are in the form
contemplated by the applicable Indenture and the Debt Securities and
Debt Warrants have been duly and validly authorized by the Company
and, when executed by the proper officers of the Company,
countersigned by the Debt Warrant Agent under the Debt Warrant
Agreement and authenticated in accordance with the provisions of the
applicable Indenture and delivered pursuant to the Debt Warrant
Agreement, in the case of Debt Warrants, and in all cases delivered to
and paid for by the Underwriters pursuant to this Agreement, in the
case of all of the Underwriters' Securities, or by the purchasers
9
thereof pursuant to the Delayed Delivery Contracts, in the case of any
Contract Securities, will in each case constitute a valid and binding
obligation of the Company, be convertible (in the case of those
Subordinated Securities that by their terms are so convertible) for
Common Shares or other securities of the Company in accordance with
their terms as set forth in the Final Prospectus and will be entitled
to the benefits of the applicable Indenture enforceable against the
Company 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 creditors' rights
generally or by general equitable principles; if the Debt Securities
are convertible into Common Shares or other securities of the Company,
the Common Shares or other securities issuable upon such conversion
will have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly
issued, fully paid (assuming the underlying Debt Securities have been
paid for) and nonassessable; such Common Shares or other securities
will have been duly authorized and issued, will be fully paid
(assuming the underlying Debt Securities have been paid for) and
nonassessable and will conform to the description thereof contained in
the Final Prospectus; and the stockholders of the Company have no
preemptive rights with respect to any of such Common Shares or other
securities issuable upon such conversion.
(r) In the case of an offering of Preferred Shares, including
any Preferred Shares constituting Option Securities, the Preferred
Shares being delivered and paid for at such Closing Date have been
duly authorized, validly issued and are fully paid and nonassessable;
the Contract Securities, when issued, delivered and sold pursuant to
the Delayed Delivery Contracts, will be duly issued, fully paid and
nonassessable; the Contract Securities, when so issued, delivered and
sold, will conform, to the descriptions thereof contained in the Final
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to any of such Preferred Shares. If the Preferred
Shares being delivered at such Closing Date are convertible into
Common Shares or other securities of the Company, such Preferred
Shares are, and the Contract Securities, when so issued, delivered and
sold, will be, convertible into Common Shares or other securities of
the Company in accordance with their terms; the Common Shares or other
securities initially issuable upon conversion of such Preferred Shares
will have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be duly issued,
fully paid and nonassessable; such Common Shares have been duly
authorized and issued, are fully paid (assuming the underlying
Preferred Shares have been paid for) and nonassessable and conform to
the description thereof contained in the Final Prospectus.
(s) In the case of an offering of Depositary Shares, including
any Depositary Shares constituting Option Securities, the Preferred
Shares being paid for, delivered to the Depositary and represented by
the Depositary Shares at such Closing Date have been duly authorized;
the Preferred Shares delivered to the Depositary and represented by
10
Depositary Shares at such Closing Date, assuming that such Depositary
Shares have been issued, paid for and delivered to the Depositary
against delivery of depositary receipts evidencing the applicable
Depositary Shares to the Underwriters, have been validly issued and
are fully paid and nonassessable; the Contract Securities, when
issued, delivered and sold pursuant to the Delayed Delivery Contracts,
will be duly issued, fully paid and nonassessable; the Contract
Securities, when so issued, delivered and sold, will conform, to the
descriptions thereof contained in the Final Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
any of such Depositary Shares or the Preferred Shares represented
thereby. If Preferred Shares represented by Depositary Shares being
delivered at such Closing Date are convertible into Common Shares or
other securities, such Preferred Shares are, and the Preferred Shares
represented by Depositary Shares constituting Contract Securities,
when so issued, delivered and sold, will be, convertible into Common
Shares or other securities of the Company in accordance with their
terms; the Common Shares initially issuable upon conversion of
Preferred Shares represented by Depositary Shares will have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be duly issued, fully paid and
nonassessable; such Common Shares have been validly authorized and
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Final Prospectus.
(t) In the case of an offering of Depositary Shares, assuming
due authorization, execution and delivery of the Deposit Agreement by
the Depositary, the Deposit Agreement has been duly authorized,
executed and delivered by the Company and is a 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 creditors' rights generally or by general equitable
principles; and the depositary receipts when executed, paid for and
delivered pursuant to the Deposit Agreement upon deposit of the
Preferred Shares thereunder, will be validly issued and will entitle
the holders thereof to the rights in respect of the applicable
Depositary Shares specified therein and in the Deposit Agreement.
(u) In the case of an offering of Common Shares, including any
Common Shares constituting Option Securities, the Common Shares being
delivered and paid for at such Closing Date have been duly authorized,
validly issued and are fully paid and nonassessable; the related
Rights (if the Rights Agreement is then in effect) have been duly
authorized and validly issued under the Rights Agreement and are
entitled to the benefits thereof; the Contract Securities, when
issued, delivered and sold, pursuant to the Delayed Delivery
Contracts, will be duly issued, fully paid and nonassessable; the
Contract Securities, when so issued, delivered and sold, will conform
to the description thereof contained in the Final Prospectus; neither
the issuance of the Common Shares nor the issuance of the related
Rights is subject to preemptive rights; and the Company has reserved
11
one one-hundredth share of Series C Preferred for issuance upon
exercise of each Right.
(v) In the case of an offering of Share Purchase Contracts and
Share Purchase Units, the Purchase Agreement has been duly authorized,
executed and delivered by the Company; assuming due authorization,
execution and delivery by the Purchase Contract Agent, the Purchase
Agreement is a 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 creditors' rights
generally or by general equitable principles; and the Share Purchase
Contracts and the Share Purchase Units when duly authorized, executed,
authenticated, issued and delivered pursuant to the Purchase Agreement
will each constitute a valid and binding obligation of the Company
enforceable against the Company 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 creditors' rights generally or by general equitable
principles.
(w) In the case of an offering of Preferred Shares Warrants and
Common Shares Warrants, the applicable Warrant Agreement has been duly
authorized, executed and delivered by the Company; and, assuming due
authorization, execution and delivery by the applicable Warrant Agent,
the applicable Warrant Agreement constitutes a valid and binding
instrument enforceable against the Company 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 creditors' rights generally or by general equitable
principles; the applicable Warrants have been duly and validly
authorized and, when executed by the proper officers of the Company,
countersigned by the applicable Warrant Agent under the applicable
Warrant Agreement and in all cases delivered pursuant to the
applicable Warrant Agreement and delivered to and paid for by the
Underwriters pursuant to this Agreement (or by the purchasers thereof
pursuant to the Delayed Delivery Contracts in the case of any Contract
Securities) will in each case constitute a valid and binding
obligation of the Company enforceable against the Company 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 creditors' rights generally or
by general equitable principles; and will be entitled to the benefits
of the applicable Warrant Agreement; and in the case of Preferred
Shares Warrants and Common Shares Warrants, the Preferred Shares or
Common Shares initially issuable upon the exercise thereof have been
duly and validly authorized and reserved for issuance upon such
exercise and such shares, when issued upon such exercise in accordance
with the terms of the respective Warrant Agreement and at the prices
therein provided for, will be duly authorized, validly issued, fully
paid and nonassessable.
12
(x) The Securities, the Rights, the Company's Series C Junior
Participating Preferred Shares (the "Series C Preferred") and, in the
case of an offering of Debt Securities and/or Debt Warrants, the
applicable Indenture, will conform in all material respects to the
respective statements relating thereto contained in the Final
Prospectus and the Registration Statement and will be in substantially
the respective forms filed or incorporated by reference, as the case
may be, as exhibits to the Registration Statement.
(y) The Senior Debt Securities rank and will rank on a parity
with all unsecured indebtedness (other than subordinated indebtedness)
of the Company that is outstanding on the date hereof or that may be
incurred hereafter, and senior to all subordinated indebtedness of the
Company that is outstanding on the date hereof or that may be incurred
hereafter.
(z) There are no holders of securities of the Company with
currently exercisable registration rights to have any securities so
held included in the offering contemplated by this Agreement and the
Registration Statement.
(aa) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(bb) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Securities.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering and sale of the Securities pursuant to
this Agreement shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from
the Company, at the respective purchase prices and upon the terms and
conditions set forth in Schedule I hereto the principal amount or
number of Purchased Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides
for the sale of Purchased Securities pursuant to delayed delivery
arrangements, the respective principal amount or number of such
Purchased Securities to be purchased by the Underwriters, shall be as
set forth in Schedule II hereto less the respective amounts or number
of Contract Securities determined as provided below. Purchased
Securities to be purchased by the Underwriters are herein sometimes
13
called the "Underwriters' Securities" and Purchased Securities to be
purchased pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") as hereinafter provided are herein called "Contract
Securities".
(b) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Purchased Securities from the
Company pursuant to Delayed Delivery Contracts, substantially in the
form of Schedule III hereto but with such changes therein as the
Company may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will
pay to the Representatives, for the account of the Underwriters, on
the applicable Closing Date, an amount as follows: (i) in the case of
Debt Securities, Debt Warrants and Units consisting of Debt Securities
and Debt Warrants, an amount equal to the percentage set forth in
Schedule II hereto of the principal amount of the Debt Securities or
number of Debt Warrants for which such Delayed Delivery Contracts are
made, (ii) in the case of Preferred Shares, Depositary Shares and
Units consisting of Preferred Shares and any other Securities, an
amount equal to the percentage set forth in Schedule II hereto of the
aggregate liquidation preference of Preferred Shares, including shares
represented by such Depositary Shares, for which Delayed Delivery
Contracts are made, (iii) in the case of all other Securities, an
amount as set forth in Schedule II hereto with respect to Securities
for which such Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions. The Company will
enter into Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters, and the parties to
such Delayed Delivery Contracts, have been approved by the Company
but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must (x) in the case of Debt Securities, Debt
Warrants or Units consisting of Debt Securities and Debt Warrants, be
for not less than the minimum principal amount set forth in Schedule I
hereto and the aggregate principal amount of Contract Securities may
not exceed the maximum aggregate principal amount set forth in
Schedule I hereto, (y) in the case of Preferred Shares, Depositary
Shares or Units consisting of Preferred Shares and any other
Securities, be for not less than the minimum number of Preferred
Shares set forth in Schedule I hereto and the aggregate number of
Preferred Shares, including shares represented by such Depositary
Shares, of Contract Securities may not exceed the maximum aggregate
number of Preferred Shares set forth in Schedule I hereto and (z) in
the case of all other Securities, be for not less than the minimum
number of each of such Securities respectively set forth in Schedule I
hereto and the aggregate number of each of such Securities
constituting Contract Securities may not exceed the maximum number of
each of such Securities respectively set forth in Schedule I hereto.
The Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The principal
amount or number of Purchased Securities to be purchased by each
14
Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total principal
amount or number of Contract Securities as the principal amount or
number set forth opposite the name of such Underwriter bears to the
aggregate principal amount or number of such Purchased Securities set
forth in Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion and so
advise the Company in writing; provided, however, that the total
principal amount or number of the Purchased Securities to be purchased
by all Underwriters shall be the aggregate principal amount or number
set forth in Schedule II hereto less the aggregate principal amount or
number of Contract Securities. The Company will advise the
Representatives not later than the business day prior to the
applicable Closing Date of the aggregate principal amount or number,
as the case may be, of the Contract Securities.
SECTION 3. Delivery and Payment. (a) Delivery of the
Underwriters' Securities shall be made at the office of Schiff Hardin
& Waite, 6600 Sears Tower, Chicago, Illinois, or at such other place
as shall be agreed upon by the Representatives and the Company, or at
the office of The Depositary Trust Company ("DTC") if the
Underwriters' Securities are issued in book-entry form, and payment
for such Securities shall be made at the above office of Schiff Hardin
& Waite, or at such other place as shall be agreed upon by the
Representatives and the Company, on the date and at the time specified
in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided
in Section 11 hereof (such date and time of delivery and payment for
the Underwriters' Securities being herein referred to in the case of
Purchased Securities as the "Purchased Securities Closing Date", in
the case of Option Securities as the "Option Securities Closing Date"
and each such date being referred to herein as a "Closing Date").
Delivery of the Underwriters' Securities (which, in the case of
Depositary Shares, shall be deemed to occur upon confirmation of
delivery of the applicable number of Preferred Shares to the
Depositary against delivery of the depositary receipts evidencing the
Depositary Shares in respect thereof) shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of
the Company by certified or official bank check or checks drawn on or
by a Chicago Clearing House bank and payable in next day funds or by
such other means as are specified in Schedule I hereto.
(b) If specified in Schedule I hereto, the several Underwriters
will be compensated for their respective commitments and obligations
by separate payment to the Representatives for the respective accounts
of such Underwriters. Any such payment by the Company to the
Underwriters shall be made simultaneously with the payment by the
Underwriters to the Company of the purchase price of the Underwriters'
Securities as specified herein. Any separate payment of compensation
by the Company to the Underwriters shall be made by certified or
15
official bank check or checks drawn on or by a Chicago Clearing House
bank and payable in next day funds to the order of the Representatives
or by such other means as are specified in Schedule I hereto.
(c) If specified in Schedule I and the Underwriters' Securities
are issued in book-entry form, payment shall be made in immediately
available funds by fed wire. Certificates for the Underwriters'
Securities shall be registered in such names and in such denominations
as the Representatives may request not less than two full business
days in advance of the applicable Closing Date, provided that, if the
Underwriters' Securities are in book-entry form, the registration
thereof, including the determination of the denominations thereof,
shall be in accordance with the regulations of DTC.
(d) The Company agrees to have the Underwriters' Securities
available for inspection, checking or packaging by the Representatives
in New York, New York, not later than 1:00 P.M., New York City time,
on the business day prior to the applicable Closing Date, unless the
Underwriters' Securities are in book-entry form.
SECTION 4. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Final Prospectus setting forth the principal
amount or number of Securities covered thereby and their terms (not
otherwise specified in the applicable Indenture in the case of Debt
Securities and/or Debt Warrants), the names of the Underwriters and
the principal amount or number of Securities which each severally has
agreed to purchase, the names of the Representatives, the price at
which the Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the selling concession and
reallowance, if any, and such other information as the Representatives
and the Company deem appropriate in connection with the offering of
the Securities. The Company will promptly transmit copies of the
Final Prospectus to the Commission for filing pursuant to Rule 424 of
the Act and will furnish to the Underwriters named therein as many
copies of the Final Prospectus and any Preliminary Prospectus as such
Underwriters shall reasonably request. Each Prospectus and any
amendments or supplements thereto furnished to the Underwriters will
be identical to any electronically transmitted copy thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(b) The Company will notify the Representatives immediately, and
promptly confirm the notice in writing, (i) of the effectiveness of
any amendment to the Registration Statement, (ii) of the mailing or
the delivery to the Commission for filing of any supplement to the
Final Prospectus or any document to be filed pursuant to the Exchange
Act which will be incorporated by reference into the Registration
Statement or Final Prospectus, (iii) of the receipt of any comments or
other communications from the Commission with respect to the
16
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus or for additional information, and
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make 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.
(c) For so long as a Final Prospectus is required to be
delivered in connection with the sale of Securities covered by this
Agreement, the Company will give the Representatives notice of its
intention to file any amendment to the Registration Statement or any
amendment or supplement to the Final Prospectus (including through the
filing of documents under the Exchange Act or a prospectus filed
pursuant to Rule 424(b) which differs from the prospectus on file at
the Commission), whether pursuant to the Act, the Exchange Act or
otherwise, will furnish the Representatives with copies of any such
amendment or supplement or other documents proposed to be filed a
reasonable time in advance of filing, and will not file any such
amendment or supplement to which the Representatives or counsel for
the Underwriters shall reasonably object.
(d) The Company will deliver to the Representatives as many
signed and conformed copies of the registration statement (as
originally filed) and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus pursuant to Item 12 of
Form S-3 under the Act) as the Representatives may reasonably request,
and will also deliver to the Representatives a conformed copy of the
Registration Statement and each amendment thereto for each of the
Underwriters. The Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) The Company will comply with the Act, the Exchange Act and
the Trust Indenture Act, and the rules and regulations under each such
Act so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Registration
Statement and the Final Prospectus. If 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 further
amend or supplement the Final Prospectus in order that the Final
Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading in the light of circumstances existing at the
time it is delivered to a purchaser or prospective purchaser or if it
shall be necessary, in the opinion of either such counsel, at any such
17
time to amend or supplement the Registration Statement or the Final
Prospectus in order to comply with the requirements of the Act or
rules and regulations thereunder, the Company will promptly prepare
and file with the Commission such amendment or supplement, whether by
filing documents pursuant to the Exchange Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities and any Debt Securities,
Common Shares or Preferred Shares which may be issuable pursuant to
the exercise or conversion, as the case may be, of Securities offered
by the Company, for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as
the Representatives may designate, and will maintain such
qualifications in effect for a period of not less than one year from
the later of the effective date of the Registration Statement and any
Rule 462(b) Registration Statement; 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 or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification in effect
for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) The Company will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to
its security holders as soon as practicable an earnings statement for
the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Act.
(h) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Final
Prospectus relating to such Securities under "Use of Proceeds".
(i) The Company will use its best efforts to (i) arrange for the
listing of any Common Shares constituting Securities hereunder or
issuable upon conversion or exercise of any of the Securities upon
notice of issuance on the New York Stock Exchange, Inc. or such other
national securities exchanges on which the Company's outstanding
Common Shares are then listed and (ii) list any other Securities on
the exchanges, if any, specified in Schedule I hereto.
(j) The Company, during the period when the Final Prospectus is
required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13, 14 or 15 of the Exchange Act within the time periods required by
the Exchange Act and the rules and regulations thereunder.
18
(k) For a period of five years after each Closing Date, the
Company will furnish to the Representatives copies of all reports and
communications delivered to shareholders or holders of any of the
Securities as a class and will also furnish copies of all reports
(excluding exhibits, unless requested by the Representatives) filed
with the Commission on Forms 8-K, 10-Q and 10-K.
(l) In the event that the Securities being issued and sold
pursuant to this Agreement are Common Shares or Common Share Warrants,
for a period of 90 days from the date of this Agreement, the Company
will not, without the Representatives' prior written consent, directly
or indirectly, sell, offer to sell, grant any option for the sale of,
enter into an agreement to sell, or otherwise dispose of, any
Securities to which this Agreement relates or securities similar to
such Securities, or any securities convertible into or exercisable for
any such Securities or any such similar securities, except for
Securities sold pursuant to this Agreement, securities issued upon
conversion of Securities issued under this Agreement, securities
issued upon conversion of securities issued by the Company that are
outstanding on the date of this Agreement, and Common Shares issued
pursuant to employee benefit, executive compensation and dividend
reinvestment plans of the Company, and the Company will not file a
registration statement under the Act with respect to any such
Securities, or securities similar to such securities of the Company,
held by others.
(m) In the event that the Securities being issued and sold
pursuant to this Agreement are Securities other than Common Shares or
Common Share Warrants, for a period of [___] days from the date of
this Agreement, the Company will not, without the Representatives'
prior written consent, directly or indirectly, sell, offer to sell,
grant any option for the sale of, enter into an agreement to sell, or
otherwise dispose of, any Securities to which this Agreement relates
or securities similar to such Securities, or any securities
convertible into or exchangeable or exercisable for any such
Securities or any such similar securities, except for Securities sold
pursuant to this Agreement and securities issued upon conversion of
Securities issued under this Agreement, and the Company will not file
a registration statement under the Act with respect to any such
Securities or securities similar to such securities of the Company
held by others.
(n) If necessary or otherwise required, the Company will comply
with all of the provisions of Section 517.075 of the Florida Statutes,
and all rules and regulations promulgated thereunder, relating to
issuers doing business in Cuba.
SECTION 5. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing, filing and
delivery of the registration statement (as originally filed) and all
amendments thereto, (ii) the preparation, issuance and delivery to the
19
Underwriters of the certificates for the Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Securities under applicable state securities laws
in accordance with the provisions of Section 4(f), 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 Survey or Legal Investment Survey, (v) the
printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the registration statement (as originally filed)
and any amendments thereto, and of the Final Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to
the Underwriters of copies of the applicable Indenture and any Blue
Sky Survey or Legal Investment Survey, (vii) the fees, if any, charged
by nationally recognized statistical rating organizations for the
rating of the Securities, or (viii) if applicable, the cost of
qualifying the Securities with the Depository Trust Company, (ix) the
fees and expenses, if any, incurred in connection with the listing of
the Securities on any securities exchange, (x) the fees and expenses
of the Trustees, if any, including the fees and disbursements of
counsel for the Trustees in connection with the Indentures and the
Securities, and (xi) the fees, if any, of the National Association of
Securities Dealers, Inc.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 6 or Section 10(i), the
Company shall reimburse the Underwriters named in this Agreement for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy
of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of its obligations,
covenants and agreements hereunder, and to the following further
conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 under the Act not later than 5:30
p.m., New York City time, on the second business day following the
date hereof; and at the applicable Closing Date (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings therefor initiated or
threatened by the Commission and any request on the part of the
Commission for additional information shall have been complied with to
the satisfaction of counsel for the Underwriters, (ii) except where
the only Securities are Common Shares or Common Shares Warrants, the
rating assigned by any nationally recognized securities rating agency
to any debt securities or preferred shares of the Company as of the
date of this Agreement shall not have been lowered since the execution
of this Agreement and no such agency shall have publicly announced
20
that it has placed any of such debt securities or preferred shares on
what is commonly termed a "watch list" for possible downgrading, and
(iii) there shall not have come to the attention of the
Representatives any facts that cause them, after disclosing such facts
to, and discussing them with, the Company, reasonably to believe that
the Final Prospectus, at the time it was required to be delivered to a
purchaser of the Securities, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in light of the circumstances existing
at such time, not misleading.
(b) At the applicable Closing Date, the Representatives shall
have received:
(1) The favorable opinion, dated as of the applicable
Closing Date, of Schiff Hardin & Waite, counsel for the
Company, in form and substance satisfactory to counsel for
the Underwriters, with such specificity as is necessary to
reflect particularly the Securities purchased on such
Closing Date to the effect set forth in Exhibit A hereto:
(2) The favorable opinion, dated as of the applicable
Closing Date, of Ronald R. Snyder, Esq., Vice President,
General Counsel and Secretary of the Company, in form and
substance satisfactory to counsel for the Underwriters, to
the effect set forth in Exhibit B hereto.
(3) The favorable opinion or opinions, dated as of the
applicable Closing Date, of counsel for the Underwriters,
with respect to the incorporation of the Company, the
validity of the Securities being sold at the Closing Date,
the Registration Statement, the Final Prospectus and other
related matters as the Underwriters may reasonably request,
and such counsel shall have received such papers and
information as they reasonably request to enable them to
pass upon such matters. In giving their opinion, such
counsel may rely as to matters of Indiana corporate law upon
the opinion of Schiff Hardin & Waite.
(c) At the applicable Closing Date there shall not have been,
since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement and the Final
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, 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 Officer,
Chief Accounting Officer or Treasurer of the Company, dated as of such
Closing Date, to the effect that (i) there has been no such material
adverse change; (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though
21
expressly made again at and as of such Closing Date; (iii) the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to such Closing Date;
and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from Pricewaterhouse Coopers LLP
and any other independent certified public accountants who have
reviewed financial statements included in the Registration Statement
or the Final Prospectus letters, dated as of the date of this
Agreement and as of the applicable Closing Date, in form and substance
satisfactory to the Representatives 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 Final Prospectus.
(e) At the applicable Closing Date, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(f) If any of the Securities are to be listed on the New York
Stock Exchange, Inc. or any other national stock exchange, such
Securities shall have been duly listed, subject to notice of issuance,
on such stock exchange.
(g) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by
Underwriters, and the parties to such Delayed Delivery Contracts, have
been approved by the Company.
(h) In the case of an offering of Debt Securities, since the
time of execution of this Agreement, there shall not have occurred a
downgrading in, or withdrawal of, the rating assigned to the
Securities or any of the Company's other securities by any such rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Securities or any of the Company's other securities.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company at any time
at or prior to the applicable Closing Date, and such termination shall
22
be without liability of any party to any other party except as
provided in Section 5.
SECTION 7. 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 Act or Section 20 of the
Exchange Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), including all documents incorporated by
reference therein, 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 the Basic
Prospectus, any Preliminary Prospectus or the Final
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
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, if such
settlement is effected with the written consent of the
Company; and
(3) against any and all expense whatsoever, as
incurred (including, subject to Section 7(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 (1) or
(2) above;
provided, however, that this indemnity 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
23
furnished to the Company by any Underwriter through you expressly for
use in the Registration Statement (or any amendment thereto) or the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus
(or any amendment or supplement thereto) and provided, further, that
the foregoing indemnity with respect to any untrue statement contained
in or any omission from the Preliminary Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such
underwriter) from whom the person asserting any such loss, liability,
claim, damage or expense purchased any of the Securities that are the
subject thereof if the Company shall sustain the burden of proving
that: (i) the untrue statement or omission contained in the
Preliminary Prospectus (excluding documents incorporated by reference)
was corrected, (ii) such person was not sent or given a copy of the
Final Prospectus (excluding documents incorporated by reference) which
corrected the untrue statement or omission at or prior to the written
confirmation of the sale of such Securities to such person if required
by applicable law, and (iii) the Company satisfied its obligation
pursuant to Section 4(c) of this Agreement to provide a sufficient
number of copies of the Final Prospectus to the Underwriters.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange 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 the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus (or any
amendment or 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) the Basic Prospectus, Preliminary
Prospectus or the Final 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 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. An
indemnifying party may participate at its own expense in the defense
of such action. In no event shall the indemnifying parties be liable
for the 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,
24
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 7 or Section 8 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.
SECTION 8. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to 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 the Underwriters, on the other
hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any
other relevant equitable considerations.
The relative benefits received by the Company, on the one hand,
and the Underwriters, on the other hand, in connection with the
offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the total underwriting
discount received by the Underwriters, in each case as set forth on
the cover of the Final Prospectus. The relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 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 8. The aggregate amount of losses, liabilities, claims,
25
damages and expenses incurred by an indemnified party and referred to
above in this Section 8 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 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the 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 an Underwriter within the
meaning of Section 15 of the Act shall have the same 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 Act or Section 20 of the Exchange Act shall have the
same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are
several in proportion to the principal amount of Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement, or contained in certificates of officers
of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any investigation made by or
on behalf of any Underwriter or controlling person, or by or on behalf
of the Company, and shall survive delivery of the Securities to the
Underwriters.
SECTION 10. Termination. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to
the applicable Closing Date (i) if there has been, since the date of
this Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak
or escalation of hostilities or other calamity or crisis or any change
or development involving a prospective change in national or
international political, financial or economic conditions, in each
case, the effect of which is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities or enforce
26
contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by
the Commission or the New York Stock Exchange or the Chicago Stock
Exchange, or if trading generally on the New York Stock Exchange or
the American Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been
required, by either of said exchanges or by such system or by order of
the Commission, the NASD or any other governmental authority, or (iv)
a banking moratorium has been declared by either Federal or New York
authorities. In the event of any such termination, such termination
shall be without liability of any party to any other party except as
provided in Section 5. Notwithstanding any such termination, the
provisions of Sections 7 and 8 shall remain in effect.
SECTION 11. Default. If one or more of the Underwriters shall
fail at the applicable Closing Date to purchase the 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, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may
be, of Defaulted Securities does not exceed 10% of the number or
aggregate principal amount of the Securities to be purchased pursuant
to this Agreement, 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 under this Agreement bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may
be, of Defaulted Securities exceeds 10% of the number or aggregate
principal amount of the Securities to be purchased pursuant to this
Agreement, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the
Company shall have the right to postpone the applicable Closing Date
for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Final Prospectus, or in any
other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under
this Section 11.
27
SECTION 12. 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
____________________________________________________________,
Attention: ____________________. Notices to the Company shall be
directed to it at One Noblitt Plaza, Post Office Box 3000, Columbus,
Indiana 47202, Attention: Ronald R. Snyder, Vice President, General
Counsel and Secretary, with a copy to Schiff Hardin & Waite, 6600
Sears Tower, Chicago, Illinois 60606, Attention: Frederick L.
Hartmann.
SECTION 13. 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 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 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 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
Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. Governing Law and Time. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day
refer to New York City time.
SECTION 15. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
Arvin Industries, Inc.
By:
-----------------------------------
Name:
-----------------------------------
Title:
----------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
[Name, address and signature block
for Underwriters or Representatives.]
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing Agreement.
29
SCHEDULE I
Debt Securities
Debt Warrants
Underwriting Agreement dated
Trustee:
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Interest rate:
Interest payable:
Commencing:
Date of maturity:
Public offering price:
Purchase price:
Form of payment:
Form of Securities:
Redemption provisions:
Sinking fund requirements:
Lockup provisions:
Convertibility into other Securities:
Other provisions:
Other Provisions of or Amendments to Underwriting Agreement:
Description of Debt Warrants:
Title of Debt Warrant Agreement:
Debt Warrant Agent:
Debt Warrant exercise price and currency:
I-1
Principal amount and currency of Debt Warrant:
Securities issuable upon exercise of one Debt Warrant:
Date after which Debt Warrants may be exercised:
Expiration date:
Detachable date (if applicable):
Description of Debt Warrant Securities:
Title:
Trustee:
Principal amount and currency:
Purchase price and currency:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangement:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from Pricewaterhouse
Coopers LLP delivered pursuant to Section 6(d) at the Closing Date:
I-2
PREFERRED SHARES
Underwriting Agreement dated
Designation, Purchase Price and Description of Preferred Shares:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued
dividends, if any):
Other provisions:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Deposit Agreement: Terms and Conditions
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Convertibility into Common Shares or other securities:
Modification of items to be covered by the letter from Pricewaterhouse
Coopers LLP delivered pursuant to Section 6(d) at the Closing Date:
I-3
DEPOSITARY SHARES REPRESENTING PREFERRED SHARES
Underwriting Agreement dated
Designation, Purchase Price and Description of Preferred Shares:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued
dividends, if any):
Other provisions:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from Pricewaterhouse
Coopers LLP delivered pursuant to Section 6(d) at the Closing Date:
I-4
PREFERRED SHARES WARRANTS
Number of Preferred Shares Warrants to be issued:
Warrant Agreement:
Form of Preferred Shares Warrants: [Registered] [Bearer]
Issuable jointly with other Securities: [Yes] [No]
[Number of Preferred Shares Warrants issued with each ________
amount or $__________ principal amount of other Securities]
[Detachable Date:]
Date from which Preferred Shares Warrants are exercisable:
Date on which Preferred Shares Warrants expire:
Exercise price(s) of Preferred Shares Warrants:
Public offering price: $______________
Purchase price: $______________
Title and terms of Preferred Shares:
Principal Amount of Preferred Shares purchasable upon exercise of one
Warrant:
Other Provisions of or Amendments to the Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
I-5
COMMON SHARES
Underwriting Agreement dated
Number of shares:
Purchase price per share:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum principal amount of each contract:
Modification of items to be covered by the letter from Pricewaterhouse
Coopers LLP delivered pursuant to Section 6(d) at the Closing Date:
I-6
COMMON SHARES WARRANTS
Number of Common Shares Warrants to be issued:
Warrant Agreement:
Form of Common Shares Warrants: [Registered] [Bearer]
Issuable jointly with other Securities: [Yes] [No]
[Number of Common Shares Warrants issued with each _______ amount
or $__________ principal amount of other Securities]
[Detachable Date:]
Date from which Common Shares Warrants are exercisable:
Date on which Common Shares Warrants expire:
Exercise price(s) of Common Shares Warrants:
Public offering price: $______________
Purchase price: $________________
Principal Amount of Common Shares purchasable upon exercise of one
Warrant:
Other Provisions of or Amendments to the Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
I-7
SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
Underwriting Agreement dated
Purchase Agreement:
Share Purchase Units each consisting of a Share Purchase Contract and
a Debt Security:
Designation:
Aggregate Stated Amount:
Purchase Price:
Public Offering Price:
Share Purchase Units each consisting of a Share Purchase Contract and
a debt obligation of a third party, including a U.S. Treasury
security:
Designation:
Aggregate Stated Amount:
Purchase Price:
Public Offering Price:
Other provisions:
I-8
UNITS
Title and principal amount of Debt Securities or title and number of
Preferred Shares or Common Shares and title and number of Warrants
included in one Unit:
Purchase Price and currency:
Detachable Date:
Other provisions:
I-9
SCHEDULE II
Debt Securities/Debt Warrants
Firm Name $Amount<*>
------------- -------------------
Total ______________
$_____________
ALL OTHER SECURITIES
Firm Name Participation*
----------- -------------------
Total ______________
$______________
<*> If Option Securities are offered, should include the minimum
and maximum principal amount or number of Securities, as the
case may be.
II-1
SCHEDULE III
FORM OF DELAYED DELIVERY CONTRACT
__________________, 19__
[Name and address of Underwriters
or Representatives]
Dear Sirs:
The undersigned hereby agrees to purchase from Arvin Industries,
Inc. (the "Company"), and the Company agrees to sell to the
undersigned, on ____________, 19__, (the "Delivery Date"),
____________ [aggregate principal amount] [number of
[shares][warrants]] of the Company's [title of securities] (the
"Securities") offered by the Company's Prospectus, dated
______________, 19__, and Prospectus Supplement, dated __________,
19__, receipt of a copy of which is hereby acknowledged, at a purchase
price of [____% of the] [principal amount thereof, plus accrued
interest (amortization of original issue discount), if any, thereon
from ___________, 19__ to the date of payment and delivery]
[liquidation preference thereof or shares represented thereby, plus
accrued dividends, if any, thereon from _____________, 19__ to the
date of payment and delivery] [_________ per Debt Warrant, Preferred
Shares Warrant or Common Shares Warrant] [$_____ per share] [other
terms], and on the further terms and conditions set forth in this
contract. Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 A.M., New York City time,
on the Delivery Date to or upon the order of the Company by certified
or official bank check in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the
Company and the undersigned, upon delivery to the undersigned of the
Securities in definitive fully registered form [and in such authorized
denominations] and registered in such names [and for such number of
[shares] [warrants]] as the undersigned may request by written,
telegraphic or facsimile communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in the name of
the undersigned and issued [for the total number of [shares]
[warrants]] [in a denomination equal to the aggregate principal amount
of Securities] to be purchased by the undersigned on the Delivery
Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be
subject to the conditions (and neither party shall incur any liability
by reason of the failure thereof) that (1) the purchase of Securities
to be made by the undersigned, which purchase the undersigned
III-1
represents is not prohibited on the date hereof, 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
the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such [number of [shares] [warrants]] [principal
amount] of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such 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. The obligation of the
undersigned to take delivery of and make payment for the Securities,
and the obligation of the Company to cause the Securities to be sold
and delivered, shall not be affected by the failure of any purchaser
to take delivery of and make payment for the Securities pursuant to
other contracts similar to this contract.
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 acceptance of this contract and other
similar contracts 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 required
that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company
and the undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
[Name of Purchaser]
By: ______________________
[Title of Officer]
[Address]
Accepted:
Arvin Industries, Inc.
By: ____________________________
[Authorized Signature]
III-2