AOL TIME WARNER INC.
Underwriting Agreement
[ ] Shares
[Preferred Stock]
[Series Common Stock]
[Common Stock]
[Date]
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
AOL Time Warner Inc., a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, [ ] shares of [Preferred Stock, $0.10 par value (the "Preferred
Stock"), [ ] shares of Series Common Stock, $0.01 par value (the "Series Common
Stock"), and [ ] shares of Common Stock, $0.01 par value (the "Common Stock")]
of the Company (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to purchase up to [ ] additional shares of
Stock to cover over-allotments (the "Option Securities"; the Option Securities,
together with the Underwritten Securities, being hereinafter called the
"Securities"). If the firm or firms listed in Schedule II hereto include only
the firm or
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firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (p)
hereof.
(a) If the offering of the Securities is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended (the
"Act"), and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the
file number of which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has
previously been furnished to you. Such registration statement,
as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act
and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included
therein as of the Effective Date. The Company will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5)
a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent
the Representatives shall agree in writing to a modification,
shall be in all 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 Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the use
of Form S-3 under the Act and has filed with the Commission a
registration
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statement (the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will
next file with the Commission either (x) a final prospectus
supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4), or (y) prior to the effectiveness
of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Company has
included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to
be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a
modification, shall be in all 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 Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply
in all material respects with the applicable requirements of the Act,
the Securities Exchange Act of 1934 as amended (the "Exchange Act"),
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; and, on the Effective Date, the Final Prospectus, 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 Final
Prospectus (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
the information
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contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto).
(c) The Company is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority under such laws to
own its properties and conduct its business as described in the Basic
Prospectus, and any amendment or supplement thereto, and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified to transact business as a foreign corporation and is in
good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make
such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(d) Each of the Company's significant subsidiaries, as such
term is defined in Rule 1-02(w) of Regulation S-X under the Act, is
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with full power and
authority under such laws to own its properties and conduct its
business as described in the Basic Prospectus, and any amendment or
supplement thereto, and is duly qualified to transact business as a
foreign corporation or partnership and is in good standing in each
other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the Company
and its subsidiaries, considered as one enterprise.
(e) The Company's authorized equity capitalization is as set
forth in the Basic Prospectus, and any amendment or supplement thereto;
all of the outstanding capital stock of America Online, Inc. ("America
Online"), Time Warner Inc. ("Time Warner"), Time Warner Companies, Inc.
("TWC") and Turner Broadcasting System, Inc. ("TBS") is owned directly
or indirectly, by the Company, free and clear of all liens,
encumbrances, equities or claims; the shares of the [Preferred Stock,
Series Common Stock or Common Stock, as applicable] outstanding prior
to the issuance of the Underwritten Securities have been duly
authorized and are validly issued, fully paid and non-assessable.
(f) There is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or body
or any arbitrator involving the Company or its subsidiaries of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Basic Prospectus, and any amendment
or supplement thereto, and there is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Basic Prospectus, and any amendment or supplement thereto,
or to be filed as an exhibit, which is not described or filed as
required.
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(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) No consent, approval, authorization or order of any court
or governmental agency or body is required for the authorization,
issuance, sale and delivery of the Securities by the Company or the
consummation of the transactions contemplated by this Agreement or in
any Delayed Delivery Contracts, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained.
(i) The execution and delivery of this Agreement by the
Company, the issuance, sale and delivery of the Securities by the
Company, and the consummation by the Company, of the transactions
contemplated in this Agreement and the Registration Statement and
compliance by the Company with the terms of this Agreement or any
Delayed Delivery Contracts do not and will not result in any violation
of the Certificate of Incorporation, as amended, or By-laws, as
amended, of any of the Company, America Online Time Warner, TWC or TBS
and do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Company, America Online, Time Warner,
TWC or TBS under (i) any indenture, mortgage or loan agreement, or any
other agreement or instrument, to which any of the Company, America
Online, Time Warner, TWC or TBS is a party or by which it may be
bound or to which any of its properties may be subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise), (ii) any existing applicable law, rule or regulation
(except for such conflicts, breaches, liens, charges or encumbrances
that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business
prospects of any of the Company and its subsidiaries, considered as
one enterprise, and other than the securities or blue sky laws of
various jurisdictions), or (iii) any judgment, order or decree of any
government, governmental instrumentality or court having jurisdiction
over any of the Company, America Online, Time Warner, TWC or TBS or any
of its properties (except for such conflicts, breaches, liens, charges
or encumbrances that would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of any of the Company and its subsidiaries,
considered as one enterprise, and other than the securities or blue
sky laws of various jurisdictions).
(j) The documents incorporated by reference in the Basic
Prospectus, and any amendment or supplement thereto, as of the dates
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act.
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(k) The Securities conform in all material respects to the
description thereof contained in the Basic Prospectus, and any
amendment or supplement thereto; if any of the Securities are to be
listed on any stock exchange, authorization therefor has been given,
subject to official notice of issuance and evidence of satisfactory
distribution, or the Company has no reason to believe that such
Securities will not be authorized for listing, subject to official
notice of issuance and evidence of satisfactory distribution.
(l) The Securities have been duly authorized and, when issued
and delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwritten Securities and the Option
Securities, or by the purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities, will be duly and
validly authorized and issued and are fully paid and nonassessable and
the issuance of the Securities will not be subject to any preemptive or
similar right.
(m) Each Delayed Delivery Contract that has been executed by
the Company has been duly authorized, executed and delivered by the
Company, and, assuming the due authorization, execution and delivery by
the purchaser thereunder, is 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,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and subject as
to enforceability to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
(n) Each firm of independent accountants, which is reporting
upon certain audited or reviewed financial statements and schedules
included or incorporated by reference in the Registration Statement,
are independent auditors with respect to the financial statements
covered by the audit or review of such firm, in accordance with the
provisions of the Exchange Act and the Act and the respective
applicable published rules and regulations thereunder.
(o) The consolidated financial statements and the related
notes of each of the Company, and any other person included or
incorporated by reference in the Registration Statement present fairly,
in accordance with generally accepted accounting principles, the
consolidated financial position of the Company, and any such other
person as of the dates indicated and the consolidated results of
operations of the Company and any such other person and cash flows of
each of the Company and any other such person for the periods
specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as otherwise noted
therein and subject, in the case of interim statements, to normal
year-end audit adjustments. The financial statement schedules included
or
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incorporated by reference in the Registration Statement present fairly
in accordance with generally accepted accounting principles the
information required to be stated therein. Any supplementary summary
financial information or condensed consolidating financial information
included or incorporated in the Registration Statement complies with
all applicable accounting requirements and the applicable rules and
regulations of the Commission. Any pro forma financial information
included or incorporated by reference in the Registration Statement
complies with all applicable accounting requirements and the applicable
rules and regulations of the Commission for such pro forma information.
Such pro forma financial information has been properly compiled on the
pro forma bases described therein, and, in the opinion of the Company,
America Online and Time Warner the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions or circumstances referred to
therein.
(p) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective and each date after
the date hereof on which a document incorporated by reference in the
Registration Statement is filed. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean
any preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the
Basic Prospectus or, if, in the case of a Non-Delayed Offering, no
filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities, including the Basic
Prospectus, 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 415",
"Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the 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. All
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references in this Agreement to the Registration Statement, the Basic
Prospectus, any Preliminary Final 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 Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be; all references in this Agreement to financial statements and
schedules and other information that is "contained", "included" or
"stated" in the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information that are or
are deemed to be incorporated by reference in the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to mean and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that
only information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered. Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
(q) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended
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 purchase price of
$ per share, the amount of the Underwritten Securities set forth opposite
each Underwriter's name in Schedule I hereto, except that, if Schedule I hereto
provides for the sale of the Underwritten Securities
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pursuant to delayed delivery arrangements, the respective amounts of
Underwritten Securities to be purchased by the Underwriters shall be as set
forth in Schedule II hereto less the respective amounts of Contract Securities
determined as provided below.
(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 several Underwriters to purchase, severally and not jointly, up
to [ ] Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. 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 Final Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number
of shares of the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as the Representatives in their absolute discretion shall
make to eliminate any fractional shares.
(c) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase the Underwritten Securities from the
Company pursuant to delayed delivery contracts ("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 Closing Date, the
percentage set forth in Schedule I hereto of the amount of the Underwritten
Securities for which 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 and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum amount set forth in Schedule I hereto and the aggregate amount
of Contract Securities may not exceed the maximum aggregate amount 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 amount of
Underwritten Securities to be purchased by each Underwriter as set forth in
Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total amount of Contract Securities as the amount of
Underwritten Securities set forth opposite the name of such Underwriter bears to
the aggregate amount 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 amount of
Underwritten Securities to be purchased by all Underwriters shall be the
aggregate amount set forth in Schedule II hereto less the aggregate amount of
Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made on the date and at the
time specified in Schedule I hereto, which date and time may be postponed to a
date not later than five business days after such specified date by agreement
between the Representatives, acting jointly and without regard to any agreement
among underwriters, and the Company or as provided in Section 8 hereof (such
date and time of delivery and payment for the Securities being herein called
the "Closing Date"). Delivery of such Securities shall be made to the
Representatives for the respective accounts of the several
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Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in immediately available federal funds (unless
another form of payment is specified in Schedule I hereto).
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, delivery of and payment
for the Option Securities shall be made on such date and at such time (not later
than three Business Days after the giving of the notice hereinafter referred to)
as shall be designated as the settlement date in the written or telegraphic
notice from the Representatives to the Company specified in Section 2(b) hereof
(such date and time of delivery and payment for the Option Securities being
herein called the "Option Closing Date"). Delivery of the Option Securities
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 wire transfer payable in immediately available federal funds.
Delivery of the Underwritten Securities and the Option
Securities, if any, shall be made at such location as the Representatives shall
reasonably designate on the Closing Date or the Option Closing Date, as
applicable, and payment for the Underwritten Securities shall be made at the
office specified in Schedule I hereto. Certificates for the Underwritten
Securities and the Option Securities shall be registered in such names and in
such denominations as the Representatives may request not less than one full
business day in advance of the Closing Date or the Option Closing Date, as
applicable.
The Company agrees to have the Underwritten Securities and the
Option Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on the business
day prior to the Closing Date or the Option Closing Date, as applicable.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment to
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing nor will it file any such proposed amendment or supplement to
which you reasonably object on a timely basis (other than filings of
documents pursuant to Section 13(a) or 14(a) under the Exchange Act).
Subject to the foregoing sentence, the Company will cause the Final
Prospectus, 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 Representatives of such timely filing. The Company
will promptly advise the Representatives (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final Prospectus,
and any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the
offering of each series of Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment to the Registration
Statement or supplement to the Final Prospectus or for any additional
information relating to the offering of the Securities, (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
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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 use its best efforts 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 Act, any event occurs
as a result of which the Final Prospectus 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 Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If and to the extent specified in Schedule I, the Company
will use its reasonable best efforts to cause the Securities to be duly
authorized for listing or trading on a securities exchange or
inter-dealer quotation system and to be registered under the Exchange
Act.
(e) For a period of three years after the Closing Date, upon
request, the Company will furnish to you and to each Underwriter,
copies of all annual reports, quarterly reports and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company
to its public stockholders generally.
(f) The proceeds of the offering of the Securities will be
applied as set forth in the Final Prospectus.
(g) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or
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dealer may be required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request.
(h) The Company will pay and bear all costs and expenses
incident to the performance of their obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as originally
filed and as amended, any preliminary prospectus supplements and the
Basic Prospectus, the Preliminary Final Prospectus and the Final
Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriters, (ii) the preparation,
printing and distribution of this Agreement, the Securities, any
Delayed Delivery Contracts, any Blue Sky Survey and any Legal
Investment Survey, (iii) the delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel
and the accountants required hereby to provide "comfort letters", (v)
the qualification of the Securities under the applicable securities
laws in accordance with Section 4(i) and any filing for review of the
offering with the National Association of Securities Dealers, Inc.,
including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with any Blue
Sky Survey and any Legal Investment Survey, (vi) any fees charged by
rating agencies for rating the Preferred Securities, (vii) any expenses
and listing fees in connection with the listing of the Securities,
(viii) the cost and charges of any transfer agent or registrar and (ix)
the costs of qualifying the Securities with The Depository Trust
Company.
(i) The Company will arrange for the qualification of each
series of Securities for distribution, offering and sale under the laws
of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of such series of Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors; provided, however, that none of the Company or
its subsidiaries shall be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 4(i),
(ii) file any general consent to service of process or (iii) subject
itself to taxation in any such jurisdiction if it is not so subject.
(j) The Company shall comply with the terms of any lock-up
agreement specified in Schedule I hereto with respect to sales and
dispositions on Underwritten Securities and other securities specified
therein.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the
13
accuracy in all material respects of the representations and warranties on the
part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy in all material respects of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the performance
by the Company, of its obligations hereunder, to the absence of any event or
condition which would give you the right to terminate this Agreement and to the
following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
12:00 Noon on the business day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b);
and at the Closing Date 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.
(b) At the Closing Date, the Company shall have furnished to
you the opinion of the General Counsel to the Company, or, if such
General Counsel is not available, an Associate or Deputy General
Counsel of the Company that practices in the area of corporate and
securities law, dated the Closing Date, substantially in the form of
Exhibit A hereto.
(c) At the Closing Date, the Company shall have furnished to
you the opinion and statement of Cravath, Swaine & Moore, counsel to
the Company, each dated the Closing Date, substantially in the form of
Exhibit B and Exhibit C hereto, respectively.
(d) The Representatives shall have received from counsel for
the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, any Delayed
Delivery Contracts, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives 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.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by any two officers who are an
Executive or Senior Vice President of the Company, dated the Closing
Date, to the effect that
14
the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(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 Final Prospectus (exclusive of any
supplement thereto), the Company has made all filings with the
Commission and announcements, in either case required to be
made by the Act or the Exchange Act.
(f) At the Closing Date, and, if specified in Schedule I, at
the Execution Time, Ernst & Young LLP shall have furnished to the
Representatives a letter or letters, dated respectively as of the
Closing Date and the Execution Time, in form and substance reasonably
satisfactory to the Representatives, confirming that they are
independent auditors with respect to the Company within the meaning
of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules of the Company and its
consolidated subsidiaries included or incorporated in the
Registration Statement and the Final Prospectus comply in
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements (including the notes thereto)
made available by the Company
15
and its consolidated subsidiaries; 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, directors and, if
applicable, executive, finance and audit committees of the
Company and its consolidated subsidiaries; and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
consolidated subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, and
such other inquiries and procedures as may be specified in
such letter, nothing came to their attention which caused
them to believe that:
(1) any of such unaudited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus do
not comply in form in all material respects with
applicable accounting requirements of the Act and the
Exchange Act and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; or 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 or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to
the date of the most recent unaudited financial
statements in or incorporated in the Registration
Statement and the Final Prospectus, there were any
increases, 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 and its consolidated
subsidiaries, or any decreases in stockholders'
equity or the consolidated capital stock of the
Company as compared with the amounts shown on the
most recent consolidated balance sheet included or
incorporated in the Registration Statement and the
Final Prospectus for such entities, or for the
period from the date of the most recent unaudited
financial statements included or incorporated in the
Registration Statement and the Final
16
Prospectus for such entities to such specified date
there were any decreases for such entities, as
compared with the corresponding period in the
preceding year, in revenues, income before income
taxes (or any increase in the loss before income
taxes) or net income (or any increase in net loss),
except in all instances for decreases or increases
set forth in such letter;
(iii) if any pro forma financial statements
are included or incorporated by reference in the Registration
Statement pursuant to Article 11 of Regulation S-X, they are
unable to and do not express any opinion on the pro forma
adjustments to the financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus or on the pro forma adjustments applied
to the historical amounts included or incorporated by
reference in the Registration Statement and the Final
Prospectus; however, for purposes of such letter they have:
(1) read the pro forma adjustments to such
financial statements;
(2) made inquiries of certain officials of
the Company and its subsidiaries who have
responsibility for financial and accounting matters
about the basis for their determination of the pro
forma adjustments to such financial statements and
whether such pro forma adjustments comply as to form
in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation
S-X;
(3) proved the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts included or incorporated by
reference in the Registration Statement and the Final
Prospectus; and
(4) on the basis of such procedures, and
such other inquiries and procedures as may be
specified in such letter, nothing came to their
attention that caused them to believe that the pro
forma adjustments to the financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects with
the applicable requirements of Rule 11-02 of
Regulation S-X and that such pro forma adjustments
have not been properly
17
applied to the historical amounts in the compilation
of such financial statements.
(iv) 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 Final Prospectus and
in Exhibits 12.1, 12.2, 12.3, 12.4 and 12.5 to the Registration
Statement agrees with the accounting records of the
Company and its subsidiaries, excluding any questions
of legal interpretation.
(g) At the Closing Date and, if and to the extent specified in
Schedule I, at the Execution Time, each other firm of independent
accountants who audited or reviewed financial statements included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter or letters, dated
respectively as of the Closing Date and the Execution Time, in form and
substance satisfactory to the Representatives, confirming that they are
independent auditors with respect to the financial statements audited
or reviewed by them within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations
thereunder and to the same effect as the letter or letters of Ernst &
Young LLP as described in Section 5(f) hereof.
(h) 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 Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any decrease or increase specified in the letter or letters referred to
in paragraph (f) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business (including the results of operations or management) or
properties of the Company and its subsidiaries the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the reasonable
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
any series of Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(i) The lock-up agreements, if any, specified in Schedule I
hereto, in form and substance reasonably satisfactory to the
Representatives shall be in full force and effect.
(j) If the Underwritten Securities are shares of Common Stock,
shares of the Common Stock shall be listed on the Closing Date for
trading on the New York Stock Exchange (or any successor exchange
thereto) or quoted on the Nasdaq National Market (or any successor
market thereto).
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
18
(l) The Company shall have accepted the Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 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 Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives and such cancelation shall be without liability of any party to
any other party, except to the extent provided in Sections 4 and 6. Notice of
such cancelation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The several obligations of the Underwriters to purchase Option
Securities hereunder are subject to the delivery to the Representatives on the
Option Closing Date of such documents as they may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Option Securities and other matters related to the issuance of the Option
Securities.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
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 any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the 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 Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, 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 thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final 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 them 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
19
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 any Underwriter through
the Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company, within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. [The Company acknowledges that the
statements set forth in the last paragraph of the cover page, the first and
third paragraphs under the heading "Underwriters" and, if Schedule I hereto
provides for sales of Securities pursuant to delayed delivery arrangements, in
the last sentence under the heading "Delayed Delivery Arrangements" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters
for inclusion in the documents referred to in the foregoing indemnity, and
you, as the Representatives, confirm that such statements are correct.]
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, 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 reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the
20
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential 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 may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party (it being understood, however, that in
connection with such action, the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
representing the indemnified parties who are parties to such action or actions),
(iii) the indemnifying party shall not have employed counsel reasonably
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 to employ separate
counsel at the expense of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified parties, effect any
settlement or compromise or consent to the entry of any judgment with respect to
any pending or threatened, action, suit or proceeding in respect of which any
indemnified Party is or could have been a party and indemnification or
contribution could have been sought hereunder by such party unless such
settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability arising out of such action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree 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 one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company, on one hand, and by the
Underwriters, on the other hand, from the offering of the Securities; provided,
however, that in no case shall any 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 such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters 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 Underwriters 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 (before deducting expenses),
and benefits received by the Underwriters shall be deemed to be
21
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Underwriters. The Company
and the Underwriters 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the 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).
8. Default by an Underwriter. If any one or more Underwriters
shall fail on the Closing Date or the Option Closing Date, as applicable, to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions for each of the Securities which
such Underwriter failed to purchase which the number of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate number of such
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all of the Securities,
this Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 8, the Closing Date or the Option Closing Date, as applicable,
shall be postponed for such period, not exceeding seven days, as the
Representatives and the Company shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (i) trading in the Company's common stock or any of the Company's debt
securities shall have been
22
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on such exchange shall have been suspended or limited or
minimum or maximum prices shall have been established on such exchange, or
maximum ranges for prices for securities have been required, by such exchange or
by order of the Commission or any other governmental authority, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any new 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 of the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of a
series of Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto). If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Sections 4 and 6.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or any of its officers and of the Underwriters 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 any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it care of the Company at 75 Rockefeller Plaza, New
York, New York 10019, attention of 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 7 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 laws of the State of New York.
14. Business Day. For purposes of this Agreement, "business
day" means any day on which the New York Stock Exchange is open for trading.
23
15. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
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,
AOL TIME WARNER INC.,
By
_________________________________________
Name:
Title:
24
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Names of Representatives]
By: [Name of Lead Representative]
By_____________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement: Dated
Registration Statement: No. 333-54518
Representatives:
Managing Underwriter:
Title and Description of Securities:
$
Title:
amount:
Other provisions: None
Closing Date, Time and Location: at 10 a.m. at
Type of funds payable at Closing: [Immediately available federal
funds]
Type of Offering:
Delayed Delivery Arrangements:
Listing requirements:
Comfort letter at Execution Time:
Lock-up Agreement:
SCHEDULE II
Number of
Shares of
Underwritten Securities
Underwriters to be Purchased
- ------------ -----------------------
Total _____________
Total..................................................
EXHIBIT A
FORM OF OPINION OF [ ] ESQ.
(i) The Company is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority under such laws
to own its properties and conduct its business as described in the
Final Prospectus and the Company, is duly qualified to transact
business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise;
(ii) each of the Company's significant subsidiaries, as such term
is defined in Rule 1-02(w) of Regulation S-X under the Act, is validly
existing and in good standing under the laws of the jurisdiction of
its incorporation or organization, with full power and authority under
such laws to own its properties and conduct its business as described
in the Final Prospectus, and any amendment or supplement thereto, and
is duly qualified to transact business as a foreign corporation or
partnership and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of
a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise;
(iii) all of the outstanding capital stock of America Online,
Time Warner, TWC and TBS is owned, directly or indirectly, by the
Company free and clear of all liens, encumbrances, equities or claims;
and the Company's authorized equity capitalization is as set forth in
the Final Prospectus; the shares of the [Preferred Stock, Series
Common Stock or Common Stock, as applicable] outstanding prior to the
issuance of the Underwritten Securities have been duly authorized and
are validly issued, fully paid and non-assessable; the issuance of the
Securities will not be subject to any statutory, or, to such Counsel's
knowledge, contractual preemptive or similar right.
(iv) 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 involving the
Company, or any of its subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(v) no consent, approval, authorization or order of any court,
governmental agency or body (other than
A-1
such as has been obtained under the Act and such as may be required
under the securities or blue sky laws of various jurisdictions) is
required for the authorization, issuance, sale and delivery of the
Securities by the Company, and the consummation by the Company of the
transactions contemplated by the Underwriting Agreement;
(vi) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the execution and delivery of the Underwriting Agreement by
the Company, the issuance, sale and delivery of the Underwritten
Securities by the Company and the consummation by the Company of the
transactions contemplated in the Underwriting Agreement and the
Registration Statement and compliance by the Company with the terms of
the Underwriting Agreement or any Delayed Delivery Contracts do not
and will not result in any violation of the Certificate of
Incorporation, as amended, or By-laws, as amended, of any of the
Company, America Online, Time Warner, TWC and TBS and do not and will
not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Company, America Online, Time Warner,
TWC and TBS under (i) any indenture, mortgage or loan agreement, or
any other agreement or instrument known to such counsel, to which any
of the Company, America Online, Time Warner, TWC and TBS is a party or
by which any of them may be bound or to which any of their properties
may be subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise), (ii) any existing applicable law, rule
or regulation (except for such conflicts, breaches, liens, charges or
encumbrances that would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise, and other than the securities or blue sky laws of
various jurisdictions), or (iii) any judgment, order or decree of any
government, governmental instrumentality or court having jurisdiction
over any of the Company, America Online, Time Warner, TWC and TBS or
any of their properties (other than such as have been obtained under
the Act and the Trust Indenture Act of 1939 and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals as have been obtained);
(viii) the documents incorporated by reference in the Final
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion), as of the dates they were filed
with the Commission, complied as to form in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended.
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In addition, such counsel shall also state as follows: As
General Counsel/[Associate/Deputy General Counsel], I have reviewed and
participated in the preparation of the Registration Statement and the Final
Prospectus, including the documents incorporated by reference therein. In
examining the Registration Statement and Final Prospectus, I have necessarily
assumed the correctness and completeness of the statements made or included
therein by the Company and take no responsibility therefor. However, in the
course of the preparation by the Company of the Registration Statement and the
Final Prospectus, I have participated in conferences with certain officers of,
and accountants for, the Company with respect thereto, and my examination of
the Registration Statement and Final Prospectus and my discussions in the
above-mentioned conferences did not disclose any information which gave me
reason to believe that the Registration Statement, at the time it became
effective or deemed to be amended (except for the financial statements and
other financial or statistical data included therein or omitted therefrom, as
to which I express no opinion), included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, not misleading or that the Final Prospectus (except as
aforesaid), at its issue date or on the date of this opinion, included or
includes any untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, in the 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
United States[, the State of New York] and the General Corporation Law of the
State of Delaware, to the extent such counsel deems proper and specified in such
opinion, upon the opinion of other counsel of good standing whom such counsel
believes to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and public
officials.
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EXHIBIT B
FORM OF OPINION OF CRAVATH, SWAINE & MOORE
(i) Based solely upon a certificate from the Secretary of
State of Delaware the Company is a corporation validly existing in good standing
under the laws of the State of Delaware, with full corporate power and authority
to own its properties and conduct its business as described in the Final
Prospectus;
(ii) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus. The Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement, will be validly issued, fully paid and
nonassessable. [If the Securities are to be listed, the Securities have been
duly authorized for listing, subject to official notice of issuance, on the New
York State Exchange. ]The certificates for the Securities are in valid and
sufficient form.
(iv) the Registration Statement became effective under the
Securities Act on [ 2001]; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated; and
(v) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
We are admitted to practice in the State of New York, and we
express no opinion as to any matters governed by any law other than the law of
the State of New York, the Federal law of the United States of America and the
General Corporation Law of the State of Delaware.
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EXHIBIT C
FORM OF SIDE LETTER OF CRAVATH, SWAINE & MOORE
Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectus, the limitations inherent in the role of outside counsel are such
that we cannot and do not assume responsibility for the accuracy or completeness
of the statements made in the Registration Statement and Prospectus, except
insofar as such statements relate to us and except to the extent set forth in
paragraph (ii) of our opinion to you dated the date hereof. Subject to the
foregoing, we hereby advise you that our work in connection with this matter did
not disclose any information that gave us reason to believe that: (i) the
Registration Statement, at the time the Registration Statement became effective,
or the Prospectus, as of the date hereof, (except in each case the financial
statements and other information of an accounting, statistical or financial
nature included therein as an exhibit to the Registration Statement, as to
which we do not express any view) were not appropriately responsive in all
material respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder; or (ii) the Registration
Statement, at the time the Registration Statement 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, or that the Prospectus, at its issue date and at the date hereof,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading (in
each case except for the financial statements and other information of an
accounting, statistical or financial nature included therein, as to which we
do not express any view).
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