ROHR, INC.
$100,000,000 % Senior Notes due 2003
$50,000,000 % Convertible Subordinated Notes due 2004*
UNDERWRITING AGREEMENT
New York, New York
May , 1994
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Rohr, Inc., a Delaware corporation (the "Company"), proposes to sell to
Salomon Brothers Inc (the "Underwriter") $100,000,000 aggregate principal
amount of its % Senior Notes due 2003 (the "Senior Notes"), to be issued
under an indenture (the "Senior Note Indenture") to be dated as of , 1994
between the Company and IBJ Schroder Bank and Trust Company, as trustee (the
"Senior Note Trustee"). Concurrently therewith, the Company proposes to sell to
the Underwriter $50,000,000 aggregate principal amount of its % Convertible
Subordinated Notes due 2004 (the "Convertible Subordinated Notes"), to be
issued under an indenture (the "Convertible Subordinated Note Indenture" and,
together with the Senior Note Indenture, the "Indentures") to be dated as of
, 1994 between the Company and The Bank of New York, as
Trustee (the "Convertible Subordinated Note Trustee," and, together with the
Senior Note Trustee, the "Trustees"). The Convertible Subordinated Notes are
convertible into shares of common stock of the Company (the "Common Stock").
The Company also proposes to grant to the Underwriter an option to purchase up
to an additional $7,500,000 aggregate principal amount of Convertible
Subordinated Notes (the "Option Notes," with the Option Notes together with the
Senior Notes and Convertible Subordinated Notes hereinafter being called the
"Securities"). Terms not otherwise defined herein have the same meanings as set
forth in the Indentures.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, the Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 33-53113) on Form S-3, including
related Preliminary Prospectuses, for the registration under the Securities Act
of 1933, as amended (the "Securities Act"), of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including the related Preliminary Prospectuses, each of which has previously
been furnished to you. The Company will next file with the Commission either
(i) prior to effectiveness of such registration statement, a further amendment
to such registration statement (including the forms of final Prospectuses) or
(ii) after effectiveness of such registration statement, final Prospectuses in
accordance with Rules 430A and 424(b)(1) or (4). In the case of clause (ii),
the Company has included in such registration statement, as amended at the
Effective Date, all material information (other than Rule 430A Information)
required by the Securities Act and the rules thereunder to be included in the
Prospectuses with respect to the Securities and the offerings thereof. As
filed, such amendment and forms of final Prospectuses, or such final
Prospectuses, shall contain all Rule 430A Information, together with all other
such required information, with respect to the Securities and the offerings
thereof and, except to the extent the Underwriter shall agree in writing to a
modification, shall be in all
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* Plus an option to purchase from Rohr, Inc. up to $7,500,000 aggregate
principal amount of additional notes to cover over-allotments, if any.
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest Preliminary Prospectuses) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Company has also filed
the Indentures with the Commission pursuant to the TIA and the rules and
regulations thereunder.
(b) On the Effective Date, the Registration Statement did or will, and when
the Prospectuses are first filed (if required) in accordance with Rule 424(b)
and on the Closing Date, the Prospectuses (and any supplements thereto) will
comply in all material respects with the applicable requirements of the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the TIA and the respective rules thereunder; on the Effective Date,
the Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date, the Indentures did or will comply
in all material respects with the applicable requirements of the TIA and the
rules thereunder; and, on the Effective Date, the Prospectuses, if not filed
pursuant to Rule 424(b), did not or will not, and, on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Prospectuses (together
with any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-
1) under the TIA of the applicable Trustee or (ii) the information contained in
or omitted from the Registration Statement or the Prospectuses (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Underwriter
specifically for inclusion in the Registration Statement or the Prospectuses
(or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Preliminary
Prospectuses" shall mean any preliminary prospectus referred to in paragraph
(a) above and any preliminary prospectus included in the Registration Statement
at the Effective Date that omits Rule 430A Information. "Prospectus" shall mean
each prospectus relating to the respective Securities that is last filed
pursuant to Rule 424(b) after the Execution Time or, if no filing pursuant to
Rule 424(b) is required, shall mean the form of final prospectus relating to
the Securities included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule 430A.
"Rule 424" and "Rule 430A" refer to such rules under the Securities Act. "Rule
430A Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement when
it becomes effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, the Preliminary Prospectuses or the Prospectuses 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 Exchange Act
on or before the Effective Date of the Registration Statement or the issue date
of such Preliminary Prospectuses or the Prospectuses, as the case may be; and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectuses or the
Prospectuses shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement
or the issue date of any Preliminary Prospectuses or the Prospectuses, as the
case may be, deemed to be incorporated therein by reference.
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(d) Deloitte & Touche, who certified the financial statements and supporting
schedules included in the Registration Statement and the Prospectuses, are
independent public accountants as required by the Securities Act and the
regulations promulgated thereunder.
(e) The consolidated financial statements included in the Registration
Statement and the Prospectuses present fairly the financial position of the
Company and each corporation of which the Company owns or will own as of the
Closing Date 50% or more of the outstanding equity securities (individually a
"Subsidiary" and collectively the "Subsidiaries") as of the dates indicated and
the results of their operations for the periods specified; except as otherwise
stated therein, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; and the
supporting schedules included in the Registration Statement present fairly the
information required to be stated therein.
(f) Since the respective dates as of which information is given in the
Registration Statement and the Prospectuses, except as otherwise stated
therein, (i) there has been no material adverse change in the condition
(financial or otherwise) or in the results of operations, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business and (ii)
other than those in the ordinary course of business, no transactions have been
entered into and no liabilities or obligations, direct or contingent, have been
incurred by the Company or any of its Subsidiaries, which are material with
respect to the Company and its Subsidiaries considered as one enterprise.
(g) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and each
Prospectus; and the Company is duly registered, qualified or licensed to
conduct business in each jurisdiction in which its ownership or leasing of
property or conduct of business legally requires such registration,
qualification or licensure, except for such jurisdictions where the failure to
be so registered, qualified or licensed does not have a material adverse effect
on the condition (financial or otherwise) or the results of operations,
business affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise.
(h) As of the Closing Date, the Company had no significant Subsidiaries (as
defined in Regulation S-X promulgated by the Commission). [Rohr Europe], a
corporation and wholly owned subsidiary of the Company ("Rohr
Europe") has been duly incorporated or formed and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and each Prospectus; and Rohr Europe is duly registered, qualified or
licensed to conduct business in each jurisdiction or place in which its
ownership or leasing of property or conduct of business legally requires such
registration, qualification or licensure except for such jurisdictions where
the failure to be so registered, qualified or licensed does not have a material
adverse effect on its condition (financial or otherwise), results of
operations, business affairs or business prospects.
(i) The authorized, issued, reserved and outstanding capital stock of the
Company as of the Closing Date is as set forth in each Prospectus under
"Capitalization," including the footnotes thereto, except for stock issued
pursuant to options and warrants described in the Registration Statement or
pursuant to any employee benefit plan described in the Registration Statement,
in each case occurring subsequent to January 30, 1994 and which are not
material in the aggregate; and the issued and outstanding shares of Common
Stock of the Company have been duly and validly authorized and issued and are
fully paid and nonassessable; there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable for, any
shares of capital stock or other equity interests of the Company, except for
the Convertible Subordinated Notes and as may be set forth in the Prospectuses.
As of the Closing Date, all of the outstanding capital stock or other
securities evidencing equity ownership of the Subsidiaries will have been duly
and validly authorized and issued and will be fully paid and nonassessable, and
will be owned, directly or indirectly, by the Company, free and clear of any
security interest, claim, lien or encumbrance; there are no outstanding rights,
warrants or options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in any Subsidiary.
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(j) To the best of their knowledge, neither the Company nor Rohr Europe is
engaged in any unfair labor practice which would have a material adverse effect
on the Company and its Subsidiaries considered as one enterprise. Except for
matters which are not material in the aggregate to the Company and its
Subsidiaries, (i) there is (A) no unfair labor practice complaint pending or,
to the best of their knowledge, threatened against the Company or Rohr Europe
before the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under collective bargaining agreements is pending
or, to the best of their knowledge, threatened, and (B) no strike, slowdown or
stoppage pending or, to the best knowledge of the Company or Rohr Europe after
due inquiry, threatened against the Company or Rohr Europe and (ii) there has
been no violation of any provisions of the Employee Retirement Income Security
Act of 1974 ("ERISA") or the rules and regulations promulgated thereunder.
(k) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, which has been served upon
the Company or Rohr Europe and is now pending, or, to the best knowledge of the
Company or Rohr Europe, threatened, against the Company or Rohr Europe, or to
which the Company or Rohr Europe or any of their properties is subject which is
required to be disclosed in the Registration Statement and the Prospectuses
(other than as disclosed therein), or which could prohibit or limit in any way
the consummation of any of the transactions contemplated by this Agreement, the
Indentures or the Securities; all pending legal or governmental proceedings to
which the Company or Rohr Europe is a party or of which any of their property
is the subject which are not described in the Registration Statement and the
Prospectuses, including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material; and there are no contracts or
other documents of the Company or Rohr Europe which are required to be filed as
exhibits to the Registration Statement by the Securities Act or by the
regulations promulgated thereunder which have not been so filed.
(l) The Common Stock issuable upon conversion of the Convertible Subordinated
Notes has been duly authorized and reserved by the Company and, when issued
upon conversion of the Convertible Subordinated Notes, will be validly issued,
fully paid and nonassessable and will conform to the description thereof in the
applicable Prospectus. The Common Stock issuable upon conversion of the
Convertible Subordinated Notes (upon issuance) will be free of preemptive and
similar rights.
(m) No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory authority or agency or body having jurisdiction over
the Company or Rohr Europe or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement, the
Indentures, the Securities and the consummation of the transactions
contemplated hereby and thereby, including the issuance, sale and delivery of
the Securities, except (i) the registration under the Securities Act or the
regulations promulgated thereunder of the Securities, (ii) the qualification of
the Indentures under the TIA, (iii) such consents, approvals, authorizations,
orders, registrations, filings, qualifications, licenses and permits as may be
required under state securities, Blue Sky or real estate syndication laws or
gaming laws which have been obtained or made to the extent required as of the
date hereof, and (iv) such consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses or permits as have already
been obtained or made.
(n) The Company and Rohr Europe have good and valid title to or valid and
enforceable leasehold interests in all real property, and all material personal
property owned or leased by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Registration
Statement and the Prospectuses or such as do not materially affect the
aggregate value of such property taken as a whole and do not interfere with the
use made and proposed to be made of such property and interests by the Company
or Rohr Europe, and no consent need be obtained under such leases, except as
disclosed in the Prospectuses. The Company and its Subsidiaries are in
compliance in all material respects with the terms and conditions of such
leases, and such leases are in full force and effect. Except for such assets
and facilities as are immaterial in the aggregate to the business of the
Company and its Subsidiaries, all tangible assets and facilities of the Company
and its Subsidiaries are adequate, in the reasonable opinion of the Company,
for the uses to which they are being put or are expected to be put in the
ordinary course of business.
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(o) The Company and Rohr Europe have all governmental licenses, certificates,
permits, authorizations, approvals, franchises or other rights necessary to
carry on their business as such business is presently conducted by them except
as otherwise set forth in the Prospectuses and except as would, in the
aggregate, not have a material adverse effect upon the condition (financial or
otherwise) or the results of operations, business affairs, or business
prospects of the Company and its Subsidiaries considered as a single
enterprise. Neither the Company nor Rohr Europe has any reason to believe that
any governmental body or agency is considering limiting, suspending or revoking
any such license, certificate, permit, authorization, approval, franchise or
right in any material respect. Neither the Company nor Rohr Europe has any
reason to believe that any such license, permit or approval necessary in the
future to conduct the business of the Company and its Subsidiaries as described
in the Prospectuses will not be granted upon application, or that any other
governmental agencies are investigating the Company or Rohr Europe other than
in ordinary course administrative reviews, an ordinary course review of the
transactions contemplated hereby or as otherwise set forth in the Prospectuses.
(p) The Company and Rohr Europe are in compliance with, and conduct their
business in conformity with, all applicable state, federal, local and foreign
laws and regulations, except to the extent that any failure so to comply or
conform would not have a material adverse effect upon the condition (financial
or otherwise) or the results of operations, business affairs or business
prospects of the Company and its Subsidiaries, considered as one enterprise.
(q) To the best knowledge of the Company, the Company has obtained all
permits, licenses and other authorizations that are required under all laws of
the United States and of any state in which the Company is incorporated, owns
or leases real property or conducts business, or under any regulation, plan,
order, decree, judgment, injunction, notice or demand letter thereunder,
relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants or hazardous substances or wastes into the
environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, or hazardous substances or wastes (collectively, the
"Environmental Laws"), except as otherwise set forth in the Prospectuses or to
the extent failure to have any such permit, license or authorization,
individually or in the aggregate, does not have a material adverse effect on
the condition (financial or otherwise) or the earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise. Except as described in the Prospectuses, each of the Company and
its Subsidiaries is in compliance with all terms and conditions of any required
permits, licenses and authorizations, and with the provisions of the
Environmental Laws, except to the extent failure to comply would not have a
material adverse effect on the condition (financial or otherwise) or the
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise.
(r) To the best knowledge of the Company, except as disclosed in the
Registration Statement, there are no past or present events, conditions,
circumstances, activities, practices, incidents, actions, or plans relating to
the business as presently being conducted by the Company or its Subsidiaries
that prevent compliance or continued compliance with the Environmental Laws, or
would be reasonably likely to form the basis of any claim, suit, proceeding,
liability, notice of violation, remediation or cleanup based on or related to
the generation, manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling, or the emission, discharge, release into the
work-place, the community or the environment of any pollutant, contaminant or
hazardous substance or waste, except as will not individually or in the
aggregate have a material adverse effect on the Company and its Subsidiaries,
considered as one enterprise.
(s) Neither the Company nor Rohr Europe is in violation of its Certificate or
Articles of Incorporation or by-laws or in default in any material respect in
the performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument or agreement to which any of them is a party or
by which any of them or their property may be bound, or to which any of their
property or assets is subject, which violations or defaults in the aggregate
would have a material adverse effect on the condition (financial or otherwise)
or on the results of operations, business affairs or business prospects of the
Company and its Subsidiaries, considered as one
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enterprise; and the execution, delivery and performance of this Agreement and
the Indentures and the issuance and sale of the Securities, and the
consummation of the transactions contemplated hereby and thereby, have been
duly authorized by all necessary corporate action of the Company and will not
conflict with or constitute a breach of, or default under, cause the
acceleration of the maturity of, require the consent of any person pursuant to
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of any of the Company or Rohr Europe pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
or agreement to which any of the Company or Rohr Europe is a party or by which
either of them may be bound, or to which any of the property or assets of any
of the Company or Rohr Europe is subject, nor will such action result in any
violation of the provisions of the Certificate or Articles of Incorporation or
by-laws of either the Company or Rohr Europe or any applicable law or
administrative regulation, or any administrative or court decree, order or
judgment specifically binding upon the Company or Rohr Europe.
(t) This Agreement has been duly executed and delivered by the Company and,
assuming the due execution and delivery by the other parties hereto, is the
legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the enforcement of
creditors' rights generally and that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(u) The Company has full corporate power and authority to enter into, deliver
and perform its obligations under this Agreement, the Indentures, the
Securities and all other documents or certificates required or contemplated
thereby. The Securities have been duly authorized by the Company for issuance
and sale pursuant to this Agreement, and, when issued, authenticated and
delivered pursuant to this Agreement and the Indentures against payment of the
consideration set forth herein, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting enforcement of creditors' rights generally and that
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought; and would be entitled to
the benefits provided by the applicable Indenture; the Indentures have been
duly authorized and, at the Closing Time, will be duly qualified under the TIA
and, assuming due execution and delivery by the applicable Trustee, when
executed and delivered by the Company will constitute valid and legally binding
agreements of the Company, enforceable in accordance with their respective
terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting enforcement of creditors' rights generally and that
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought; and the Securities and the
Indentures conform to the descriptions thereof in the Prospectuses.
(v) Neither the Company nor Rohr Europe is, or, following the issuance of the
Securities, will become, an "investment company," or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
(w) All tax returns required to be filed by the Company or Rohr Europe in any
jurisdiction have been filed, other than those filings being contested in good
faith, and all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due or claimed to be due from
such entities have been paid, other than those being contested in good faith
and for which adequate reserves have been provided or those currently payable
without penalty or interest.
(x) The Company and Rohr Europe maintain insurance covering their properties,
operations, personnel and businesses. Such insurance insures against such
losses and risks to an extent which is adequate in accordance with customary
industry practice to protect the Company and Rohr Europe and their businesses.
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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 the Underwriter, and the Underwriter agrees to purchase from the
Company, at a purchase price of % of the principal amount thereof, 100%
of the aggregate principal amount of the Senior Notes and the Convertible
Subordinated Notes.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the Underwriter to purchase up to $7,500,000 aggregate principal
amount of Option Notes at the same purchase price per share as the Underwriter
shall pay for the Convertible Subordinated Notes. Said option may be exercised
only to cover over-allotments in the sale of the Convertible Subordinated Notes
by the Underwriter. Said option may be exercised in whole or in part at any
time (but not more than once) on or before the 30th day after the date of the
Prospectuses upon written or telegraphic notice by the Underwriter to the
Company setting forth the aggregate principal amount of the Option Notes as to
which the Underwriter is exercising the option on the settlement date. Delivery
of certificates representing such Option Notes, and payment therefor, shall be
made as provided in Section 3 hereof.
3. Delivery and Payment. Delivery of and payment for the Senior Notes and the
Convertible Subordinated Notes shall be made at 10:00 a.m., New York City time,
on , 1994, which date and time may be varied by agreement among the
Underwriter and the Company (such date and time of delivery and payment being
herein called the "Closing Date"). The Underwriter will make payment for the
Senior Notes and Convertible Subordinated Notes to be sold hereunder by a
certified or official bank check or checks, drawn on or by a New York or Los
Angeles Clearing House Bank and payable in next day funds, to the order of the
Company against delivery of the Senior Notes and the Convertible Subordinated
Notes for the account of the Underwriter provided, however, that upon written
request of the Company delivered to the Underwriter not less than two business
days prior to the Closing Date, such payment shall be made in immediately
available funds, and the Company shall reimburse the Underwriter for its cost
in obtaining such immediately available funds. Delivery of the Senior Notes and
the Convertible Subordinated Notes shall be made at such location as the
Underwriter shall reasonably designate at least one business day in advance of
the Closing Date, and payment for the Senior Notes and the Convertible
Subordinated Notes shall be made at the offices of Latham & Watkins, New York,
New York, on the Closing Date. Certificates for the Senior Notes and the
Convertible Subordinated Notes shall be registered in such names and in such
denominations as the Underwriter may request not less than two full business
days in advance of the Closing Date.
Delivery to the Underwriter of and payment for any Option Notes to be
purchased by the Underwriter shall be made at the aforementioned office of
Latham & Watkins at such time a date (the "Option Closing Date") which may be
the same as the Closing Date but shall in no event be earlier than the Closing
Date nor later than ten business days after the giving of the notice described
above, as shall be specified in such notice. The place of closing for any
Option Notes and the Option Closing Date for such Option Notes may be varied by
agreement between the Underwriter and the Company.
The Company agrees to have the Senior Notes and the Convertible Subordinated
Notes (and the Option Notes, if applicable) available for inspection, checking
and packaging by the Underwriter in New York, New York not later than 1:00 p.m.
on the business day prior to the Closing Date (or the Option Closing Date, as
applicable).
The Company will deliver to the Underwriter on the Option Closing Date, and
the obligation of the Underwriter to purchase the Option Notes shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming, as of such Option Closing Date and with respect to the Option
Notes, the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof.
4. Offering by Underwriter. It is understood that the Underwriter proposes to
offer the Senior Notes and the Convertible Subordinated Notes for sale to the
public as set forth in the Prospectuses.
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5. Agreements. The Company agrees with the Underwriter that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof,
to become effective. Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectuses without the prior consent of the
Underwriter, provided, however, that if the Company shall be advised by counsel
that the filing of such amendment or supplement is required under the
Securities Act or other applicable law, the Company may file such amendment or
supplement after giving notice to the Underwriter and allowing the Underwriter
a reasonable opportunity to comment thereon. Subject to the foregoing sentence,
if the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectuses is otherwise required under Rule 424(b),
the Company will cause the Prospectuses, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Underwriter of such timely filing. The Company will
promptly advise the Underwriter (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Prospectuses, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the Securities, any amendment of
the Registration Statement shall have been filed or become effective, (iv) of
any request by the Commission for any amendment of the Registration Statement
or supplement to the Prospectuses or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose, and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will make every reasonable effort to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is required
to be delivered under the Securities Act, any event known to the Company occurs
as a result of which the Prospectuses as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Prospectuses to comply with
the Securities Act or the rules or regulations thereunder, the Company promptly
will prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will correct
such statement or omission or which will effect such compliance.
(c) The Company will make generally available to its security holders and to
the Underwriter a consolidated earnings statement or statements of the Company
and its Subsidiaries, covering a twelve-month period commencing after the
effective date of the Registration Statement and ending not later than 15
months thereafter, as soon as practicable after the end of such period, which
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 under the Securities Act.
(d) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, as many signed copies of the Registration
Statement as originally filed and of each amendment thereof (including exhibits
filed therewith) as the Underwriter may reasonably request and to the
Underwriter a conformed copy of the Registration Statement as originally filed
and of each amendment thereof (without exhibits thereto) and, so long as
delivery of a prospectus by the Underwriter or dealer may be required by the
Securities Act, as many copies of each Preliminary Prospectus and the
Prospectuses and any supplement thereto as the Underwriter may reasonably
request. The Company will pay the expenses of printing or other production of
all documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities for sale
under the laws of such jurisdictions as the Underwriter may designate and will
maintain such qualifications in effect so long as required for the distribution
of the Securities provided, however, that the Company shall not be required to
8
qualify as a foreign corporation or consent to service of process in any
jurisdiction in which such qualification or consent is not otherwise required,
and will arrange for the determination of the legality of the Securities for
purchase by institutional investors and will pay the fee of the National
Association of Securities Dealers, Inc. in connection with its review of the
offering.
(f) The Company will fully comply with the applicable provisions of Rules 424
and 430A under the Securities Act in a timely manner.
(g) The Company will cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. and in the
performance of any due diligence investigation by any broker-dealer
participating in the sale of the Securities.
(h) The Company waives, to the extent permitted by law, the use of any usury
laws against any holder of Securities.
(i) The Company, during the period when the Prospectuses are required to be
delivered under the Act, will file promptly all documents required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act,
subsequent to the time the Registration Statement becomes effective.
(j) The Company will apply the proceeds from the issuance and sale of the
Securities as set forth in the Prospectuses under the heading "Use of
Proceeds."
(k) The Company confirms as of the date hereof that it is in compliance with
all provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating
to Disclosure of Doing Business with Cuba, and the Company further agrees that
if it commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration Statement
becomes or has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the Prospectuses, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will provide
the Department notice of such business or change, as may be required, in a form
acceptable to the Department.
(l) The Company will reserve, from time to time, a sufficient number of
shares of Common Stock to permit the issuance of shares of Common Stock upon
the conversion of all of the outstanding Convertible Subordinated Notes by the
holders thereof.
(m) The Company will use all reasonable efforts to cause the Common Stock
issuable upon conversion of the Convertible Subordinated Notes to be listed on
the New York Stock Exchange.
(n) The Company will use all reasonable efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or after
the Closing Date and to satisfy all conditions precedent on its part to the
delivery of the Securities.
6. Conditions to the Obligations of the Underwriter. The obligations of the
Underwriter to purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as
of the Execution Time and the Closing Date, or the Option Closing Date, as
applicable, to the accuracy of the statements of the Company made in any
certificates delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Underwriter agrees in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 p.m. New
York City time on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 p.m. New York City time on such
date or (ii) 12:00 noon New
9
York City time on the business day following the day on which the public
offering price was determined, if such determination occurred after 3:00 p.m.
New York City time on such date; if filing of the Prospectuses, or any
supplement thereto, is required pursuant to Rule 424(b), the Prospectuses, and
any such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Underwriter the opinion of
Gibson, Dunn & Crutcher as counsel for the Company, and the Opinion of Richard
W. Madsen, general counsel to the Company in each case, dated the Closing Date,
in form and substance satisfactory to the Underwriter, and substantially in the
form of Exhibits B and C, respectively, hereto.
In rendering such opinions, such counsel may rely (A) as to matters involving
the application of another state's law, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for the
Underwriter and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. In
addition, Gibson, Dunn & Crutcher may rely as to certain matters upon the
opinion of Richard W. Madsen, general counsel to the Company.
(c) The Underwriter shall have received from Latham & Watkins, counsel for
the Underwriter, such opinion or opinions, dated the Closing Date, with respect
to the issuance and sale of the Securities, the Indentures, the Registration
Statement, the Prospectuses (together with any supplement thereto) and other
related matters as the Underwriter may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriter a certificate of the
Company, signed by the Chairman of the Board, the President or a Vice President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectuses, any supplement to the
Prospectuses and this Agreement and that to the best of their knowledge:
(i) the representations and warranties of the Company in this Agreement
are true and correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in
the Prospectuses (exclusive of any supplement thereto), (A) there has been
no material change in the capital stock or long-term debt of the Company
except as set forth in or contemplated in the Prospectuses and (B) there
has been no material adverse change in the condition (financial or
otherwise), results of operations, business or properties of the Company
and its Subsidiaries, considered as one enterprise, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(e) At the Execution Time and at the Closing Date, Deloitte & Touche shall
have furnished to the Underwriter a letter or letters, dated respectively as of
the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Underwriter, confirming that they are independent
accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included in the Registration Statement and the
Prospectuses and reported on by them comply in form in all material
10
respects with the applicable accounting requirements of the Securities Act
and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its Subsidiaries; their
limited review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited interim
financial information for the six-month period ended January 30, 1994, and
as at January 30, 1994; carrying out certain specified procedures (but not
an examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect to
the comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders and directors of each of the Company and its
Subsidiaries; and inquiries of certain officials of the Company and its
Subsidiaries who have responsibility for financial and accounting matters
of the Company or its Subsidiaries as to transactions and events subsequent
to January 30, 1994, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included in the Registration
Statement and the Prospectuses do not comply in form in all material
respects with applicable accounting requirements of the Securities Act
and with the published rules and regulations of the Commission with
respect to registration statements on Form S-3; and said unaudited
financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited financial statements included in the Registration
Statement and the Prospectuses; or
(2) with respect to the period subsequent to January 30, 1994, there
were any changes, at a specified date not more than five business days
prior to the date of the letter, in the long-term debt of the Company
or its Subsidiaries or capital stock of each of the Company or its
Subsidiaries or decreases in the stockholders' equity of any of the
Company or its Subsidiaries, in each case as compared with the amounts
shown on the January 30, 1994 consolidated balance sheet included in
the Registration Statement and the Prospectuses, or for the period from
January 31, 1994 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year, in net
operating revenues, operating income or net income before income taxes
or in total or per share amounts of net income of each of the Company
or its Subsidiaries, except in all instances for changes or decreases
set forth in such letter or changes or decreases that the Registration
Statement discloses have occurred or may occur, in which case the
letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by
the Underwriter; and
(iii) they have performed certain other specified procedures as a result
of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company and its Subsidiaries) set forth in the Registration Statement
and the Prospectuses (or in any documents incorporated by reference
therein), including the information set forth under the captions
"Consolidated Capitalization," "Summary Consolidated Financial Data" and
"Selected Consolidated Financial Data" in the Prospectuses, agrees with the
accounting records of the Company and its Subsidiaries, excluding any
questions of legal interpretation.
References to the Prospectuses in this paragraph (e) include any supplement
thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Prospectuses (exclusive of any supplement thereto), there
shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (f) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the business or
properties of the Company and its Subsidiaries taken as a single
11
enterprise the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the judgment of the Underwriter, so material and adverse as to
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectuses (exclusive of any
supplement thereto).
(g) The Company shall have obtained and provided to the Underwriter, in form
and substance satisfactory to the Underwriter and its counsel, certain
amendments, supplements or modifications to certain of the Company's credit
facilities and other borrowing agreements currently in place that shall, among
other things, sufficiently broaden certain restrictive financial covenants
contained therein.
(h) Prior to the Closing Date, the Company shall have furnished to the
Underwriter such further information, certificates and documents as the
Underwriter may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and its counsel, this Agreement and all
obligations of the Underwriter hereunder may be canceled at, or at any time
prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriter's Expenses.
(a) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company will pay, or reimburse
if paid by or on behalf of the Underwriter, all costs and expenses incident to
the performance of the obligations of the Company hereunder, including those in
connection with: (i) preparing, printing, duplicating, filing and distributing
the Registration Statement as originally filed and all amendments thereto
(including all exhibits thereto), any Preliminary Prospectuses, the
Prospectuses and any amendments thereof or supplements thereto, the Indentures,
any dealer agreements and the underwriting documents (including this Agreement
and all other documents related to the public offering of the Securities,
including those supplied to the Underwriter in quantities as hereinabove
stated); (ii) the issuance, transfer and delivery of the Securities to the
Underwriter, including any transfer or other taxes payable thereon; (iii) the
qualification of the Securities under state and foreign securities or Blue Sky
laws and the eligibility of the Securities for investment under state and
foreign law, including the costs of printing and mailing a preliminary and
final "Blue Sky Survey" and a "Legal Investment Memorandum" and the reasonable
fees and disbursements of Underwriter's counsel in connection therewith; (iv)
the review of the terms of the public offering of the Securities by the
National Association of Securities Dealers, Inc.; and (v) the fees and expenses
of the Trustees and any agent of the Trustees and the fees and disbursements of
counsel for the Trustee in connection with the Indentures and the Securities.
(b) If the sale of the Senior Notes and the Convertible Subordinated Notes
provided for herein is not consummated because any condition to the obligations
of the Underwriter set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by the
Underwriter, the Company will reimburse the Underwriter upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by the Underwriter in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless the
Underwriter, the directors, officers, employees and agents of the Underwriter,
and each person who controls the Underwriter within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses,
12
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereto, or in any
Preliminary Prospectus or any Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter specifically for
inclusion therein, and provided further that the indemnity agreement contained
in this subsection (a) with respect to any Preliminary Prospectus or amended
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, expense, liability or claim purchased
the Security which is the subject thereof (or to the benefit of any person
controlling such Underwriter), if the Prospectus corrected any such alleged
untrue statement or omission and if such person was not given a copy of the
Prospectus or prior to the written confirmation of the sale of such Security to
such person and the Company has previously made available copies of the
Prospectus to such Underwriter. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify, defend and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, each person who controls the Company within the meaning of either
the Securities Act or the Exchange Act, and their agents, to the same extent as
the foregoing indemnity from the Company to the Underwriter, but only with
reference to written information relating to the Underwriter furnished to the
Company by or on behalf of the Underwriter specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which the Underwriter may otherwise have. The
Company and the Underwriter acknowledge that the statements set forth (i) in
the last paragraph of the cover page and (ii) the information under the heading
"Underwriting," relating to the amount of Securities sold to the Underwriter,
the Underwriter's concession and the dealers' reallowance, in any Preliminary
Prospectus and any Prospectus constitute the only information furnished in
writing by or on behalf of the Underwriter for inclusion in any Preliminary
Prospectus or any Prospectus, and the Underwriter confirms that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified parties
collectively shall have the right to employ one separate counsel (in addition
to local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel, if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present such
counsel with an actual conflict of interest, (ii) the actual defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there are legal defenses available to it and/or other indemnified parties
which
13
are different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party in writing to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriter agrees to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) (collectively, "Losses") to which the Company and the Underwriter may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and by the Underwriter from the offering of the
Securities; provided, however, that in no case shall the Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by the
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable, the Company and the Underwriter shall contribute in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and of the Underwriter in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses), and
benefits received by the Underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectuses. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriter. The Company and the Underwriter
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Underwriter within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of the Underwriter
shall have the same rights to contribution as the Underwriter, and each person
who controls the Company within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriter, by written notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (a)
trading in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers Automated Quotation National Market System
shall have been suspended or limited or minimum prices shall have been
established on either of such Exchange or Market System, (b) a banking
moratorium shall have been declared either by federal or New York State
authorities, (c) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Underwriter, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectuses (exclusive of any supplement thereto) or (d) any securities of the
Company shall have been downgraded or placed on any "watch list" for possible
downgrading by any
14
nationally recognized statistical rating organization, PROVIDED, that in the
case of such "watch list" placement, termination shall be permitted only if
such placement would, in the judgment of the Underwriter, make it impracticable
or inadvisable to market the Securities or to enforce contracts for the sale of
the Securities or materially impair the investment quality of the Securities.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities, certificates and other statements of
the Company or its officers and of the Underwriter set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder are required to be in writing and
effective only on receipt and, if sent to the Underwriter, will be mailed,
delivered, telegraphed or telecopied and confirmed to Salomon Brothers Inc at
Seven World Trade Center, New York, New York, 10048, Attention: Legal
Department; or, if sent to the Company, will be mailed, delivered, telegraphed
or telecopied and confirmed to it at 850 Lagoon Drive, Chula Vista, California
91910, Attention: General Counsel.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
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 between the
Company and the Underwriter.
Very truly yours,
ROHR, INC.
By:
------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
By:
------------------------------
15
EXHIBIT A
OPINION OF
GIBSON, DUNN & CRUTCHER
COUNSEL FOR THE COMPANY
The opinion of Gibson, Dunn & Crutcher, which is called for by Section 6(c) of
the Underwriting Agreement (the "Opinion"), shall be dated the Closing Date and
addressed to the Underwriter. All terms used herein without definition shall
have the meanings assigned to such terms in the Underwriting Agreement. The
Opinion shall be substantially to the effect that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its properties and to conduct its
business as described in the Registration Statement and the Prospectuses.
2. The Company is duly qualified or licensed to conduct business and is
in good standing in each jurisdiction in which it owns or leases material
property or in which the character of its business makes such qualification
or license necessary, except where the failure so to qualify or be licensed
would not have a material adverse effect on the business or financial
condition of the Company and its Subsidiaries, taken as a whole.
3. The Company has corporate power and authority to execute, deliver and
perform its obligations under this Agreement, the Indentures, the Senior
Notes and the Convertible Subordinated Notes. This Agreement, the
Indentures, the Senior Notes and the Convertible Subordinated Notes have
been duly authorized, executed and delivered by the Company.
4. The Indentures constitute legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms, except to the extent that (A) such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
and court decisions of general application now or hereafter in effect
relating to or affecting the rights of creditors generally, including
without limitation, statutory or other laws regarding fraudulent or
preferential transfer, (B) such enforceability may be limited by equitable
principles (whether considered in an action at law or in equity) which
provide, among other things, that the remedies of specific performance and
injunctive and other forms of equitable relief are subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought and (C) rights to indemnity and contribution
thereunder may be limited by federal or state securities laws or the
policies underlying such laws, and except as to any provisions thereof
which involve a purported waiver of rights or defenses, as to which such
counsel may express no opinion.
5. The Company has authorized capitalization as set forth in the
Registration Statement. To the best of such counsel's knowledge, except as
set forth in the Registration Statement, (i) there are no outstanding
subscriptions, warrants, options, calls or commitments of any character
relating to or entitling any person to purchase or otherwise acquire any
shares of the capital stock of the Company, and (ii) there are no
obligations or securities convertible into or exchangeable for shares of
any capital stock of the Company or any commitments of any character
relating to or entitling any person to purchase or otherwise acquire any
such obligations or securities.
6. The holders of outstanding capital stock of the Company are not
entitled to preemptive rights or, to the best of such counsel's knowledge,
similar rights to subscribe for or to purchase any capital stock of the
Company.
7. To the best of such counsel's knowledge, all of the outstanding
capital stock or other securities evidencing equity ownership of the
Subsidiaries have been duly and validly authorized and are fully paid and
nonassessable, are owned of record and beneficially by the Company, either
directly or indirectly through wholly owned subsidiaries of the Company,
free and clear of any security interest, claim, lien or encumbrance; and
there are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest in any Subsidiary.
8. The Senior Notes, the Convertible Subordinated Notes and the
Indentures conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectuses.
9. The Registration Statement has become effective under the Securities
Act; any filing of the Prospectuses, and any supplements thereto, required
pursuant to Rule 424(b)(1) has been made in the manner and within the time
period required by Rule 424(b); and, to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or
threatened.
10. The Registration Statement and each Prospectus (except as to the
financial statements and schedules and other financial and statistical data
contained or incorporated by reference therein and the Trustee's statements
of eligibility and qualification of Form T-1, as to which such counsel need
not express an opinion) comply as to form in all material respects with the
Securities Act and the Trust Indenture Act and the rules thereunder.
11. The Indentures have been duly qualified under the Trust Indenture
Act.
12. No consent, approval, authorization or order of, or registration or
filing with, any court or governmental agency or body is required in
connection with the execution, delivery and performance by the Company of
this Agreement, the Indentures, the Senior Notes and the Convertible
Subordinated Notes, or in connection with the offer, sale, delivery and
compliance with the terms of the Senior Notes and the Convertible
Subordinated Notes, except (A) the registration under the Securities Act of
the Senior Notes and the Convertible Subordinated Notes, (B) the
qualification of the Indentures under the Trust Indenture Act, (C) such
consents, approvals, authorizations, orders, registrations or filings as
may be required under state securities, Blue Sky or real estate syndication
laws, and (D) such other consents, approvals, authorizations, orders,
registrations or filings as have been obtained or made.
13. The Company is not in violation of its Certificate of Incorporation
or Bylaws and to the best of such counsel's knowledge is not in default in
the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
indenture or other financing agreement of the Company, where such default
could have a material adverse effect on the Company and its Subsidiaries,
taken as a whole.
14. The execution, delivery and performance of this Agreement, the
Indentures, the Senior Notes and the Convertible Subordinated Notes, the
fulfillment of the terms therein set forth and the consummation of the
transactions therein contemplated, including the issuance, sale and
delivery of the Senior Notes and the Convertible Subordinated Notes, will
not violate or conflict with, result in a breach of or constitute a default
under the Certificate of Incorporation or Bylaws of the Company or the
terms of any indenture or other material agreement or instrument known to
such counsel, including without limitation this Agreement, the Indentures,
the Senior Notes and the Convertible Subordinated Notes, to which the
Company is a party or by which it is bound.
15. To the best knowledge of such counsel, (i) there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator against or involving the
Company of a character required to be disclosed in the Registration
Statement or the Prospectuses which is not disclosed therein, and (ii)
there is no contract, license, agreement or other document of the Company
of a character required to be described in the Registration Statement or
the Prospectuses, or to be filed as an exhibit to the Registration
Statement, which is not so described or filed.
16. The Company is not, nor will be upon the issuance and sale of the
Senior Notes and the Convertible Subordinated Notes and the fulfillment of
the terms of this Agreement, subject to regulation under the Investment
Company Act of 1940, as amended.
17. To the best of such counsel's knowledge, no holder of securities of
the Company has unwaived rights to the registration of such securities
pursuant to the Registration Statement.
18. The Senior Notes and the Convertible Subordinated Notes, when
executed and authenticated in accordance with the respective Indenture and
delivered to and paid for by the Underwriter in accordance
2
with this Agreement, will be the legal, valid and binding obligations of
the Company, entitled to the benefits provided by the Indentures and
enforceable in accordance with their terms, except to the extent that (A)
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws or court decisions of
general application now or hereafter in effect relating to or affecting the
rights of creditors generally, including without limitation, statutory or
other laws regarding fraudulent or preferential transfers, (B) such
enforceability may be limited by equitable principles (whether considered
in an action at law or in equity) which provide, among other things, that
the remedies of specific performance and injunctive and other forms of
equitable relief are subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought and (C)
rights to indemnity and contribution thereunder may be limited by federal
or state securities laws or the policies underlying such laws, and except
as to any provisions thereof which involve a purported waiver of rights or
defenses, as to which such counsel may express no opinion.
19. The statements set forth in the Prospectus relating to the
Convertible Subordinated Notes under the headings "Description of Capital
Stock" and "Certain Federal Income Tax Consequences," insofar as such
statements constitute a summary of the documents, laws or proceedings
referred to therein, fairly present the information called for with respect
to such documents, laws and proceedings.
20. The indebtedness represented by the Senior Notes and the Convertible
Subordinated Notes is not usurious under the laws of (or is exempt from the
usury laws of) the United States and the states of California and New York.
We are not passing upon, do not assume any responsibility for and have not
independently verified the accuracy, completeness or fairness of the financial
statements, notes thereto, supporting schedules and other financial and
statistical data included in the Registration Statement or the Prospectuses or
with respect to the Form T-1, and we have not examined the accounting,
financial or statistical records from which such financial statements, notes,
schedules and data are derived. We note that, while certain portions of the
Registration Statement and the Form T-1 (including financial statements, notes
thereto, supporting schedules and other financial and statistical data) have
been included therein on the authority of "experts" within the meaning of the
Act, we are not such experts with respect to any portion of the Registration
Statement or the Form T-1, including without limitation such financial
statements, notes, schedules or other financial or statistical data included
therein. Subject to the foregoing, we note that we have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and your
representatives, at which conferences the contents of the Registration
Statement and the Prospectuses and related matters were discussed and, although
we are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and each Prospectus and have not made any independent
check or verification thereof, during the course of such participation (relying
as to the factual matters underlying the determination of materiality to a
large extent upon the statements of officers and other representatives of the
Company), no facts came to our attention that caused us to believe that the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
(other than information omitted therefrom in reliance on Rule 430A under the
Act), or that the Prospectuses, as of their date or the date hereof, 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 under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the States of
California, Delaware and New York or the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriter, (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Company and public officials and
(C) as to the opinions given in paragraphs 2, 7, 13, 15 and 17 on the opinion
of Richard W. Madsen, general counsel to the Company. References to the
Prospectuses in this paragraph (b) include any supplements thereto at the
Closing Date.
3
EXHIBIT B
OPINION OF
RICHARD W. MADSEN
GENERAL COUNSEL FOR THE COMPANY
The opinion of Richard W. Madsen, general counsel for the Company, which is
called for by Section 6(c) of the Underwriting Agreement (the "Opinion"), shall
be dated the Closing Date and addressed to the Underwriter. All terms used
herein without definition shall have the meanings assigned to such terms in the
Underwriting Agreement. The Opinion shall be substantially to the effect that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its properties and to conduct its
business as described in the Registration Statement and the Prospectuses.
2. The Company is duly qualified or licensed to conduct business and is
in good standing in each jurisdiction in which it owns or leases material
property or in which the character of its business makes such qualification
or license necessary, except where the failure so to qualify or be licensed
would not have a material adverse effect on the business or financial
condition of the Company and its Subsidiaries, taken as a whole.
3. To the best of such counsel's knowledge, all of the outstanding
capital stock of the Company has been duly and validly authorized and
issued and is fully paid and nonassessable. All of the outstanding capital
stock or other securities evidencing equity ownership of the Subsidiaries
have been duly and validly authorized and are fully paid and nonassessable,
are owned of record and beneficially by the Company, either directly or
indirectly through wholly owned subsidiaries of the Company, and, to the
best of such counsel's knowledge, is free and clear of any security
interest, claim, lien or encumbrance; to the best of such counsel's
knowledge, except as disclosed in the Registration Statement, there are no
outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other
equity interest in any Subsidiary.
4. The Company is not in violation of its Certificate of Incorporation or
Bylaws and to the best of such counsel's knowledge is not in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
indenture or other financing agreement of the Company, where such default
could have a material adverse effect on the Company and its Subsidiaries,
taken as a whole.
5. To the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator against or involving the
Company of a character required to be disclosed in the Registration
Statement or the Prospectuses which is not disclosed therein, or which are,
singly and in the aggregate with all other such actions, material to the
Company and its Subsidiaries considered as one enterprise.
6. The Company is not, nor will be upon the issuance and sale of the
Senior Notes and the Convertible Subordinated Notes and the fulfillment of
the terms of this Agreement, subject to regulation under the Investment
Company Act of 1940, as amended.
7. To the best of such counsel's knowledge, no holder of securities of
the Company has unwaived rights to the registration of such securities
pursuant to the Registration Statement.
8. The statements set forth in the Prospectuses under the headings
"Business --Contracts" and "Legal and Environmental Proceedings," insofar
as such statements constitute a summary of the documents, laws or
proceedings referred to therein, fairly present the information called for
with respect to such documents, laws and proceedings.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the States of California
and Delaware and the United States, to the extent he deems proper and specified
in such opinion, upon the opinion of other counsel of good standing whom he
believes to be reliable and who are satisfactory to counsel for the Underwriter
and (B) as to matters of fact, to the extent he deems proper, on certificates
of responsible officers of the Company and public officials. References to the
Prospectuses in this paragraph (b) include any supplements thereto at the
Closing Date.