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EXHIBIT 1.1
COOPER INDUSTRIES, INC.
15,000,000 DECS(SM) (DEBT EXCHANGEABLE FOR COMMON STOCK(SM))
% Exchangeable Notes Due , 1998
(Subject to Exchange into Shares of Common Stock,
Par Value $1.00 Per Share, of Wyman-Gordon Company)
UNDERWRITING AGREEMENT
New York, New York
December , 1995
SALOMON BROTHERS INC
MERRILL LYNCH & CO.
SCHRODER WERTHEIM & CO. INCORPORATED
As Representatives for each of the several
Underwriters named in Schedule 1 hereto
c/o SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Cooper Industries, Inc., an Ohio corporation ("Cooper"),
proposes to sell to the Underwriters named in Schedule 1 hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, an aggregate amount of 15,000,000 DECS (Debt Exchangeable for
Common Stock) consisting of its % Exchangeable Notes Due
, 1998 (referred to herein as the "Firm DECS"), which are registered
under the registration statement referred to in Section 2 of this Agreement.
The DECS are to be issued under an indenture dated as of December , 1995, as
supplemented by a First Supplemental Indenture dated as of December , 1995
between Cooper and Texas Commerce Bank National Association, as trustee (the
"Trustee") (as supplemented from time to time, the "Indenture"). In addition,
the Underwriters will have an option to purchase from Cooper up to an
additional 1,500,000 DECS on the terms and for the purposes set forth in
Section 3 of this Agreement (the "Option DECS"). The Firm DECS and the Option
DECS, if purchased, are hereinafter collectively referred to as the "DECS".
In connection with the foregoing and pursuant to the
Investment Agreement dated as of January 10, 1994,
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between Cooper and Wyman-Gordon Company (the "Investment Agreement"),
Wyman-Gordon Company, a Massachusetts corporation ("WGC"), has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
with respect to 16,500,000 shares of the common stock of WGC, par value $1.00
per share (the "WGC Common Stock"), for sale by Cooper as a selling stockholder
(to the extent it shall so elect to deliver WGC Common Stock to holders of the
DECS at maturity thereof pursuant to the terms of the DECS), which registration
statement is referred to in Section 1 of this Agreement.
1. Representations, Warranties and Agreements of Wyman-Gordon
Company. WGC makes the following representations, warranties and agreements
for the benefit of the Underwriters and Cooper:
(a) WGC meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"). A
registration statement on Form S-3, including a preliminary
prospectus, relating to the WGC Common Stock has (i) been prepared by
WGC in conformity with the requirements of the Securities Act and the
rules and regulations (the "Rules and Regulations") of the Commission
thereunder and (ii) been filed with the Commission and become
effective under the Securities Act. Such registration statement and
prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement; any such amendment to the
registration statement was so prepared and filed and any such
amendment has become effective. Copies of such registration statement
and prospectus, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission
on or prior to the date of this Agreement (including a complete
conformed copy of the registration statement and of each amendment
thereto for counsel for the Underwriters) have been delivered by WGC
to the Representatives and to Cooper and its counsel. Such
registration statement and prospectus, as amended or supplemented,
together with any registration statement filed pursuant to Rule 462(b)
of the Rules and Regulations relating to the offering covered by the
initial WGC registration statement (file number 33-63459) (a "Rule
462(b) WGC Registration Statement") are herein referred to as the "WGC
Registration Statement" and the "WGC Prospectus". As used in this
Agreement, "Effective Time" with respect
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to the WGC Registration Statement means each date and time as of which
the WGC Registration Statement, the most recent post-effective
amendment thereto, if any, and any Rule 462(b) WGC Registration
Statement was declared effective by the Commission; "Effective Date"
with respect to the WGC Registration Statement means the date of the
Effective Time; "Preliminary WGC Prospectus" means such prospectus
included in the WGC Registration Statement, or amendments thereof,
before it became effective under the Securities Act and any prospectus
filed with the Commission by WGC with the consent of the
Representatives pursuant to Rule 424(a) of the Rules and Regulations;
"WGC Registration Statement" means such registration statement, as
amended at the Effective Time, including all information contained in
the final prospectus filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations in accordance with Section 6(a) of this
Agreement and deemed to be a part of such registration statement as of
the Effective Time pursuant to paragraph (b) of Rule 430A of the Rules
and Regulations and including any Rule 462(b) WGC Registration
Statement; and "WGC Prospectus" means such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations and attached as Appendix A to the
CBE Prospectus (as hereinafter defined). Any reference herein to the
WGC Registration Statement, any Preliminary WGC Prospectus or the WGC
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 with the Commission on or prior to the date of this
Agreement and any reference to the terms "amend", "amendment" or
"supplement" with respect to the WGC Registration Statement, any
Preliminary WGC Prospectus or the WGC Prospectus shall be deemed to
refer to and include the filing of any document with the Commission
deemed to be incorporated by reference therein after the date of this
Agreement. WGC has not been advised that or obtained knowledge that
the Commission has issued any order preventing or suspending the use
of any Preliminary WGC Prospectus.
(b) The WGC Registration Statement conforms, and the WGC
Prospectus and any further amendments or supplements thereto will,
when they become effective or are filed with the Commission, as the
case may be, conform in all material respects to the requirements of
the Securities Act and the Rules and Regulations and do
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not and will not, as of the applicable Effective Date (as to the WGC
Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the WGC Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
no representation or warranty is made as to (i) information contained
in or omitted from the WGC Registration Statement or the WGC
Prospectus in reliance upon and in conformity with written information
furnished to WGC through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein and (ii) information
contained in or omitted from the WGC Prospectus in reliance upon and
in conformity with the information furnished to WGC by Cooper in
writing specifically for inclusion therein.
(c) The documents incorporated by reference in the WGC
Registration Statement or the WGC Prospectus, when they were filed
with the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), conformed, and any documents so filed
and incorporated by reference after the date of this Agreement and on
or before the First Delivery Date (as hereinafter defined) will, when
they are filed with the Commission, conform, in all material respects
to the requirements of the Securities Act and the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(d) WGC and each of Wyman-Gordon Forgings, Inc., a Delaware
corporation, Wyman-Gordon Limited, an English corporation;
Wyman-Gordon Investment Castings, Inc., a Delaware corporation;
Precision Founders, Inc., a California corporation; Wyman-Gordon
Composite Technologies, Inc., a California corporation; and Scaled
Composites, Inc., a California corporation (each a "WGC Subsidiary"
and collectively the "WGC Subsidiaries") have been duly incorporated
and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification and in which the failure to so qualify
would or could reasonably be
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expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of WGC and its subsidiaries as a whole, and have the
corporate power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are
engaged in the manner in which they are currently being conducted; and
none of the subsidiaries of WGC, other than the WGC Subsidiaries, is a
"significant subsidiary", as such term is defined in Rule 405 of the
Rules and Regulations.
(e) WGC has an authorized capitalization as set forth in the
WGC Prospectus, and all of the issued shares of capital stock of WGC
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in
the WGC Prospectus; and all of the issued shares of capital stock of
each WGC Subsidiary have been duly and validly authorized and issued
(except for directors' qualifying shares and except that WGC owns
approximately 88% of Wyman-Gordon Composite Technologies, Inc., which,
in turn, owns 100% of the outstanding capital stock of Scaled
Composites, Inc.) and are fully paid, nonassessable and are owned
directly or indirectly by WGC, free and clear of all liens,
encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and
delivered by WGC.
(g) The execution, delivery and performance of this Agreement
by WGC and the consummation by WGC of the transactions contemplated
hereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which WGC or any of its subsidiaries is a party or by
which WGC or any of its subsidiaries is bound or to which any of the
property or assets of WGC or any of its subsidiaries is subject which
would individually or in the aggregate have a material adverse effect
on the business, properties, financial position, stockholders' equity
or results of operations of WGC and its subsidiaries taken as a whole,
nor will such actions result in any violation of the provisions of the
charter or by-laws of WGC or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental
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agency or body having jurisdiction over WGC or any of its subsidiaries
or any of their properties or assets; and no consent, approval,
authorization or order of, or filing or registration with, any court
or governmental agency or body, is required for the execution,
delivery and performance of this Agreement and the consummation by WGC
of the transactions contemplated hereby, except as have been obtained
under the Securities Act and the Exchange Act and such as may be
required under applicable state securities laws and such other
approvals as have been duly obtained or made and are in full force and
effect.
(h) Except for the Investment Agreement, there are no
contracts, agreements or understandings between WGC and any person
granting such person the right to require WGC to file a registration
statement under the Securities Act with respect to any securities of
WGC owned or to be owned by such person or to require WGC to include
such securities in the securities registered pursuant to the WGC
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by WGC under the Securities
Act.
(i) Neither WGC nor any of its subsidiaries has sustained,
since the date of the latest financial statements included in the WGC
Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, which would or could reasonably be expected to have a
material adverse effect on the business, properties, financial
position, stockholders' equity or results of operations of WGC and its
subsidiaries as a whole; and, since such date, there has not been any
change in the capital stock or long-term debt of WGC or any of its
subsidiaries (otherwise than as set forth or contemplated in the WGC
Prospectus) or any material adverse change in or affecting, or any
adverse development which materially affects, the business,
properties, financial position, stockholders' equity or results of
operations of WGC and its subsidiaries as a whole, otherwise than as
set forth or contemplated in the WGC Prospectus.
(j) The audited financial statements (including the related
notes and supporting schedules) filed as part of the WGC Registration
Statement or included in
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the WGC Prospectus present fairly in all material respects the
financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated therein.
The unaudited financial statements of WGC included in the WGC
Prospectus and the WGC Registration Statement and the related notes
and supporting schedules are, in all material respects accurately
presented and prepared on a basis consistent with WGC's audited
financial statements and the books and records of WGC, subject to
normally recurring changes resulting from year-end audit adjustments,
and have been prepared in accordance with the instructions to Form
10-Q under the Exchange Act.
(k) Except as described in the WGC Prospectus, there are no
legal or governmental proceedings pending to which WGC or any of its
subsidiaries is a party or of which any property of WGC or any of the
WGC Subsidiaries is the subject which, if determined adversely to WGC
or any of its subsidiaries, would or could reasonably be expected to
have a material adverse effect on the business, properties, financial
position, stockholders' equity or results of operations of WGC and the
WGC Subsidiaries taken as a whole; and to the actual knowledge of WGC,
no such proceedings are threatened by governmental authorities or by
others.
(l) There are no contracts or other documents which are
required to be filed as exhibits to the WGC Registration Statement by
the Securities Act or by the Rules and Regulations which have not been
filed as exhibits to the WGC Registration Statement.
(m) Except as described in the WGC Prospectus since the date
as of which information is given in the WGC Prospectus, WGC has not
(i) issued or granted any rights to acquire any securities (other than
grants of stock options to directors or employees in the ordinary
course) or (ii) declared or paid any dividend on its capital stock.
(n) WGC is not in violation of its charter or by-laws, and no
WGC Subsidiary is in violation of any material provision of its
charter or by-laws.
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(o) Neither WGC nor any of its subsidiaries (i) is in default,
and no event has occurred which, with notice or lapse of time or both,
would constitute a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject or (ii) is in violation of any law,
ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or has failed to obtain any
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business except, in the case of clauses (i) and
(ii), for those defaults, violations or failures which, either
individually or in the aggregate, would not or could not reasonably be
expected to have a material adverse effect on the business,
properties, financial position, stockholders' equity or results of
operations of WGC and its subsidiaries taken as a whole.
(p) The WGC Common Stock has been approved for listing on The
Nasdaq Stock Market's National Market ("Nasdaq").
(q) WGC is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under
the Investment Company Act of 1940.
(r) WGC has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of the shares of WGC Common
Stock to facilitate the sale or resale of the DECS.
2. Representations, Warranties and Agreements of Cooper
Industries, Inc. Cooper represents, warrants and agrees that:
(a) A registration statement on Form S-3, including a
preliminary prospectus, relating to the DECS has (i) been prepared by
Cooper in conformity with the requirements of the Securities Act, the
Rules and Regulations thereunder and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and (ii) been filed with the
Commission and become
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effective under the Securities Act. Such registration statement and
prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement; any such amendment to the
registration statement was so prepared and filed and any such
amendment has become effective. Copies of such registration statement
and prospectus, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission
on or prior to the date of this Agreement (including one complete
conformed copy of the registration statement and of each amendment
thereto for counsel for the Underwriters) have been delivered to the
Representatives and WGC and its counsel. Such registration statement
and prospectus, as amended or supplemented, together with any
registration statement filed pursuant to Rule 462(b) of the Rules and
Regulations relating to the offering covered by the initial Cooper
registration statement (file number 33-63457) (a "Rule 462(b) Cooper
Registration Statement"), are herein referred to as the "CBE
Registration Statement" and the "CBE Prospectus". As used in this
Agreement, "Effective Time" with respect to the CBE Registration
Statement means each date and time as of which the CBE Registration
Statement, the most recent post-effective amendment thereto, if any,
and any Rule 462(b) Cooper Registration Statement was declared
effective by the Commission; "Effective Date" with respect to the CBE
Registration Statement means the date of the Effective Time;
"Preliminary CBE Prospectus" means such prospectus included in the CBE
Registration Statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the
Commission by Cooper, with the consent of the Representatives in
accordance with Section 7 of this Agreement, pursuant to Rule 424(a)
of the Rules and Regulations; "CBE Registration Statement" means such
registration statement, as amended at the Effective Time, including
all information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 7(a) of this Agreement and deemed to be a part
of such registration statement as of the Effective Time pursuant to
paragraph (b) of Rule 430A of the Rules and Regulations and including
any Rule 462(b) Cooper Registration Statement; and "CBE Prospectus"
means such final prospectus, as first filed with the Commission as
part of the CBE Registration Statement pursuant to paragraph (1) or
(4) of
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Rule 424(b) of the Rules and Regulations. Any reference herein to the
CBE Registration Statement, any Preliminary CBE Prospectus or the CBE
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein which were filed with the Commission
on or prior to the date of this Agreement and any reference to the
terms "amend", "amendment" or "supplement" with respect to the CBE
Registration Statement, any Preliminary CBE Prospectus or the CBE
Prospectus shall be deemed to refer to and include the filing of any
document with the Commission deemed to be incorporated by reference
therein after the date of this Agreement. Cooper has not been advised
that or obtained knowledge that the Commission has issued any order
preventing or suspending the use of any Preliminary CBE Prospectus.
(b) The CBE Registration Statement conforms, and the CBE
Prospectus and any further amendments or supplements thereto will,
when they become effective or are filed with the Commission, as the
case may be, conform in all material respects to the requirements of
the Securities Act, the Rules and Regulations thereunder and the Trust
Indenture Act and do not and will not, as of the applicable effective
date (as to the CBE Registration Statement and any amendment thereto)
and as of the applicable filing date (as to the CBE Prospectus and any
amendment or supplement thereto) contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to (i)
information contained in or omitted from the CBE Registration
Statement or the CBE Prospectus in reliance upon and in conformity
with written information furnished to Cooper through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, (ii) information contained in or omitted from the
WGC Prospectus (attached as Appendix A to the CBE Prospectus), other
than information furnished to WGC by Cooper in writing specifically
for inclusion therein and (iii) that part of the CBE Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee.
(c) The documents incorporated by reference in the CBE
Registration Statement or the CBE Prospectus
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(excluding the WGC Prospectus included as Appendix A thereto), when
they became effective or were filed with the Commission, as the case
may be, under the Exchange Act conformed, and any documents so filed
and incorporated by reference after the date of this Agreement and on
or before the First Delivery Date will, when they are filed with the
Commission, conform, in all material respects to the requirements of
the Securities Act and the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder.
(d) The audited consolidated financial statements of Cooper
and its consolidated subsidiaries incorporated by reference in the CBE
Registration Statement and the CBE Prospectus present fairly, in all
material respects the consolidated financial position of Cooper and
its consolidated subsidiaries as of the dates indicated and the
consolidated results of its operations and its cash flows for the
periods therein specified; and said financial statements have been
prepared in accordance with generally accepted principles of
accounting, applied on a consistent basis throughout the periods
involved. The unaudited consolidated financial statements of Cooper
incorporated by reference in the CBE Prospectus and the CBE
Registration Statement and the related notes present fairly, subject
to normal recurring adjustments, the financial information included
therein and comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the rules
and regulations of the Commission thereunder.
(e) Cooper and each of its Principal Subsidiaries (as defined
in paragraph (g) below) have been duly incorporated, are validly
existing and in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership of property or the conduct of their
respective businesses requires such qualification (except where the
failure so to qualify would not be material to Cooper and its
subsidiaries taken as a whole), and have the corporate power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged in the manner in
which they are currently being conducted.
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(f) The Indenture and the DECS have been duly authorized; the
Indenture has been duly qualified under the Trust Indenture Act; and
the Indenture, when the First Supplemental Indenture is duly executed
and delivered, and the DECS, when they are duly executed,
authenticated, issued and delivered as contemplated hereby and by the
Indenture, will constitute valid and legally binding obligations of
Cooper enforceable against Cooper in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
(g) Neither Cooper nor any of Cooper (Great Britain) Ltd.,
Cooper Power Systems, Inc., Cooper Industries (Canada) Inc.,
McGraw-Edison Company or Champion Spark Plug Company (the "Principal
Subsidiaries") is in violation of its corporate charter or by-laws or
in default under any agreement, indenture or instrument, the effect of
which violation or default would be material to Cooper and its
subsidiaries taken as a whole.
(h) This Agreement has been duly authorized, executed and
delivered by Cooper.
(i) Neither the issuance or sale of the DECS, nor the
execution, delivery and performance of this Agreement and the
Indenture by Cooper and the consummation by Cooper of any other
transactions contemplated hereby will conflict with, or result in a
breach or violation of, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of Cooper or any of
its subsidiaries pursuant to the terms of, or constitute a default
under, any agreement, indenture or instrument to which Cooper or any
of its subsidiaries is a party or by which it or its properties is
bound, or result in a violation of the provisions of the corporate
charter or by-laws of Cooper or any of its subsidiaries [or any order,
rule or regulation (applicable to Cooper, any of its subsidiaries or
any of their respective properties) of any court or governmental
agency having jurisdiction over Cooper, any of its subsidiaries or
their respective properties], the effect of any of which would be
material to Cooper and its subsidiaries taken as a whole.
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(j) Cooper has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of Cooper
to facilitate the sale or resale of the DECS.
(k) Cooper beneficially owns, and, immediately prior to
delivery to the holders of DECS in accordance with the terms of the
Indenture, will own 16,500,000 shares of WGC Common Stock, free and
clear of all liens, encumbrances, equities or claims, except for such
liens, encumbrances, equities or claims as may be imposed by the
Investment Agreement.
3. Purchase of the DECS by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, Cooper hereby agrees to issue and sell
15,000,000 DECS, severally and not jointly, to the Underwriters, and each of
the Underwriters, severally and not jointly, agrees to purchase the number of
DECS set forth opposite that Underwriter's name on Schedule 1 hereto, at a
price of $[ ] per DECS.
In addition, Cooper grants to the Underwriters an option to
purchase up to an additional 1,500,000 DECS at a price of $[ ] per DECS.
Such option is granted solely for the purpose of covering over-allotments in
the sale of DECS and is exercisable by the Underwriters as provided in Section
5 of this Agreement. Option DECS shall be purchased severally for the account
of the Underwriters in proportion to the number of the Firm DECS set forth
opposite the names of such Underwriters in Schedule 1 hereto.
Cooper shall not be obligated to deliver any of the DECS to be
delivered on the First Delivery Date or the Second Delivery Date (as defined
below), as the case may be, except upon payment for all the DECS to be
purchased on such Delivery Date as provided herein.
4. Offering of DECS by the Underwriters. (a) Upon
authorization by the Representatives of the release of the Firm DECS, the
several Underwriters propose to offer the Firm DECS for sale upon the terms and
conditions set forth in the CBE Prospectus.
5. Delivery of and Payment for the DECS. Delivery of and
payment for the DECS shall be made at the
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office of Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New
York, New York, at 10:00 A.M., New York City time, on the third full business
day following the date of this Agreement or at such other date or place as
shall be determined by agreement between the Representatives and Cooper. This
date and time are sometimes referred to herein as the "First Delivery Date".
On the First Delivery Date, Cooper shall deliver or cause to be delivered
certificates representing the DECS to the Representatives for the account of
each Underwriter against payment by wire transfer of immediately available
funds to Chase Manhattan Bank, New York, New York, for credit to the account of
Cooper Industries, Inc. account number . Time shall be of the
essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. The DECS will be prepared in definitive form and in such authorized
denominations and registered in such names as the Representatives may request
in writing at least one full business day prior to the First Delivery Date and
will be made available for checking and packaging at the office at which they
are to be delivered on the First Delivery Date not later than 2:00 P.M., New
York City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement, the option granted in Section 3 of this Agreement may be
exercised by written notice being given to Cooper (with a copy to WGC) by the
Representatives. Such notice shall set forth the aggregate amount of Option
DECS as to which the option is being exercised, the names in which the Option
DECS are to be registered, the denominations in which the Option DECS are to be
issued and the date and time, as determined by the Representatives, when the
Option DECS are to be delivered; provided, however, that this date and time
shall not be earlier than the First Delivery Date nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the third business day after the date on which the option shall have
been exercised unless the Representatives and Cooper shall otherwise agree.
The date and time the Option DECS are delivered are sometimes referred to
herein as the "Second Delivery Date", and the First Delivery Date and the
Second Delivery Date are sometimes each referred to herein as a "Delivery
Date".
Delivery of and payment for the Option DECS shall be made at
the office of Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New
York, New York (or at such
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other place as shall be determined by agreement among the Representatives and
Cooper), at 10:00 A.M., New York City time, on the Second Delivery Date. On
the Second Delivery Date, Cooper shall deliver or cause to be delivered the
certificates representing the Option DECS to the Representatives for the
account of each Underwriter against payment by wire transfer of immediately
available funds to Chase Manhattan Bank, New York, New York, for credit to the
account of Cooper Industries, Inc. account number . Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. The Option DECS will be prepared in definitive form and in such
authorized denominations and registered in such names as the Representatives
may require in the aforesaid written notice and will be made available for
checking and packaging at the office at which they are to be delivered on the
Second Delivery Date not later than 2:00 P.M., New York City time, on the
business day prior to the Second Delivery Date.
6. Further Agreements of WGC. WGC agrees:
(a) To prepare the WGC Prospectus in a form approved by the
Representatives and Cooper (which approval shall not be unreasonably
withheld) and to file such WGC Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the close of business of the
Commission on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the WGC Registration Statement
or to the WGC Prospectus except as permitted herein (other than any
document required to be filed under the Exchange Act which upon filing
is deemed to be incorporated by reference therein); to furnish the
Representatives and Cooper at or prior to the filing thereof a copy of
any such document which upon filing is deemed to be incorporated by
reference in the WGC Registration Statement or the WGC Prospectus; to
advise the Representatives and Cooper, promptly after it receives
notice thereof, of the time when the WGC Registration Statement, or
any amendment thereto, or any Rule 462(b) WGC Registration Statement
has been filed or becomes effective or any supplement to the WGC
Prospectus or any amended WGC Prospectus has been filed and to furnish
the Representatives and Cooper with copies thereof; to advise the
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Representatives and Cooper promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary WGC Prospectus or
the WGC Prospectus, of the suspension of the qualification of the WGC
Common Stock for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of
the WGC Registration Statement or the WGC Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary WGC
Prospectus or the WGC Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters, Cooper,
counsel for the Underwriters and counsel to Cooper a conformed copy of
the WGC Registration Statement as originally filed with the
Commission, and each amendment thereto, and any Rule 462(b) WGC
Registration Statement filed with the Commission, including all
consents and exhibits filed therewith, and, so long as delivery of a
prospectus by an Underwriter may be required by the Securities Act, as
many copies of each Preliminary WGC Prospectus and the WGC Prospectus
and any supplement thereto as the Representatives and Cooper may
reasonably request; and to furnish to the Representatives and Cooper
at or prior to the filing thereof a copy of any document which upon
filing is deemed incorporated by reference in the WGC Registration
Statement or the WGC Prospectus;
(c) If, at any time when a prospectus relating to the WGC
Common Stock is required to be delivered under the Securities Act,
including whenever the CBE Prospectus relating to the DECS is required
to be delivered under the Securities Act, any event occurs as a result
of which the WGC Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the WGC Registration Statement or
supplement the WGC Prospectus to comply with the Securities Act or the
Exchange Act or the respective rules and regulations of
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the Commission thereunder, WGC promptly will (i) prepare and file with
the Commission subject to paragraph (e) of this Section 6, an
amendment or supplement which will correct such statement or omission
or effect such compliance and (ii) supply any supplemented WGC
Prospectus to the Representatives and Cooper in such quantities as the
Representatives and Cooper may reasonably request;
(d) To file promptly with the Commission any amendment to the
WGC Registration Statement or the WGC Prospectus or any supplement to
the WGC Prospectus that may, in the judgment of WGC or the
Representatives, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission (i) any amendment to
the WGC Registration Statement or supplement to the WGC Prospectus or
(ii) any WGC Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Representatives, Cooper,
counsel for the Underwriters and counsel for Cooper and obtain the
consent of the Representatives and Cooper to the filing, which consent
will not be unreasonably withheld;
(f) As soon as practicable after the Effective Date, to make
generally available to WGC's security holders and to deliver to the
Representatives and Cooper an earnings statement of WGC and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of WGC, Rule 158);
(g) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the WGC Common Stock
for offering as described in the WGC Prospectus under the securities
laws of such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the offering of the WGC Common Stock being made in
connection with the offering by Cooper of the DECS; provided that in
connection therewith WGC shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing
business
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in any jurisdiction in which it is not otherwise so subject;
(h) For a period of 90 days from the date of the WGC
Prospectus, not to (i) offer for sale, sell or otherwise dispose of,
directly or indirectly, any shares of WGC Common Stock or permit the
registration under the Securities Act of any shares of WGC Common
Stock (other than (x) the WGC Common Stock offered pursuant to the CBE
Prospectus and the WGC Prospectus and (y) shares issued pursuant to
employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof), (ii) sell or grant
options, rights or warrants with respect of any shares of WGC Common
Stock (other than the grant of options pursuant to option plans
existing on the date hereof), or (iii) offer for sale, sell or
otherwise dispose of, directly or indirectly, any securities
convertible, exchangeable or exercisable into WGC Common Stock,
without, in any case, the prior written consent of the
Representatives; and
(i) To take such action as may be reasonably necessary to
comply with the rules and regulations of Nasdaq in respect of the
listing and offering of the WGC Common Stock in connection with the
offering by Cooper of the DECS.
(j) To deliver to Cooper, copies of the opinions, comfort
letters and certificates specified in Section 3.5(e) of the Investment
Agreement.
7. Further Agreements of Cooper. Cooper covenants and agrees
with each Underwriter that:
(a) Cooper will cause the CBE Prospectus to be filed pursuant
to Rule 424(b) under the Securities Act not later than the close of
business of the Commission on the second business day following the
execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the
Securities Act and will notify the Representatives and WGC promptly of
such filing. During the period in which a prospectus relating to the
DECS is required to be delivered under the Securities Act, Cooper will
notify the Representatives and WGC promptly of the time when the CBE
Registration Statement, or any amendment thereto, or any Rule 462(b)
Cooper Registration Statement has been filed or becomes
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effective or any supplement to the CBE Prospectus or any amended CBE
Prospectus has been filed and of any request by the Commission for any
amendment of or supplement to the CBE Registration Statement or the
CBE Prospectus or for additional information; Cooper will prepare and
file with the Commission, promptly upon the request of the
Representatives, any amendments or supplements to the CBE Registration
Statement or the CBE Prospectus which are required by the Securities
Act in connection with the distribution of the DECS by the
Underwriters; Cooper will file no amendment or any supplement to the
CBE Registration Statement or to the CBE Prospectus (other than any
document required to be filed under the Exchange Act which upon filing
is deemed to be incorporated by reference therein) or any Rule 462(b)
Cooper Registration Statement to which the Representatives shall
reasonably object by notice to Cooper after having been furnished a
copy a reasonable time prior to the filing thereof; and Cooper will
furnish to the Representatives and WGC at or prior to the filing
thereof a copy of any document which upon filing by Cooper is deemed
to be incorporated by reference in the CBE Registration Statement or
the CBE Prospectus.
(b) Cooper will advise the Representatives, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness of the
CBE Registration Statement or preventing or suspending the use of any
Preliminary CBE Prospectus or the CBE Prospectus, of the suspension of
the qualification of the DECS for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings
for any such purpose; and it will promptly use its best efforts to
prevent the issuance of any stop order or to obtain its withdrawal if
such a stop order should be issued.
(c) Within the time during which a prospectus relating to the
DECS is required to be delivered under the Securities Act, Cooper will
comply as far as it is able with all requirements imposed upon it by
the Securities Act and the Rules and Regulations, so far as necessary
to permit the continuance of sales of or dealings in the DECS as
contemplated by the provisions hereof and the CBE Prospectus. If
during such period any event occurs as a result of which the CBE
Prospectus as then amended or supplemented would
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include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
or if during such period it shall be necessary to amend or supplement
the CBE Registration Statement or the CBE Prospectus to comply with
the Securities Act or the Exchange Act or the respective rules and
regulations of the Commission thereunder, Cooper promptly will notify
the Representatives and will amend or supplement the CBE Registration
Statement or the CBE Prospectus (at the expense of Cooper) so as to
correct such statement or omission or effect such compliance.
(d) Cooper will use its best efforts to qualify the DECS for
offering and sale under the securities laws of such jurisdictions as
the Representatives reasonably designate, and to maintain such
qualifications in effect so long as required to complete the
distribution of the DECS, except that Cooper shall not be required in
connection therewith to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(e) Cooper will furnish to WGC and to the Underwriters and to
counsel for the Underwriters conformed copies of the CBE Registration
Statement and copies of each Preliminary CBE Prospectus and the CBE
Prospectus (including all documents incorporated by reference therein
and all consents and exhibits filed therewith), and all amendments and
supplements to the CBE Registration Statement, each Preliminary CBE
Prospectus and the CBE Prospectus which are filed with the Commission
during the period in which a prospectus relating to the DECS is
required to be delivered under the Securities Act (including all
documents filed with the Commission during such period which are
deemed to be incorporated by reference therein), in each case in such
quantities as the Representatives or WGC may from time to time
reasonably request.
(f) So long as any of the DECS are outstanding, Cooper agrees
to furnish to the Representatives upon your request (i) copies of any
reports furnished by Cooper to its security holders generally and (ii)
any reports and financial statements filed by or on behalf
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of Cooper with the Commission or any national securities exchange.
(g) Cooper will make generally available to its security
holders and will deliver to the Representatives and WGC as soon as
practicable after the Effective Date, but in any event not later than
15 months after the end of Cooper's current fiscal quarter, an
earnings statement of Cooper and its subsidiaries (which need not be
audited) covering a 12-month period beginning after the date upon
which the CBE Prospectus is filed pursuant to Rule 424 under the
Securities Act which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.
(h) For a period of 90 days from the date of the CBE
Prospectus, except as contemplated by the Master Securities Loan
Agreement, dated as of , 1995 between Cooper and Salomon
Brothers Inc (the "Loan Agreement"), Cooper will not (i) offer for
sale, sell or otherwise dispose of, directly or indirectly, any shares
of WGC Common Stock or request the registration under the Securities
Act of any shares of WGC Common Stock (other than the WGC Common Stock
offered pursuant to the CBE Prospectus and the WGC Prospectus), (ii)
sell or grant options, rights or warrants with respect of any shares
of WGC Common Stock, or (iii) offer for sale, sell or otherwise
dispose of, directly or indirectly, any securities convertible,
exchangeable or exercisable into WGC Common Stock, without, in any
case, the prior written consent of the Representatives.
(i) Cooper will use its best efforts to cause an application
for the listing of the DECS on the New York Stock Exchange (the
"NYSE") and for the registration of the DECS under the Exchange Act to
become effective and to take such other action as may be necessary to
comply with the rules and regulations of the NYSE in respect of the
listing of the DECS on the NYSE.
8. Expenses. WGC and Cooper agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the DECS and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of each of the CBE Registration
Statement and the WGC Registration Statement and any amendments and exhibits
thereto; (c) the
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costs of distributing (i) the CBE Registration Statement and the WGC
Registration Statement, each as originally filed and all amendments thereto and
any post-effective amendments thereto (including, in all cases, exhibits), (ii)
any Preliminary WGC Prospectus, the WGC Prospectus and any amendment or
supplement to the WGC Prospectus, all as provided in this Agreement, and (iii)
any Preliminary CBE Prospectus, the CBE Prospectus and any amendment or
supplement to the CBE Prospectus, all as provided in this Agreement; (d) the
costs of reproducing and distributing this Agreement; (e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the DECS; (f) any applicable
stock exchange listing or other fees for the DECS; (g) the fees and expenses of
filings, if any, with foreign securities administrators and of qualifying each
of the DECS and the WGC Common Stock under the securities laws of the several
jurisdictions as provided in Sections 6(g) and 7(d) of this Agreement,
respectively, of determining the legality of the DECS for purchases as provided
in Section 7(d) of this Agreement and of preparing, printing and distributing a
Blue Sky Memorandum and legal investment memorandum (including related fees and
expenses of counsel to the Underwriters); and (h) all other costs and expenses
incident to the performance of the obligations of WGC and Cooper under this
Agreement, to be apportioned in accordance with the terms and provisions of the
Letter Agreement, dated as of October 11, 1995, between WGC and Cooper;
provided that except as provided in this Section 8 and in Section 13 of the
Agreement, the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the DECS which
they may sell and the expenses of advertising any offering of DECS made by the
Underwriters, and Cooper shall pay any transfer taxes payable in connection
with its sale of DECS to the Underwriters.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of WGC
and Cooper contained herein, to the performance by WGC and Cooper in all
material respects of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) No stop order suspending the effectiveness, in whole or in
part, of either of the CBE Registration Statement or the WGC
Registration Statement shall have
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been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in either of the
CBE Registration Statement or the WGC Registration Statement or either
of the CBE Prospectus or the WGC Prospectus or otherwise shall have
been complied with to your reasonable satisfaction.
(b) The Underwriters shall have received from Cravath, Swaine
& Moore such opinion or opinions dated such Delivery Date, with
respect to the issuance and sale of the DECS, the CBE Registration
Statement and the CBE Prospectus, the WGC Registration Statement and
the WGC Prospectus, and other related matters as the Underwriters may
reasonably require, and WGC and Cooper shall have furnished to such
counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(c) Wallace F. Whitney, Jr., Esq., Vice President, General
Counsel and Clerk of WGC shall have furnished to the Representatives
his written opinion, addressed to the Underwriters and dated such
Delivery Date, substantially in the form of Exhibit A attached hereto.
(d) Cooper shall have furnished to the Representatives the
opinions of Skadden, Arps, Slate, Meagher & Flom, counsel for Cooper,
addressed to the Underwriters and dated such Delivery Date,
substantially in the forms of Exhibit B and Exhibit C attached hereto.
(e) Diane K. Schumacher, Esq., Senior Vice President, General
Counsel and Secretary of Cooper, shall have furnished to the
Representatives her written opinion, addressed to the Underwriters and
dated such Delivery Date, substantially in the form of Exhibit D
attached hereto.
(f) Each of WGC and Cooper shall have furnished to the
Representatives (i) a letter of Ernst & Young LLP, addressed to the
Underwriters and dated the date of this Agreement substantially in the
forms of Exhibit E and Exhibit F attached hereto and (ii) a letter of
Ernst & Young LLP, addressed to the Underwriters and dated such
Delivery Date confirming as of such date the matters contained in the
letter referred to in clause (i) above.
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(g) WGC shall have furnished to the Representatives a
certificate, addressed to the Underwriters and dated such Delivery
Date, of its Chairman of the Board of Directors or its President and
its Chief Financial Officer to the effect that the signers of such
certificate have carefully examined the WGC Registration Statement,
the WGC Prospectus and this Agreement and that:
(i) the representations and warranties of WGC in this
Agreement are true and correct in all material respects on and
as of such Delivery Date with the same effect as if made on
such Delivery Date and WGC has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Delivery Date;
(ii) no stop order suspending the effectiveness of the
WGC Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to WGC's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included in the WGC Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of WGC and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the WGC Prospectus (exclusive of any supplement thereto).
(h) Cooper shall have furnished to the Representatives a
certificate, addressed to the Underwriters and dated such Delivery
Date, of the Chairman of the Board of Directors, President or any Vice
President and of the Treasurer or an Assistant Treasurer of Cooper, to
the effect that the signers of such certificate have carefully
examined the CBE Registration Statement, the CBE Prospectus and this
Agreement and that:
(i) the representations and warranties of Cooper in
this Agreement are true and correct in all material respects
on and as of such Delivery Date with the same effect as if
made on such
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Delivery Date and Cooper has complied with all the agreements
and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Delivery Date;
(ii) no stop order suspending the effectiveness of the
CBE Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to Cooper's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the CBE Prospectus (exclusive of any
supplement thereto) there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of Cooper and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the CBE Prospectus (exclusive of any supplement thereto).
(i) Subsequent to the date and time that this Agreement is
executed and delivered by the parties hereto (the "Execution Time"),
or, if earlier, the dates as of which information is given in the WGC
Registration Statement (exclusive of any amendment thereof) and the
WGC Prospectus (exclusive of any supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or
letters furnished by WGC referred to in paragraph (f) of this Section
9 or (ii) any change, or any development involving a prospective
change, in or affecting the business or properties of WGC 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 the DECS as
contemplated by the CBE Registration Statement (exclusive of any
amendment thereof) and the CBE Prospectus (exclusive of any supplement
thereto).
(j) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of WGC's debt securities by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Securities Act) or any notice
given of any intended or potential decrease
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in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(k) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the CBE Registration Statement
(exclusive of any amendment thereof) and the CBE Prospectus (exclusive
of any supplement thereto), there shall not have been (i) any change
or decrease specified in the letter or letters furnished by Cooper
referred to in paragraph (f) of this Section 9 or (ii) any change, or
any development involving a prospective change, in or affecting the
business or properties of Cooper 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 the DECS as contemplated by the CBE Registration Statement
(exclusive of any amendment thereof) and the CBE Prospectus (exclusive
of any supplement thereto).
(l) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of Cooper's debt securities by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act) or any
notice given of any intended or potential decrease in any such rating
or of a possible change in any such rating that does not indicate the
direction of the possible change.
(m) Subsequent to the Execution Time, there shall not have
occurred any of the following: (i) trading in Cooper's common stock
shall have been suspended by the Commission or the NYSE, trading in
WGC Common Stock shall have been suspended by the Commission or Nasdaq
or trading in securities generally on the NYSE, the American Stock
Exchange, Nasdaq or the over-the-counter market shall have been
suspended or limited or minimum prices shall have been established on
any of such exchanges or such markets by the Commission, by such
exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities, (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving
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the United States or there shall have been a declaration of a national
emergency or war by the United States or similar crisis or calamity or
(iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the reasonable judgment of the
Representatives, impracticable or inadvisable to proceed with the
delivery of the DECS.
(n) The DECS shall be approved for listing by the NYSE subject
to official notice of issuance.
(o) Prior to such Delivery Date, Cooper and WGC shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement which are not attached hereto as exhibits
shall be deemed to be in compliance with the provisions hereof only if they are
in form and substance reasonably satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution. (a) (i) WGC shall
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person, if any, who controls
any Underwriter within the meaning of either the Securities Act or the Exchange
Act, from and against any loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to the offering of the WGC Common
Stock in connection with the offering of the DECS), to which such Underwriter,
any such director, officer, employee or agent or such controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (A) any
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary WGC Prospectus, the WGC Registration Statement or the WGC
Prospectus or in any amendment or supplement thereto or (B) 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 shall reimburse
each Underwriter, each such director, officer, employee or agent and each such
controlling person
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for any legal or other expenses reasonably incurred by any such Underwriter,
any such director, officer, employee or agent or any such controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that WGC shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary WGC Prospectus, the WGC Registration
Statement or the WGC Prospectus or in any such amendment or supplement in
reliance upon and in conformity with written information furnished to WGC by
Cooper, or by the Representatives by or on behalf of any Underwriter,
specifically for inclusion therein; and provided further, that WGC shall not be
liable to any Underwriter under the indemnity agreement in this paragraph with
respect to any Preliminary WGC Prospectus or WGC Prospectus to the extent that
any such loss, claim, damage or liability of such Underwriter results from the
fact that such Underwriter sold DECS to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the WGC Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case where
such delivery is required by the Securities Act if WGC has previously furnished
copies thereof in sufficient quantity to such Underwriter and the loss, claim,
damage or liability of such Underwriter results from an untrue statement
contained in, or omission of a material fact from, the Preliminary WGC
Prospectus or the WGC Prospectus which was corrected in the WGC Prospectus as
then amended or supplemented (excluding documents incorporated by reference).
The foregoing indemnity agreement is in addition to any liability which WGC may
otherwise have.
(ii) Cooper shall indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either the
Securities Act or the Exchange Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which any
Underwriter, any such director, officer, employee or agent or any such
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (A) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary WGC Prospectus, the WGC
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Registration Statement or the WGC Prospectus or in any amendment or supplement
thereto or (B) 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, but in each case only to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with the written information furnished to WGC
by Cooper specifically for inclusion therein, and shall reimburse each
Underwriter, each such director, officer, employee or agent and any such
controlling person for any legal or other expenses reasonably incurred by any
such Underwriter, any such director, officer, employee or agent or any such
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that Cooper shall not be liable to
any Underwriter under the indemnity agreement in this paragraph with respect to
any Preliminary WGC Prospectus or WGC Prospectus to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold DECS to a person as to whom it shall be established that
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the WGC Prospectus as then amended or supplemented (excluding
documents incorporated by reference) in any case where such delivery is
required by the Securities Act if WGC has previously furnished copies thereof
in sufficient quantity to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement contained in, or
omission of a material fact from, the Preliminary WGC Prospectus or the WGC
Prospectus which was corrected in the WGC Prospectus as then amended or
supplemented (excluding documents incorporated by reference). The foregoing
indemnity agreement is in addition to any liability which Cooper may otherwise
have.
(iii) WGC shall indemnify and hold harmless Cooper, the directors,
officers, employees and agents of Cooper and each person, if any, who controls
Cooper within the meaning of either the Securities Act or the Exchange Act,
and, solely with respect to information furnished to WGC by Cooper in writing
specifically for inclusion therein, Cooper shall indemnify and hold harmless
WGC, the directors, officers, employees and agents of WGC and each person, if
any, who controls WGC within the meaning of either the Securities Act or the
Exchange Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to,
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30
any loss, claim, damage, liability or action relating to the offering of the
WGC Common Stock in connection with purchases and sales of the DECS), to which
the indemnified party, any such director, officer, employee or agent of such
indemnified party or such controlling person of such indemnified party may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (A) any
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary WGC Prospectus, the WGC Registration Statement or the WGC
Prospectus or in any amendment or supplement thereto or (B) 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 shall reimburse
each such indemnified party, each such director, officer, employee or agent of
such indemnified party and each such controlling person of such indemnified
party for any legal or other expenses reasonably incurred by any such
indemnified party, any such director, officer, employee or agent of such
indemnified party or any such controlling person of such indemnified party in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which WGC or
Cooper, as the case may be, may otherwise have.
(iv) Cooper shall indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either the
Securities Act or the Exchange Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of the DECS), to which such Underwriter, any such director,
officer, employee or agent or such controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (A) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary CBE
Prospectus, the CBE Registration Statement or the CBE Prospectus or in any
amendment or supplement thereto or (B) 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 shall reimburse each
Underwriter, each such director, officer, employee or agent
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31
and each such controlling person for any legal or other expenses reasonably
incurred by any such Underwriter, any such director, officer, employee or agent
or any such controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that Cooper shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission (x) made in any
Preliminary CBE Prospectus, the CBE Registration Statement or the CBE
Prospectus or in any such amendment or supplement in reliance upon and in
conformity with written information furnished to Cooper by the Representatives
by or on behalf of any Underwriter specifically for inclusion therein or (y)
made in any Preliminary WGC Prospectus (attached as Appendix A to a Preliminary
CBE Prospectus), the WGC Registration Statement or the WGC Prospectus (attached
as Appendix A to the CBE Prospectus) or in any such amendment or supplement
thereto, other than with respect to the information referred to in paragraph
(a)(ii); and provided further, that Cooper shall not be liable to any
Underwriter under the indemnity agreement in this paragraph with respect to any
Preliminary CBE Prospectus or CBE Prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from the fact that such
Underwriter sold DECS to a person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the CBE Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required by the
Securities Act if Cooper has previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement contained in, or omission of a
material fact from, the Preliminary CBE Prospectus or the CBE Prospectus which
was corrected in the CBE Prospectus as then amended or supplemented (excluding
documents incorporated by reference). The foregoing indemnity agreement is in
addition to any liability which Cooper may otherwise have.
(b) (i) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless Cooper, each of its directors (including any person
who, with his or her consent, is named in the CBE Registration Statement as
about to become a director of Cooper), each of its officers who signed the CBE
Registration Statement, and each person, if
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any, who controls Cooper within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which Cooper or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (A) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary CBE Prospectus, the CBE Registration
Statement or the CBE Prospectus or in any amendment or supplement thereto or
(B) 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, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to Cooper by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein, and shall reimburse Cooper and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by
Cooper or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to Cooper or any such director, officer or controlling person.
(ii) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless WGC, each of its directors (including any person
who, with his or her consent, is named in the WGC Registration Statement as
about to become a director of WGC), each of its officers who signed the WGC
Registration Statement, and each person, if any, who controls WGC within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which WGC or
any such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (A) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary WGC
Prospectus, the WGC Registration Statement or the WGC Prospectus or in any
amendment or supplement thereto or (B) 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, but in each case only to the extent
that the untrue statement or alleged untrue
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33
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to WGC by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein, and
shall reimburse WGC and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by WGC or any such director,
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to WGC or
any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party under Section 10(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. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under Section 10(a) or (b)
for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives shall have the right
to employ counsel to represent jointly the Representatives and those other
Underwriters and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against WGC or Cooper, as applicable, under this Section 10
if, in the reasonable judgment of the Representatives, it is advisable for the
Representatives and those other Underwriters and their respective controlling
persons to be
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34
jointly represented by separate counsel (it being understood that WGC or
Cooper, as the case may be, shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in
the same jurisdiction arising out of the same allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (other than local counsel which shall be engaged only for purposes of
appearing with such counsel in such jurisdictions in which such firm of
attorneys is not licensed to practice)), and in that event the fees and
expenses of such separate counsel shall be paid by WGC or Cooper, as the case
may be.
(d) If the indemnification provided for in this Section 10
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a) or (b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) if the indemnification relates to the Underwriters as an indemnifying or
indemnified party, (x) in such proportion as shall be appropriate to reflect
the relative benefits received by Cooper or WGC, as applicable, on the one hand
and the Underwriters on the other from the offering of the DECS or (y) if the
allocation provided by clause (i)(x) above is not permitted by applicable law
or if the indemnified party failed to give the notice required under Section
10(c), in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i)(x) above but also the relative fault of
Cooper or WGC, as applicable, on the one hand and the Underwriters on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations or (ii) if the indemnification relates to
Cooper and WGC as the respective indemnifying and indemnified parties (or vice
versa), in such proportion as shall be appropriate to reflect the relative
fault of Cooper or WGC, as applicable, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable principles. The
relative benefits received by Cooper or WGC, as applicable, on the one hand and
the Underwriters on the other with respect to such offering shall be deemed to
be in the same proportions as the total net proceeds from the offering of the
DECS
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35
pursuant to the CBE Registration Statement (before deducting expenses) received
by Cooper bears to the total underwriting discounts and commissions received by
the Underwriters with respect to the DECS purchased under this Agreement, in
each case as set forth in the table on the cover page of the CBE Prospectus
and, as between WGC and the Underwriters, WGC shall be deemed for this purpose
to have received such total net proceeds as received by Cooper. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by Cooper, WGC or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Cooper, WGC and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 10(d) were to be determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section
10(d) shall be deemed to include, for purposes of this Section 10(d), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the DECS underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 10(d) are several in proportion to their respective,
underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements
with respect to the public offering of the DECS set forth on the cover page of,
and under the caption "Plan of Distribution" in, the CBE Prospectus and on the
cover page of and under the caption "Plan of Distribution" in the WGC
Prospectus are correct and constitute the only information furnished in writing
to Cooper or WGC,
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36
respectively, by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the CBE Registration Statement and the CBE
Prospectus or the WGC Registration Statement and the WGC Prospectus,
respectively.
(f) The agreements contained in this Section 10 and the
representations, warranties and agreements of WGC in Sections 1 and 6 of this
Agreement, and of Cooper in Sections 2 and 7 of this Agreement, shall survive
the delivery of the DECS and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of any indemnified party.
11. Defaulting Underwriters. If, on either Delivery Date,
any Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the DECS which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number
of the Firm DECS set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of the Firm DECS set
forth opposite the names of all the remaining non-defaulting Underwriters in
Schedule 1 hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the DECS on such
Delivery Date if the total number of DECS which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of DECS to be purchased on such Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of DECS which it agreed to purchase on such Delivery Date pursuant
to the terms of Section 3 of this Agreement. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the DECS to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the DECS which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
Cooper or WGC, except that WGC and Cooper will continue to be liable for the
payment of expenses to the extent set forth in Section 8 of this Agreement.
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37
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to Cooper for damages caused by its
default. If other underwriters are obligated or agree to purchase the DECS of
a defaulting or withdrawing Underwriter, either the Representatives or Cooper
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for Cooper or counsel for the
Underwriters may be necessary in the CBE Registration Statement, the CBE
Prospectus or in any other document or arrangement.
12. Termination. The obligations of the Underwriters
hereunder may be terminated by the Representatives by giving notice as
hereinafter specified to Cooper (with a copy to WGC) prior to delivery of and
payment for the Firm DECS if, prior to that time, (i) Cooper or WGC shall have
failed, refused or been unable to perform, in any material respect, any
agreement on its part to be performed hereunder or (ii) any of the events
described in Section 9(i), 9(j), 9(k), 9(l) or 9(m) of this Agreement shall
have occurred. Any such termination shall be without liability of any party to
any other party except that the provisions of Sections 10 and 13 of this
Agreement shall at all times be effective. If the Representatives elect to
terminate this Agreement as provided in this Section 12, the Representatives
shall promptly notify Cooper by telephone or telegram, confirmed by letter
(with a copy to WGC).
13. Reimbursement of Underwriters' Expenses. If (a) Cooper
shall fail to tender the DECS for delivery to the Underwriters for any reason
permitted under this Agreement or (b) the Underwriters shall decline to
purchase the DECS for any reason permitted under this Agreement (including the
termination of this Agreement pursuant to Section 12 of this Agreement), WGC
and Cooper shall reimburse the Underwriters for the reasonable fees and
expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of the DECS, and upon demand WGC and Cooper shall pay the full amount
thereof to the Representatives. If this Agreement is terminated pursuant to
Section 11 of this Agreement by reason of the default of one or more of the
Underwriters, neither WGC nor Cooper shall be obligated to reimburse any
Underwriter on account of those expenses.
14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
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(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Salomon Brothers Inc, Seven
World Trade Center, New York, New York 10048, Attention: Legal
Department;
(b) if to WGC, shall be delivered or sent by mail, telex or
facsimile transmission to Wyman-Gordon Company, 244 Worcester Street,
Grafton, Massachusetts 01536-8001, Attention: General Counsel;
(c) if to Cooper, shall be delivered or sent by mail, telex or
facsimile transmission to Cooper Industries, Inc., 1001 Fanin, Suite
4000, Houston, Texas 77001 Attention: General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 10(c)
of this Agreement shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its acceptance
telex to the Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof. Cooper
and WGC shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by the Representatives.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, WGC, Cooper
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of WGC and Cooper
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 10 shall be deemed to be for the benefit of
directors of Cooper or WGC, as applicable, officers of Cooper or WGC, as
applicable, who have signed the CBE Registration Statement or the WGC
Registration Statement, as applicable, and any person controlling Cooper or
WGC, as applicable. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section 15, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
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16. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on which the
NYSE is open for trading and (b) "subsidiary" has the meaning set forth in Rule
405 of the Rules and Regulations.
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
18. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
19. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among
Cooper, WGC and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
COOPER INDUSTRIES, INC.
By:________________________________
Name:
Title:
WYMAN-GORDON COMPANY
By:________________________________
Name:
Title:
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Accepted:
SALOMON BROTHERS INC
MERRILL LYNCH & CO.
SCHRODER WERTHEIM & CO. INCORPORATED
For itself and as Representatives
for each of the several Underwriters
named in Schedule 1 hereto
By: SALOMON BROTHERS INC
By:_________________________
Authorized Representative
41
SCHEDULE 1
Number of
Underwriters DECS
-----------
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . . .
Merrill Lynch & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Schroder Wertheim & Co. Incorporated . . . . . . . . . . . . . . . . . . .
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000,000
===========
42
EXHIBIT A
December , 1995
Salomon Brothers Inc
Merrill Lynch & Co.
Schroder Wertheim & Co. Incorporated
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
I am General Counsel for Wyman-Gordon Company, a Massachusetts
corporation (the "Company"), and have acted as its counsel in connection with
the public offering of 16,500,000 shares (the "Shares") of Common Stock, par
value $1.00 per share, (the "Common Stock") that are mandatorily exchangeable
at the option of Cooper Industries, Inc., an Ohio corporation ("Cooper") upon
the maturity of Coopers % Exchangeable Notes Due December , 1998 (the
"DECS") being issued by Cooper pursuant to the Underwriting Agreement, dated
December , 1995 (the "Underwriting Agreement"), among you, as representatives
of the several underwriters (the "Underwriters"), the Company and Cooper.
This opinion is being furnished to you pursuant to Section
9(c) of the Underwriting Agreement. Capitalized terms used but not defined
herein shall have the meanings set forth in the Underwriting Agreement.
In my capacity as counsel to the Company, I have examined (i)
signed copies of the Company's Registration Statement on Form S-3 (File No.
33-63459) relating to the Shares as filed with the Securities and Exchange
Commission (the "Commission") on October 17, 1995 under the Securities Act of
1933, as amended (the "Act") as amended by Amendment No. 1 thereto filed with
the Commission on November 24, 1995, Amendment No. 2 thereto filed with the
Commission on November 30, 1995, and Amendment No. 3 thereto filed with the
Commission on December , 1995, including information deemed to be a part of
the Registration Statement at the time of effectiveness pursuant to Rule 430A
of the General Rules and Regulations under the Act (the "Rules and
Regulations") (such Registration Statement as so amended, being hereinafter
referred to as the "Registration Statement"); and (ii) the final prospectus
relating to the Shares in the form filed with the Commission on December ,
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2
1995, pursuant to Rule 424(b) of the Rules and Regulations (such final
prospectus being hereinafter referred to as the "Prospectus"). I have also
examined, among other things, the Restated Articles of Organization of the
Company (the "Articles"), the By-laws of the Company (the "By-laws"), the
corporate records of the Company, and the Underwriting Agreement. In addition,
as to matters of fact not directly within my actual knowledge, I have examined
and relied upon certificates of officers of the Company, certificates and
telegrams of certain public officials and such other records and instruments
and made such investigations, as I have considered necessary and proper in
order that I may render an informed opinion in connection with the matters
hereinafter set forth. I have assumed the genuineness of all signatures
(except those of the Company) on, and the authenticity of, all documents and
instruments submitted to me as originals and the conformity to original
documents of all documents submitted to me as copies, (ii) due authorization,
execution and delivery by the parties thereto, other than the Company and its
subsidiaries, of all such documents and instruments examined by me, and (iii)
that, to the extent that any such documents and instruments purport to
constitute agreements of such other parties, they constitute valid and binding
obligations of such other parties. As to matters involving the application of
laws of any jurisdiction other than the Commonwealth of Massachusetts or the
United States, to the extent I deemed proper I have relied upon the opinions of
other counsel of good standing who I believe to be reliable. Copies of such
opinions have been delivered to you.
Based upon the foregoing, I am of the opinion that:
(i) Each of the Company and Wyman-Gordon Forgings, Inc., a
Delaware corporation; Wyman-Gordon Limited, an English corporation;
Wyman-Gordon Investment Castings, Inc., a Delaware corporation;
Precision Founders, Inc., a California corporation; Wyman-Gordon
Composite Technologies, Inc., a California corporation; and Scaled
Composites, Inc., a California corporation (each a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated and 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 to own its properties and conduct its
business as described in the Prospectus, and is duly
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3
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification except where the failure to be so qualified would not
have a material adverse effect on the Company and its Subsidiaries,
taken as a whole.
(ii) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus or on Schedule A hereto, all outstanding shares of
capital stock of the Subsidiaries are owned by the Company either
directly or through wholly owned Subsidiaries free and clear of any
perfected security interest and, to my knowledge, after due inquiry,
any other security interests, claims, liens or encumbrances.
(iii) The Company's authorized equity capitalization is as
set forth in the Prospectus and the Common Stock conforms to the
description thereof contained in the Prospectus.
(iv) To my knowledge, after due inquiry, 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 Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(v) The Registration Statement has become effective under the
Securities Act. 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 the
best of my knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings for
that purpose have been instituted or threatened. The Registration
Statement, as of its effective date, and the Prospectus, as of its
date, appeared on their face to be appropriately responsive in all
material respects to the requirements
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4
of the Act and the Rules and Regulations, except that, in each case, I
express no opinion as to the financial statements, schedules and other
financial or statistical information and data included in or excluded
from the Registration Statement and the Prospectus or incorporated by
reference in the Registration Statement;
(vi) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(vii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have been
obtained under the Securities Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the DECS by the Underwriters and such other
approvals as have been obtained;
(viii) Neither the exchange of the Common Stock at maturity
of the DECS nor the consummation of any other of the transactions
contemplated by the Underwriting Agreement nor the fulfillment of the
terms thereof to be performed by the Company will conflict with,
result in a breach or violation of, or constitute a default under any
law or the Articles or By-laws of the Company or the terms of any
indenture or other agreement or instrument known to me and to which
the Company or any of its Subsidiaries is a party or bound or any
judgment, order or decree known to me to be applicable to the Company
or any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its Subsidiaries;
(ix) Other than Cooper, no holders of securities of the
Company have contractual rights to the registration of such securities
under the Registration Statement;
(x) The offering of the Shares pursuant to the Registration
Statement and the Prospectus and the compliance by the Company with
all of the provisions of the Underwriting Agreement and the
consummation of the transactions contemplated thereby will not
conflict with or result in a breach or violation of, or
46
5
constitute a default (with or without due notice or lapse of time or
both) under (a) the Articles or By-laws, (b) any loan or credit
agreement, indenture, deed of trust, mortgage, note or other agreement
or instrument relating to borrowed money known to me and to which the
Company or any of its Subsidiaries is a party or bound or (c) any
judgment, order or decree known to me to be applicable to the Company
or any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its Subsidiaries, except in
the case of clause (b) for such conflicts, breaches, violations or
defaults (i) as to which requisite waivers or consents have been
obtained, (ii) the obtaining of which would have been waived by the
other parties thereto, (iii) which would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, prospects or results of operations of the Company
and its Subsidiaries taken as a whole, and (iv) as have otherwise been
disclosed in the Prospectus, nor will such action conflict with or
violate any statute, rule, regulation, order, judgment or decree
applicable to the Company or its Subsidiaries or by which the Company
or its Subsidiaries is bound or to which any of the property or assets
of the Company or its Subsidiaries is subject except for such
conflicts or violations which would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, prospects or results of operations of the Company
and its Subsidiaries taken as a whole.
(xi) To my knowledge, no consent, approval, authorization or
order of or qualification, registration or filing with, any
Massachusetts or U.S. Federal regulatory body or authority having
jurisdiction over the Company is required to be obtained by the
Company for the consummation of the transactions contemplated by the
Underwriting Agreement, other than (a) as disclosed in the Prospectus,
(b) such as have been obtained under the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and (c) such as
may be required under the blue sky laws of any jurisdiction in
connection with the offering of the Shares pursuant to the
Registration Statement and the Prospectus.
(xii) The Company is not required to be registered,
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6
and is not regulated, as an "investment company" as such term is
defined under the Investment Company Act of 1940.
I have participated in conferences with officers and
representatives of the Company, representatives of the independent public
accountants of the Company, representatives of Cooper and with your
representatives and your counsel at which the contents of the Registration
Statement and the Prospectus were discussed. Based on such participation and
review as well as my position as Vice President, General Counsel and Clerk of
the Company, no information has come to my attention that causes me to believe
that (i) the Registration Statement, as 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, or (ii) the Prospectus, as of its date and as of 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 making the above
statement, I am not passing upon and do not assume responsibility for the
accuracy, completeness or fairness of the statements contained therein, and I
have not independently verified the accuracy, completeness or fairness of such
statements. In addition, and without limiting the foregoing I express no
opinion or belief as to financial statements, schedules and other financial and
statistical data included therein or excluded therefrom or incorporated by
reference therein.
I am a member of the bar of the Commonwealth of Massachusetts.
I do not intend to nor do I express any opinion as to matters governed by any
laws other than the laws of the Commonwealth of Massachusetts and the Federal
laws of the United States of America.
This opinion is rendered to you and is for your benefit in
your capacity as representatives of the Underwriters in connection with the
closing under the
48
7
Underwriting Agreement. This opinion is not to be circulated, quoted or
otherwise relied upon by any person without my prior written consent.
Very truly yours,
Wallace F. Whitney, Jr.
Vice President,
General Counsel and Clerk
49
EXHIBIT B
[Letterhead of Skadden, Arps, Slate, Meagher & Flom]
December , 1995
Salomon Brothers Inc
Merrill Lynch & Co.
Schroder Wertheim & co. Incorporated
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Re Underwritten Public Offering of %
Exchangeable Notes Due , 1998 of
Cooper Industries, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Cooper Industries, Inc.,
an Ohio corporation (the "Company"), in connection with the underwritten public
offering by the Company of its % Exchangeable Notes Due , 1998 (the
"DECS") pursuant to the Underwriting Agreement, dated December , 1995 (the
"Underwriting Agreement"), among you, as representatives of the several
underwriters (the "Underwriters"), the Company and Wyman-Gordon Company
("WGC"). The DECS are exchangeable by the Company at their maturity for shares
of common stock, par value $1.00 per share, of WGC (the "Common Stock") as
described in the Registration Statement referred to below.
This opinion is being furnished to you pursuant to Section
9(d) of the Underwriting Agreement.
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Company's Registration Statement on Form S-3 (File No.
33-63457) relating to 16,500,000 DECS as filed with the Securities and Exchange
Commission (the "Commission") on October 17, 1995 under the Securities Act of
1933, as amended (the "Act"), as amended by Amendment No. 1 thereto filed with
the Commission on November 24, 1995, Amendment No. 2 thereto filed with the
Commission on November 30, 1995 and Amendment No. 3 thereto filed with the
Commission on December , 1995, including information deemed to be a part of
the Registration Statement at the time of effectiveness
50
2
pursuant to Rule 430A of the General Rules and Regulations under the Act (the
"Rules and Regulations") (such Registration Statement as so amended, being
hereinafter referred to as the "Registration Statement"); (ii) the final
prospectus relating to the DECS in the form filed with the Commission on
December , 1995 pursuant to Rule 424(b) of the Rules and Regulations (such
final prospectus being hereinafter referred to as the "Prospectus"); (iii) an
executed copy of the Indenture, dated as of December , 1995, between the
Company and Texas Commerce Bank National Association, as Trustee (the
"Trustee"); (iv) the form of the DECS; (v) an executed copy of the Underwriting
Agreement; and (vi) conformed copies of the Statement of Eligibility and
Qualification on Form T-1 of the Trustee filed as an exhibit to the
Registration Statement (the "Form T-1"). We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Company and such agreements, certificates of public officials,
certificates of officers or other representatives of the Company and others,
and such other agreements, documents, instruments, certificates and records as
we have deemed necessary or appropriate as a basis for the opinions set forth
below.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of executed documents, we have assumed that the parties thereto had
the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed (a) the due authorization by all requisite
action, corporate or other, execution and delivery by such parties of such
documents and the taking of all other requisite action by the parties thereto
and (b) except as to the Company with respect to the Indenture and the DECS,
the validity and binding effect thereof. As to any facts material to the
opinions expressed herein which were not independently established or verified,
we have relied upon oral or written statements and representations of officers
and other representatives of the Company and others.
In rendering the opinions set forth in paragraphs (ii) and
(iii) below, we have assumed that (a) the execution and delivery by the Company
of the Indenture and the DECS
51
3
and the performance by the Company of its obligations thereunder do not and
will not violate or conflict with any agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject or any applicable judgment, order
or decree and (b) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by the Underwriting Agreement, 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
DECS by the Underwriters and such other approvals as have been obtained.
Members of our firm are admitted to the bar in the State of
New York and we do not express any opinion as to the laws of any other
jurisdiction other than the laws of the United States of America to the extent
referred to specifically herein.
Based upon and subject to the foregoing, we are of the opinion
that:
(i) The DECS conform in all material respects to the
description thereof contained in the Prospectus.
(ii) The Indenture has been qualified under the Trust
Indenture Act of 1939, as amended, and constitutes a legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that the
enforceability thereof may be limited by (a) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(iii) When executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, the DECS will be
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture enforceable against the Company in
accordance with their terms, except to the extent that enforceability
thereof may be limited by
52
4
(a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
(iv) The Registration Statement, as of its effective date,
and the Prospectus, as of its date, appeared on their face to be
appropriately responsive in all material respects to the requirements
of the Act and the Rules and Regulations, except that, in each case,
we express no opinion as to: (a) the financial statements, schedules
and other financial or statistical information or data included in or
excluded from the Registration Statement and the Prospectus, (b) the
documents filed by WGC with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Registration Statement, and (c) the
Form T-1, and we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus except to the extent set
forth in paragraph (i) above.
We have been advised by the Commission that the Registration
Statement was declared effective under the Act at on December , 1995, and,
to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no proceedings
therefor have been instituted or are pending before the Commission; any
required filing of the Prospectus has been made in the manner and within the
time period required by Rule 424(b) of the Rules and Regulations.
In addition, we have participated in conferences with officers
and other representatives of the Company and WGC, representatives of the
independent public accountants for the Company and with your representatives
and your counsel at which the contents of the Registration Statement and the
Prospectus and related matters were discussed. Because the primary purpose of
our professional engagement was not to establish or confirm factual matters or
financial, accounting or statistical matters and because of the wholly or
partially nonlegal character of many of the statements contained in the
Registration Statement and the Prospectus, we are not passing upon, and do not
assume any
53
5
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and we make no
representation that we have independently verified the accuracy, completeness
or fairness of such statements (other than to the extent set forth in paragraph
(i) hereof). Without limiting the foregoing, we assume no responsibility for,
and have not independently verified, the accuracy, completeness or fairness of
the financial statements and schedules and other financial and statistical data
included in or excluded from the Registration Statement, and we have not
examined the accounting, financial or statistical records from which such
financial statements, schedules and data are derived. We note that, although
certain portions of the Registration Statement (including financial statements
and schedules) 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 including, without limitation, such financial
statements or schedules or other financial or statistical data included
therein.
On the basis of the foregoing, but without independent check
or verification (except as aforesaid), we confirm to you that no information
has come to our attention which has 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, or that the
Prospectus, as of the date hereof, contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that we
express no opinion or belief as to (i) the exhibits (other than Exhibit 5) to
the Registration Statement and (ii) the documents filed by WGC pursuant to the
Exchange Act and incorporated by reference therein.
This opinion is furnished to you solely for your benefit in
connection with the closing today under the Underwriting Agreement and is not
to be used, circulated, quoted or otherwise referred to for any other purpose
or relied upon by any other person without our express written permission.
Very truly yours,
54
EXHIBIT C
[Letterhead of Skadden, Arps, Slate, Meagher & Flom]
, 1995
SALOMON BROTHERS INC
MERRILL LYNCH & CO.
SCHRODER WERTHEIM & CO. INCORPORATED
As Representatives for each of
the Underwriters Listed on
Schedule I to the Underwriting Agreement
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
We have acted as tax counsel to Cooper Industries, Inc., a
corporation organized under the laws of Ohio (the "Company"), in connection
with the issuance and sale by the Company of its % Exchangeable Notes Due 199
, the principal amount of which is mandatorily exchangeable at maturity into
shares of common stock, par value $1.00 per share, of Wyman-Gordon Company, a
corporation organized under the laws of Massachusetts (or, at the Company's
option, cash) (the "DECS") described in the Prospectus dated , 1995
(the "Prospectus") in the form filed with the Securities and Exchange
Commission on 1995. You have requested our opinion regarding the
discussion of certain Federal income tax consequences of an investment in the
DECS by U.S. Holders (as defined in the Prospectus), which discussion is set
forth under the heading "Certain Federal Income Tax Considerations" in the
Prospectus.
In rendering our opinion, we have reviewed the Prospectus and
such other materials as we have deemed necessary or appropriate as a basis for
our opinion. In addition, we have considered the applicable provisions of the
Internal Revenue Code of 1986, as amended, Treasury regulations, pertinent
judicial authorities, rulings of the Internal Revenue Service, and such other
authorities as we have considered relevant.
Based upon the foregoing, it is our opinion that, under
current law, the discussion presented under the heading "Certain Federal Income
Tax Considerations" in the Prospectus, although general in nature, is an
accurate summary of the material Federal income tax consequences
55
2
relevant to an investment in the DECS by U.S. Holders. The Federal income tax
consequences of an investment in the DECS by a U.S. Holder will depend upon
that holder's particular situation and we express no opinion as to the
completeness of the discussion set forth in "Certain Federal Income Tax
Considerations" as applied to any particular holder.
The opinion is being furnished, pursuant to Section 9(d) of
the Underwriting Agreement, dated 1995, among the Company, Wyman-Gordon
Company and you, in connection with the closing under the Underwriting
Agreement occurring on 1995. This opinion is solely for your benefit
and is not to be used, circulated, quoted or otherwise referred to for any
purpose without our express written permission.
Very truly yours,
56
EXHIBIT D
[Letterhead of Cooper Industries, Inc.]
, 1995
SALOMON BROTHERS INC
MERRILL LYNCH & CO.
SCHRODER WERTHEIM & CO. INCORPORATED
c/o SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
I have acted as counsel for Cooper Industries, Inc., an Ohio
corporation (the "Company"), in connection with the underwritten public
offering by the Company of % Exchangeable Notes Due , 199 (the "DECS")
pursuant to the Underwriting Agreement, dated , 1995 (the
"Underwriting Agreement"), among you, as representatives of the several
underwriters (the "Underwriters"), the Company and Wyman-Gordon Company
("WGC"). The DECS are exchangeable by the Company at their maturity for shares
of common stock, par value $1.00 per share, of WGC (the "WGC Common Stock") as
described in the CBE Registration Statement referred to below.
This opinion is being furnished to you pursuant to Section 9
(e) of the Underwriting Agreement. Capitalized terms used but not defined
herein shall have the meanings set forth in the Underwriting Agreement.
In my capacity as counsel, I have examined (i) signed copies
of the Company's Registration Statement on Form S-3 (File No. 33- )
relating to 16,500,000 DECS as filed with the Securities and Exchange
Commission (the "Commission") on , 1995, under the Securities Act of
1933, as amended (the "Act") [list amendments if applicable], including
information deemed to be a part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A of the General Rules and Regulations under
the Act (the "Rules and Regulations") (such Registration Statement as so
amended, being hereinafter referred to as the "CBE Registration Statement") ;
and
57
(ii) the final prospectus relating to the DECS in the form filed with the
Commission on , 1995, pursuant to Rule 424(b) of the Rules and
Regulations (such final prospectus being hereinafter referred to as the "CBE
Prospectus"). I have also examined, among other things, the corporate records
of the Company, the form of the DECS, the Underwriting Agreement, the Indenture
and conformed copies of the Statement of Eligibility and Qualification on Form
T-1 of the Trustee filed as an exhibit to the CBE Registration Statement (the
"Form T-1"). In addition, as to matters of fact not directly within my actual
knowledge, I have examined and relied upon certificates of officers of the
Company, certificates and telegrams of certain public officials and such other
records and instruments and made such investigations, as I have considered
necessary and proper in order that I may render an informed opinion in
connection with the matters hereinafter set forth. I have assumed the
genuineness of all signatures (except those of the Company) on, and the
authenticity of, all documents and instruments submitted to me as originals and
the conformity to original documents of all documents submitted to me as
copies, (ii) due authorization, execution and delivery by the parties thereto,
other than the Company and its subsidiaries, of all such documents and
instruments examined by me, and (iii) that, to the extent that any such
documents and instruments purport to constitute agreements of such other
parties, they constitute valid and binding obligations of such other parties.
Based upon the foregoing, I am of the opinion that:
(i) The Company and its Principal Subsidiaries have been duly
incorporated and are existing corporations in good standing under the
laws of their respective jurisdictions of incorporation, with
corporate power and authority to own or lease their properties and to
transact all business conducted by them as described in the CBE
Prospectus; the Company and its Principal Subsidiaries are duly
qualified to do business as foreign corporations in good standing in
all other jurisdictions in which their respective ownership or lease
of property or the conduct of their respective businesses requires
such qualification, except to the extent that the failure to be so
qualified or to be in good standing, considering all such cases in the
aggregate, would not have a material adverse effect on the business,
properties, financial
58
3
position or results of operations of the Company and its Principal
Subsidiaries taken as a whole.
(ii) All the outstanding shares of capital stock of each
Principal Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set
forth in the CBE Prospectus, all outstanding shares of capital stock
of the Principal Subsidiaries are owned by the Company either directly
or through wholly owned subsidiaries free and clear of any perfected
security interest and, to the best of my knowledge, after due inquiry,
any other security interests, claims, liens or encumbrances.
(iii) The DECS conform to the description thereof contained
in the CBE Prospectus.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company.
(v) The DECS have been duly authorized by requisite corporate
action on the part of the Company.
(vi) To the best of my knowledge, 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
CBE Registration Statement which is not adequately disclosed in the
CBE Prospectus.
(vii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(viii) To the best of my knowledge, no consent, approval,
authorization or order of or qualification, registration or filing
with, any Ohio or U.S. Federal regulatory body or authority having
jurisdiction over the Company is required to be obtained by the
Company for the consummation of the transactions contemplated by the
Underwriting Agreement, other than (a) as disclosed in the CBE
Prospectus, (b) such as have been obtained under the Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
(c) such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
DECS by the Underwriters, as to
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which I express no opinion, and (d) as would not have a material
adverse effect on the ability of the Company to consummate the
transactions contemplated by the Underwriting Agreement.
(ix) Neither the execution and delivery of the Indenture, the
issue and sale of the DECS, nor the consummation of any other of the
transactions contemplated by the Underwriting Agreement nor the
fulfillment of the terms thereof will conflict with or result in a
breach or violation of, or constitute a default (with or without due
notice or lapse of time or both) under, (a) the charter or by-laws of
the Company, (b) any loan or credit agreement, indenture, deed of
trust, mortgage, note or other agreement or instrument relating to
borrowed money known to me and to which the Company or any of its
subsidiaries is a party or bound or (c) any judgment, order or decree
known to me to be applicable, to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company,
or any of its subsidiaries, except in the case of clause (b) for such
conflicts, breaches, violations or defaults (i) as to which requisite
waivers or consents have been obtained, (ii) the obtaining of which
has been waived by the other parties thereto, (iii) which would not,
individually or in the aggregate, have a material adverse effect on
the condition (financial or other), business, prospects or results of
operations of the Company and its subsidiaries taken as a whole, and
(iv) as have otherwise been disclosed in the Prospectus, nor will such
action conflict with or violate any Ohio corporate or United States
Federal law, rule, regulation, order, judgment or decree applicable to
the Company or its subsidiaries or by which the Company or its
subsidiaries is bound or to which any of the property or assets of the
Company or its subsidiaries is subject except for such conflicts or
violations which would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or other),
business, prospects or results of operations of the Company and its
subsidiaries taken as a whole.
(x) To the best of my knowledge, no holders of securities of
the Company have rights to the registration of such securities under
the CBE Registration Statement.
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(xi) The CBE Registration Statement, as of its effective date,
and the CBE Prospectus, as of its date, appeared on their face to be
appropriately responsive in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder,
except that, in each case, I express no opinion as to: (i) the
financial statements, schedules and other financial or statistical
information and data included in or excluded from the CBE Registration
Statement and the CBE Prospectus, (ii) the documents filed by WGC
pursuant to the Exchange Act and incorporated by reference in the
Registration Statement, and (iii) the Form T-1, and I do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the CBE Registration Statement and the CBE
Prospectus.
I have been advised by the Commission that the CBE
Registration Statement was declared effective under the Act at on
1995, and to my knowledge, no stop order suspending the effectiveness of the
CBE Registration Statement has been issued under the Act and no proceedings
therefor have been instituted or are pending before the Commission.
Furthermore, pursuant to Rule 424(b) of the Rules and Regulations, any required
filing of the CBE Prospectus or any supplement thereto has been made in the
manner and within the time period required by Rule 424(b).
I have participated in conferences with officers and
representatives of the Company, representatives of the independent public
accountants of the Company, representatives of WGC and with your
representatives and your counsel at which the contents of the CBE Registration
Statement and the CBE Prospectus were discussed. Based on such participation
and review as well as my position as Senior Vice President, General Counsel and
Secretary of the Company, no information has come to my attention that causes
me to believe that (i) the CBE 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, or (ii) the Prospectus, as of its date and
as of 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 making the above statement, I am not passing upon and do not
assume responsibility for the
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6
accuracy, completeness or fairness of the statements contained therein,
and other than as stated in paragraph (iii) above, I have not independently
verified the accuracy, completeness or fairness of such statements. In
addition, and without limiting the foregoing I express no opinion or belief as
to (w) financial statements, schedules and other financial and statistical data
included therein or excluded therefrom, (x) the WGC Prospectus attached as
Appendix A to the CBE Prospectus included in the CBE Prospectus and CBE
Registration Statement, (y) the documents filed by WGC pursuant to the Exchange
Act and incorporated by reference therein, and (z) the Form T-1.
I am a member of the bar of the State of Texas. I do not
intend to nor do I express any opinion as to matters governed by any laws other
than the laws of the State of Texas, the General Corporation Law of the State
of Ohio and the Federal laws of the United States of America.
This opinion is rendered to you and is for your benefit in
your capacity as representatives of the Underwriters in connection with the
closing under the Underwriting Agreement. This opinion is not to be
circulated, quoted or otherwise relied upon by any other person without my
prior written consent.
Very truly yours,
Diane K. Schumacher
Senior Vice President, General
Counsel and Secretary
62
EXHIBIT E
Dear Sirs:
We have audited the consolidated balance sheet of Cooper
Industries, Inc. (the "Company") as of ; and the related statements of
consolidated results of operations, changes in shareholders' equity, and cash
flows for each of the three years in the period ended , incorporated
by reference in the Company's Annual Report on Form 10-K for the year ended ,
and incorporated by reference in the Registration Statement (No. ) on Form
S-3 filed by the Company under the Securities Act of 1933 (the "Act"); our
report with respect thereto is also incorporated by reference in such
Registration Statement, herein referred to as the "Registration Statement."
In connection with the Registration Statement:
1. We are independent auditors with respect to the Company
within the meaning of the Act and the applicable published rules and
regulations thereunder.
2. In our opinion, the consolidated financial statements
audited by us and incorporated by reference in the Company's Annual Report on
Form 10-K at and incorporated by reference in the Registration Statement,
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Securities Exchange Act of 1934 (the "Exchange
Act") and the related published rules and regulations thereunder.
3. We have not audited any financial statements of the
Company as of any date or for any period subsequent to . The
purpose (and therefore the scope) of our audit for the year ended
was to enable us to express our opinion on the consolidated financial
statements at , and for the year then ended, but not on the
financial statements for any interim period within such year. Therefore, we
are unable to express and do not express an opinion on: the unaudited
consolidated balance sheet at , the unaudited statements of
consolidated results of operations and cash flows for the three-month periods
ended , incorporated by reference in the Registration Statement from
the Company's Quarterly Report on Form 10-Q for the quarter ended
, or on the financial position, results of operations or cash flows
as of any date or for any period subsequent to .
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4. For purposes of this letter, we have read the minutes of
meetings of the shareholders, the Board of Directors, and the Executive,
Finance and Audit Committees of the Company as set forth in the minute books
through
, officials of the Company having advised us that the minutes of all
such meetings through that date were set forth therein and have carried out
other procedures to as follows:
a. With respect to the three-month periods ended ,
we have:
(1) performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in SAS
71, Interim Financial Information, on the unaudited
consolidated financial statements for these periods, described
in 3. above, included in the Company's Quarterly Report on
Form 10-Q for the quarter ended , incorporated by
reference in the Registration Statement; and
(2) inquired of certain officials of the Company who
have responsibility for financial and accounting matters as to
whether the unaudited consolidated financial statements
referred to under a.(1) above comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations.
b. With respect to the period from to ,
we have:
(1) read the unaudited operating results of the
Company for the -month and -month accounting periods ended
and , copies of which are not attached, officials
of the Company having advised us that no consolidated
financial statements as of any date or for any period
subsequent to were available except for the unaudited
operating results for the -month and -month accounting
periods ended ;
(2) inquired of certain officials of the
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Company who have responsibility for financial and accounting
matters as to whether the unaudited operating results referred
to under b.(1) are stated on a basis substantially consistent
with that of the audited consolidated financial statements
incorporated by reference in the Registration Statement; and
(3) inquired of certain officials of the Company who
have responsibility for financial and accounting matters as to
whether: (i) at , there were any increases in the
long-term debt of the Company and subsidiaries consolidated
(except for any increase which occurs as a result of changes
in the classification of outstanding commercial paper or the
issuance of the Company's
Series Medium Term Notes) or any decreases in
the aggregate amount of the shareholders' equity of the
Company (calculated exclusive of the translation component) as
compared with the amounts shown in the
unaudited consolidated balance sheet incorporated by reference
in the Registration Statement (except in each case, as
applicable, for any decrease which occurs as a result of the
declaration of scheduled dividends on common stock not in
excess of $0.33 per share per quarter, or (ii) for the period
from to , there was any
decrease, as compared with the corresponding period in the
preceding year, in consolidated revenues from continuing
operations, income from continuing operations before Federal
income tax, or in net income of the Company.
The foregoing procedures do not constitute an audit conducted
in accordance with generally accepted auditing standards. Also, they would not
necessarily reveal matters of significance with respect to the comments in the
following paragraph. Accordingly, we make no representations as to the
sufficiency of the foregoing procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing
procedures that caused us to believe that:
a. any material modifications should be made to the unaudited
consolidated financial statements
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described in 3. above, incorporated by reference in the Registration
Statement, for them to be in conformity with generally accepted
accounting principles;
b. the unaudited consolidated financial statements referred to
in 3. above do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it applies
to Form 10-Q and the related published rules and regulations; or
c. (i) at , there were any increases in the
long-term debt of the Company and subsidiaries consolidated (except
for any increase which occurs as a result of changes in the
classification of outstanding commercial paper or the issuance of the
Company's Series Medium Term Notes) or any decreases in
the aggregate amount of the shareholders' equity of the Company
(calculated exclusive of the translation component) as compared with
the amounts shown in the unaudited consolidated balance
sheet incorporated by reference in the Registration Statement (except
in each case, as applicable, for any decrease which occurs as a result
of the declaration of scheduled dividends on common stock not in
excess of $0.33 per share per quarter, or (ii) for the period from
to , there was any decrease, as compared with the
corresponding period in the preceding year, in consolidated revenues
from continuing operations, income from continuing operations before
Federal income tax, or in net income of the Company.
6. For purposes of this letter, we have read the following as
set forth in the Registration Statement on the indicated page.
Item No. Page No. Description
-------- -------- -----------
a. "Ratio of Earnings to Fixed Charges (Unaudited)." The
amounts in the table.
7. Our audits of the consolidated financial statements for
the periods referred to in the introductory paragraph of this letter comprised
audit tests and procedures deemed necessary for the purpose of expressing an
opinion on such financial statements taken as a whole. For
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none of the periods referred to therein, or any other period did we perform
audit tests for the purpose of expressing an opinion on individual balances of
accounts or summaries of selected transactions such as enumerated above and,
accordingly, we do not express an opinion thereon.
8. However, for purposes of this letter, we have performed
the following procedures enumerated below which was applied as indicated with
respect to the information identified in 6. above.
Item in 6. above Procedures and Findings
---------------- -----------------------
a. Ratio of Earnings to Fixed Charges (Unaudited)
----------------------------------------------
We compared the amounts in the table to a schedule prepared by
the Company and found them to be in agreement.
9. It should be understood that we make no representations as
to questions of legal interpretation or as to the sufficiency for your purposes
of the procedure enumerated in the preceding paragraph; also, such procedure
would not necessarily reveal any material misstatement of the information
identified in 6. above. Further, we have addressed ourselves solely to the
foregoing data as set forth in the Registration Statement or the Prospectus
included therein, and make no representations as to the adequacy of disclosure
or as to whether any material facts have been omitted.
10. This letter is solely for the information of the
addressees and to assist the underwriters in conducting and documenting their
investigation of the affairs of the Company in connection with the offefing of
the securities covered by the Registration Statement, and it is not to be used,
circulated, quoted, or otherwise referred to within or without the underwriting
group for any other purpose, including, but not limited to, the registration,
purchase or sale of securities, nor is it to be filed with or referred to in
whole or in part in the Registration Statement or any other document, except
that reference may be made to it in
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the underwriting agreement or any list of closing documents pertaining to the
offering of the securities covered by the Registration Statement.
Very truly yours,