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Exhibit 1.1
Draft of May 31, 1995
BFGOODRICH CAPITAL
___% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A ("QUIPS")
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED BY
THE B.F.GOODRICH COMPANY
Underwriting Agreement
, 1995
Goldman, Sachs & Co.,
As representatives of the several Underwriters
named in Schedule I hereto,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
BFGoodrich Capital, a trust formed under the laws of the State of
Delaware (the "Trust") and The B.F.Goodrich Company, a New York corporation, as
depositor of the Trust and as guarantor (the "Guarantor"), propose subject to
the terms and conditions stated herein, that the Trust issue and sell to the
Underwriters named in Schedule 1 hereto (the "Underwriters"), an aggregate of
4,400,000 preferred securities (the "Securities") of ____% Cumulative Quarterly
Income Preferred Securities, Series A (liquidation preference $25 per preferred
security) representing undivided beneficial interests in the assets of the
Trust, guaranteed by the Guarantor as to the payment of distributions, and as
to payments on liquidation or redemption, to the extent set forth in a
guarantee agreement (the "Guarantee") between the Guarantor and _____________,
as trustee (the "Guarantee Trustee"). The proceeds of the sale of the
Securities by the Trust are to be invested in Junior Subordinated Debentures
(the "Subordinated Debentures") of the Guarantor, to be issued pursuant to an
Indenture (the "Indenture") between the Guarantor and ____________, as trustee
(the "Debenture Trustee").
1. Each of the Trust and the Guarantor jointly and severally
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File Nos.
33-.....and 33 ....-01) in respect of the Securities and the Guarantee
(collectively, the "Registered Securities") has been filed with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"); such registration
statement and any post-effective amendment thereto, each in the form
heretofore delivered to you and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus
contained therein, to you for each of the other Underwriters, have
been declared effective by the Commission in such form; no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission; and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement or thereafter filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act, being hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including all
exhibits thereto and including (i) the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the registration
statement
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at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective, each as amended at the time such part of
the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Guarantor
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Trust or the Guarantor by an Underwriter through Goldman, Sachs
& Co. expressly for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the Guarantor by an
Underwriter through Goldman, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, (i) as of the
applicable effective date as to the Registration Statement and any
amendment thereto and (ii) as of the applicable filing date as to the
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, however, that this
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representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Trust or the Guarantor by an Underwriter
through Goldman, Sachs & Co. expressly for use therein;
(e) Neither the Trust nor the Guarantor and its subsidiaries
considered as a whole has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock or long-term debt
of the Guarantor and its subsidiaries considered as a whole or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, or security holders' equity of the
Trust or the general affairs, management, financial position,
stockholders' equity or results of operations of the Guarantor and its
subsidiaries considered as a whole, otherwise than as set forth in or
contemplated by the Prospectus;
(f) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "Delaware "Business Trust Act") with
the power and authority to own property and conduct its business as
described in the Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement
and as described in the Prospectus; the Trust is not a party to or
bound by any agreement or instrument other than the Trust Agreement;
the Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by this Agreement and described
in the Prospectus; the Trust is not and will not be classified as an
association taxable as a corporation for United States federal income
tax purposes; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature;
(g) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts
any business in an amount that is material to the business of the
Guarantor and its consolidated subsidiaries considered as a whole so
as to require such qualification; each Material Subsidiary (as defined
below) of the Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is duly qualified as a foreign
corporation for the transaction of business and in good standing under
the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification (as used in this Agreement, the term "Material
Subsidiary" means a subsidiary of the Guarantor which is a significant
subsidiary under Rule 1-02 of Regulation S-X of the Commission);
(h) The Guarantor has an authorized capitalization as set
forth in the Prospectus; since such date there has been no change in
the consolidated capitalization of the Guarantor and its subsidiaries;
and all of the outstanding undivided beneficial interests of the Trust
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in
the Prospectus; all of the issued shares of capital stock of each
subsidiary of the Guarantor have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares) are owned
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directly or indirectly by the Guarantor, free and clear of all liens,
encumbrances, equities and claims; encumbrances, equities and claims;
(i) The Securities have been duly and validly authorized by
the Trust, and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Securities is not subject to
preemptive or other similar rights; the Securities will have the
rights set forth in the Trust Agreement, and the terms of the
Securities are valid and binding on the Trust; the Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit;
(j) The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the
Guarantor against payment therefor as described in the Prospectus,
will be duly and validly issued and fully paid and non- assessable
undivided beneficial interests in the assets of the Trust and will
conform to the description thereof contained in the Prospectus; the
issuance of the Common Securities is not subject to preemptive or
other similar rights; and at the Time of Delivery, all of the issued
and outstanding Common Securities of the Trust will be directly owned
by the Guarantor free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(k) The Guarantee, the Subordinated Debentures, the Trust
Agreement and the Indenture (the Guarantee, the Subordinated
Debentures, the Trust Agreement and the Indenture being collectively
referred to as the "Guarantor Agreements") have each been duly
authorized and when validly executed and delivered by the Guarantor
and, in the case of the Guarantee, by the Guarantee Trustee, in the
case of the Trust Agreement, by the Trust and, in the case of the
Indenture, by the Trust and the Debenture Trustee,will constitute
valid and legally binding obligations of the Guarantor, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Subordinated Debentures are entitled to the benefits of the Indenture;
and the Guarantor Agreements conform to the descriptions thereof in
the Preliminary Prospectus and will conform to the descriptions
thereof in the Prospectus;
(l) The issue and sale of the Securities by the Trust, the
compliance by the Trust with all of the provisions of this Agreement,
the purchase of the Subordinated Debentures by the Trust, and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach 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 the Trust is
a party or by which the Trust is bound or to which any of the property
or assets of the Trust is subject, nor will such action result in any
violation of the provisions of the Trust Agreement or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust or any of its properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities by the Trust, the
purchase of the Subordinated Debentures by the Trust or the
consummation by the Trust of the transactions contemplated by this
Agreement, except the registration under the Act of the Registered
Securities and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase of the Securities and the
distribution of the Securities by the Underwriters;
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(m) The issuance by the Guarantor of the Guarantee, the
compliance by the Guarantor with all of the provisions of this
Agreement, the execution, delivery and performance by the Guarantor of
the Guarantor Agreements, and the consummation of the transactions
herein and therein contemplated 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 the Guarantor
or any of its Material Subsidiaries is a party or by which the
Guarantor or any of its Material Subsidiaries is bound or to which any
of the property or assets of the Guarantor or any of its Material
Subsidiaries is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or by-laws of
the Guarantor or the charter or by-laws of any of its Material
Subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Guarantor or any of its Material Subsidiaries or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue of the Guarantee
or the consummation by the Guarantor of the other transactions
contemplated by this Agreement, except the registration under the Act
of the Registered Securities and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase of the Securities and distribution of the Securities by the
Underwriters;
(n) Neither the Trust, the Guarantor nor any of the
Guarantor's Material Subsidiaries is in violation of its
organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(o) The statements set forth in the Prospectus under the
captions "Description of the Preferred Securities", "Description of
the Guarantee" and "Description of the Junior Subordinated
Debentures", insofar as they purport to constitute a summary of the
terms of the securities therein described, under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, and under the caption
"Taxation" are accurate, complete and fair;
(p) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Guarantor or
any of the Guarantor's subsidiaries is a party or of which any
property of the Guarantor or any of the Guarantor's subsidiaries is
the subject, other than litigation which, in the opinion of the
Guarantor will not individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the
Guarantor and its subsidiaries considered as a whole, and, to the best
of the Guarantor's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(q) Neither the Trust nor the Guarantor is, and after giving
effect to the offering and sale of the Securities, neither the Trust
nor the Guarantor will be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Trust Act of 1940, as amended (the "Investment Company
Act");
(r) Neither the Trust, the Guarantor nor any of the
Guarantor's affiliates does business with the Government of Cuba or
with any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statues;
(s) There are no contracts, agreements or understandings
between the Trust or the Guarantor and any person that grant such
person the right to require the Trust or the
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Guarantor to file a registration statement under the Act with respect
to any undivided beneficial interests of the Trust or any capital
stock of the Guarantor owned or to be owned by such person or to
require the Trust or the Guarantor to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Trust or the Guarantor under the Act; and
(t) Ernst & Young, who have certified certain financial
statements of the Trust, the Guarantor and the Guarantor's
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the
Trust and the Guarantor agree that the Trust shall issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase, at a purchase price of $..... per preferred security, the
number of Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust to purchase the Subordinated Debentures of the Guarantor, the
Guarantor hereby agrees to pay at that Time of Delivery (as defined in Section
4 hereof) to Goldman, Sachs & Co., for the accounts of the several
Underwriters, an amount equal to $..... per share for the Securities to be
delivered at that Time of Delivery, provided, however, that such compensation
will be $..... per preferred security sold to certain institutions.
3. Upon the authorization by you of the release of the Securities,
the several Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours'
prior notice to the Trust, shall be delivered by or on behalf of the Trust to
Goldman, Sachs & Co., through the facilities of The Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf
of such Underwriter of the purchase price therefor by certified or official
bank check or checks, payable to the order of the Trust in New York Clearing
House (next day) funds. The Trust will cause the certificates representing the
Securities to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., New York time, on , 1995 or such
other time and date as Goldman, Sachs & Co. and the Trust may agree upon in
writing.
At the Time of Delivery, the Trust will pay, or cause to be paid, the
commission payable to the Underwriters under Section 2 hereof by certified or
official bank check or checks, payable to the order of Goldman, Sachs & Co. in
New York Clearing House (next day) funds.
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof; and the check or checks specified
in subsection (a) above, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"),
and the Securities will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and
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Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Trust and the Guarantor jointly and severally agree with each
of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business 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 Act; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the Time of Delivery
which shall be disapproved by you promptly after reasonable notice
thereof; to advise you promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended prospectus has been filed and to furnish you with copies
thereof; in the case of the Guarantor, to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Guarantor with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities; to advise
you, 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 Prospectus or prospectus, of the suspension
of the qualification of the Registered Securities 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 Registration Statement or
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 prospectus relating to the Registered Securities or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Registered Securities for offering
and sale under the securities laws of such jurisdictions as you 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 distribution of the Securities, provided
that in connection therewith neither the Trust nor the Guarantor shall
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus, in
New York City in such quantities as you may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act or the Exchange Act, to notify you and
upon your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in
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connection with sales of any of the Securities at any time nine months
or more after the date of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) In the case of the Guarantor, to make generally available
to its securityholders as soon as practicable, but in any event not
later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Guarantor and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules
and regulations thereunder (including at the option of the Guarantor,
Rule 158 under the Act);
(e) During the period beginning from the date hereof and
continuing to and including the earlier of (i) the date, after the
Time of Delivery, on which the distribution of the Preferred
Securities ceases, as determined by you, and (ii) [90] days after the
Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any securities, any other beneficial interests of the
Trust, or any preferred securities or any other securities of the
Trust or the Guarantor, as the case may be, that are substantially
similar to the Securities, including the Guarantee, or any securities
that are convertible into or exchangeable for, or that represent the
right to receive securities, preferred securities or any such
substantially similar securities of either the Trust or BFG;
(f) To furnish to the holders of Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Guarantor and its consolidated
subsidiaries certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Guarantor and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to holders of
capital stock of the Guarantor, and to deliver to you (i) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Trust or the
Guarantor is listed; and (ii) such additional information concerning
the business and financial condition of the Trust as you may from time
to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Trust and the
Guarantor and its subsidiaries are consolidated in reports furnished
to their securityholders generally or to the Commission);
(h) In the case of the Guarantor, to issue the Guarantee
concurrently with the issue and sale of the Securities as contemplated
herein;
(i) To use the net proceeds received by it from the sale of
the Securities, in the case of the Trust, and the Subordinated
Debentures, in the case of the Guarantor,pursuant to this Agreement in
the manner specified in the Prospectus under the caption "Use of
Proceeds"; and
(j) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange.
6. The Guarantor covenants and agrees with the several Underwriters
that it will pay the following: (i) the fees, disbursements and expenses of the
Trust's and the Guarantor's counsel and
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accountants in connection with the registration of the Registered Securities
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing or producing any Agreement among Underwriters, this Agreement, the
Indenture, the Legal Investment and Blue Sky Memoranda, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Registered Securities; (iii) all
expenses in connection with the qualification of the Registered Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Legal Investment
and Blue Sky surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost and charges of the transfer agent or
registrar; (vii) the cost of qualifying the Securities with The Depository
Trust Company; (viii) all fees and expenses of the Debenture Trustee and its
counsel; (ix) all fees and expenses in connection with the listing of the
Securities on the New York Stock Exchange and the cost of registering the
Securities under Section 12 of the Exchange Act; (x) the cost of preparing
certificates for the Securities and the Subordinated Debentures; and (xi) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in this Section, Section 8
and Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale
of any of the Securities by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters hereunder, as to the
Securities to be delivered at the Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Trust and the Guarantor herein are, at and as of the Time of
Delivery, true and correct, the condition that the Trust and the Guarantor
shall have performed all of their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to you such opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated the Time of
Delivery, with respect to: the incorporation of the Guarantor and the
formation of the Trust; insofar as the federal laws of the United
States, the laws of the State of New York or the State of Delaware are
concerned, the validity of the Registered Securities and the
Subordinated Debentures; the Registration Statement and the
Prospectus; and other related matters as you may reasonably request;
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Nicholas J. Calise, Esq., Vice President, Associate
General Counsel and Secretary of the Guarantor, shall have furnished
to you his written opinion ( a draft of each such opinion is attached
as Annex II(b) hereto), dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
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(i) The Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of New York, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under
the Delaware Business Trust Act with the power and authority
to own property and conduct its business as described in the
prospectus; the Trust is not a party to or bound by any
agreement or instrument other than the Trust Agreement and the
Indenture; and to the best of such counsel's knowledge, there
are no legal or governmental proceedings to which the Trust is
a party or of which any property of the Trust is the subject
and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iii) The Guarantor has an authorized capitalization as set
forth in the Prospectus, and all of the outstanding undivided
beneficial interests of the Trust have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform in all material respects to the descriptions thereof
contained in the Prospectus;
(iv) The Guarantor Agreements have each been duly
authorized, executed and delivered by the Guarantor and such
Agreements constitute valid and legally binding obligations of
the Guarantor, enforceable in accordance with their respective
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the
Subordinated Debentures are entitled to the benefits provided
by the Indenture; and the Guarantor Agreements conform in all
material respects to the descriptions thereof in the
Prospectus;
(v) The Securities have been duly and validly authorized
by the Trust, and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable and will conform to the
description thereof contained in the Prospectus; the
Securities have the rights set forth in the Trust Agreement
and the terms of the Securities are valid and binding on the
Trust;
(vi) The Guarantor has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in the United
States other than New York in which it owns or leases plants
or other major real property (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Guarantor, provided that such
counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(vii) Each Material Subsidiary of the Guarantor has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; all of the issued shares of capital stock of
each such Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and
(except for directors' qualifying shares) are owned directly
or indirectly by the Guarantor, free and clear of all liens,
encumbrances, equities or claims;
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(viii) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending to which the
Guarantor or any of its subsidiaries is a party or of which
any property of the Guarantor or any of its subsidiaries is
the subject, other than as set forth in the Prospectus and
other than litigation which in the aggregate is not material
to the Guarantor and its subsidiaries considered as a whole;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(ix) This Agreement has been duly authorized, executed and
delivered by each of the Trust and the Guarantor;
(x) The issue and sale by the Trust of the Securities
being delivered at such Time of Delivery, the compliance by
the Trust with all of the provisions of this Agreement, the
purchase by the Trust of the Subordinated Debentures, the
execution, delivery and performance by the Trust of the
Indenture and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach 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 known to such
counsel to which the Trust is a party or by which the Trust is
bound or to which any of the property or assets of the Trust
is subject, nor will such action result in any violation of
the provisions of the Trust Agreement or certificate of trust
of the Trust or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Trust or any of its
properties;
(xi) The issuance by the Guarantor of the Guarantee and
the Subordinated Debentures, the compliance by the Guarantor
with all of the provisions of this Agreement, the execution,
delivery and performance by the Guarantor of the Guarantor
Agreements and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach 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 known to such
counsel to which the Guarantor or any of its Material
Subsidiaries is a party or by which the Guarantor or any of
its Material Subsidiaries is bound or to which any of the
property or assets of the Guarantor or any of its Material
Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Guarantor's Certificate of
Incorporation or by-laws or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Guarantor or any
of its Material Subsidiaries or any of their properties;
(xii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Securities by the Trust, the purchase by the Trust of
the Subordinated Debentures or the consummation by the Trust
of the transactions contemplated by this Agreement, except the
registration under the Act of the Registered Securities, and
such consents, approvals, authorizations, registrations or
qualifications as have been obtained or may be required under
state securities or Blue Sky laws in connection with the
purchase of the Securities and the distribution of the
Securities by the Underwriters;
(xiii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue of the
Guarantee or the consummation by the Guarantor of the
transactions contemplated herein and in the Guarantor
Agreements, except the registration under the Act of the
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Registered Securities, and such consents, approvals,
authorizations, registrations or qualifications as have been
obtained or may be required under state securities or Blue Sky
laws in connection with the purchase of the Securities and the
distribution of the Securities by the Underwriters;
(xiv) Neither the Trust, the Guarantor nor any of the
Guarantor's Material Subsidiaries is in violation of its
organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties
may be bound;
(xv) The statements set forth in the Prospectus under the
captions "Description of the Preferred Securities",
"Description of the Guarantee" and "Description of the Junior
Subordinated Debentures", insofar as they purport to
constitute a summary of the terms of the securities therein
described, and under the caption "Underwriting", insofar as it
purports to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(xvi) Neither the Trust nor the Guarantor is an "investment
company" or an entity "controlled" by an "investment company"
required to be registered under the Investment Company Act;
and
(xvii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made
by the Trust or the Guarantor prior to the Time of Delivery
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any
of such documents, when such documents became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
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, in the case of
other documents which were filed under the Exchange Act with
the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading;
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction outside the
United States.
(d) White & Case, special counsel for the Trust and the
Guarantor, shall have furnished to you their written opinion (a draft
of such opinion is attached as Annex II(c) hereto), dated the Time of
Delivery, in form and substance satisfactory to you, to the same
effect as the opinions set forth in paragraphs (ii), (iv), (v), (xv)
and (xvi) of Section 7(c) of this Agreement and to the effect that:
(i) The statements made in the Prospectus under the
caption "Taxation", to the extent they constitute matters of
law or legal conclusions, have been reviewed by such counsel
and are accurate, correct and fairly present the information
set forth therein; and
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(ii) The Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the
Trust or the Guarantor prior to the Time of Delivery (other
than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act
and the rules and regulations thereunder; although such counsel
does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those
referred to in the opinions in Subsection (xv) of Section 7(c)
and Subsection (i) of Section 7(d), such counsel has no reason
to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Trust or
the Guarantor prior to the Time of Delivery (other than the
financial statements and related schedules and other financial
data therein, as to which such counsel need express no opinion)
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, as of its date, the Prospectus or any further amendment
or supplement thereto made by the Trust prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
that, as of the Time of Delivery either the Registration
Statement or the Prospectus or any further amendment or
supplement thereto made by the Trust or the Guarantor prior to
such Time of Delivery (other than the financial statements and
related schedules and other financial data therein, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
such counsel does not know of any amendment to the Registration
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in
the Registration Statement or the Prospectus which are not
filed or incorporated by reference or described as required.
In rendering such opinion, such counsel may state that their opinion
is limited to the laws of the State of New York, federal law and the trust law
of the State of Delaware.
(e) , special Delaware Counsel to the Trust
and the Guarantor, shall have furnished to you their written opinion (a draft
of such opinion is attached as Annex II(d) hereto), dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that
[to be supplied]
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at the Time of Delivery, Ernst & Young shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto; (the executed copy of the letter delivered prior to
the execution of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto).
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(g) The Trust Agreement, the Guarantee and the Indenture shall have
been executed and delivered, in each case in a form reasonably satisfactory to
you;
(h) (i) Neither the Trust nor the Guarantor and its subsidiaries
considered as a whole shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus
any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any change in
the capital stock or long-term debt of the Guarantor and its subsidiaries
considered as a whole or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position or
of the Trust or the general affairs, management, consolidated financial
position, stockholders' equity or results of operations of the Guarantor and
its subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in Clause (i) or (ii), is in your judgment so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering of the
Securities or the delivery of the Securities being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Securities or any of the Guarantor's debt securities
or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Guarantor's debt
securities or preferred stock;
(j) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Guarantor's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities in New
York declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering of the Securities or the delivery of the Securities being
delivered at such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(k) The Securities to be sold by the Trust at the Time of Delivery
shall have been duly listed, subject to notice of issuance, on the New York
Stock Exchange; and
(l) The Trust and the Guarantor shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of the
Guarantor and the Trust satisfactory to you, as to the accuracy of the
representations and warranties of the Trust and the Guarantor herein at and as
of such Time of Delivery, as to the performance by the Trust and the Guarantor
of all of their obligations hereunder to be performed at or prior to such Time
of Delivery, as to the matters set forth in subsections (a) and (g) of this
Section and as to such other matters as you may reasonably request.
(m) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement.
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8. (a) The Trust and the Guarantor will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Trust nor the Guarantor shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Trust or the Guarantor by
any Underwriter through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Trust and the
Guarantor against any losses, claims, damages or liabilities to which the Trust
or the Guarantor may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Trust or the Guarantor by
such Underwriter through Goldman, Sachs & Co. expressly for use therein; and
will reimburse the Trust and the Guarantor for any legal or other expenses
reasonably incurred by the Trust or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and
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(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Trust and the Guarantor on the one hand and
the Underwriters on the other from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Trust and the Guarantor on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Trust and the Guarantor on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as (i) the total proceeds from the
offering (before deducting expenses) received by the Trust less the total
underwriting compensation paid by the Guarantor bear to (ii) the total
underwriting compensation received by the Underwriters, in each case as set
forth in, or in footnotes to, the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Trust and the Guarantor on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Trust, the Guarantor and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include 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 subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Trust and the Guarantor under this
Section 8 shall be in addition to any liability which the Trust and the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Trust or the Guarantor and to each person, if any,
who controls the Trust or the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after
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such default by any Underwriter you do not arrange for the purchase of such
Securities, then the Trust and the Guarantor shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Trust and
the Guarantor that you have so arranged for the purchase of such Securities, or
the Trust or the Guarantor notifies you that it has so arranged for the
purchase of such Securities, you or the Trust and the Guarantor shall have the
right to postpone the Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Trust and the Guarantor agree to file promptly any
amendments to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Trust and
the Guarantor as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Securities to be purchased at such Time of Delivery,
then the Trust and the Guarantor shall have the right to require each
non-defaulting Underwriter to purchase the number of shares which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Securities which such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Trust and
the Guarantor as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Securities to be purchased at such Time of Delivery, or if the
Trust and the Guarantor shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter, the
Trust or the Guarantor, except for the expenses to be borne by the Trust, the
Guarantor and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Trust, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Trust, the Guarantor or any officer or director or
controlling person of the Trust or the Guarantor, and shall survive delivery of
and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Trust nor the Guarantor shall then be under any liability to
any Underwriter except as provided in Section 6 and Section 8 hereof; but if,
for any other reason, Securities are not delivered by or on behalf of the Trust
as provided herein, the Trust and the Guarantor will reimburse the Underwriters
through you for all out-of-pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Securities not so
delivered, but the Trust and the Guarantor shall then be under no further
liability to any Underwriter in respect of the Securities not so delivered
except as provided in Section 6 and Section 8 hereof.
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12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; and if to the Trust or the Guarantor by mail to it at the address of
the Trust or the Guarantor set forth in the Registration Statement, Attention:
Secretary; provided, however that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Trust and the Guarantor by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Trust, the Guarantor and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the
Guarantor or the Trust and each person who controls the Trust, the Guarantor or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters, on
the one hand, and the Trust and the Guarantor, on the other. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Trust
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and the Guarantor for examination upon request, but without warranty on your
part as to the authority of the signers thereof.
Very truly yours,
B.F.Goodrich Trust
By , Trustee
By:____________________________
Name and Title:
The BFGoodrich Capital
By:____________________________
Name and Title:
Accepted as of the date hereof:
_____________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
Total Number of
Securities
Underwriter to be Purchased
----------- ---------------
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,400,000
=========
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ANNEX I
[Form of letter of Ernst & Young
to be delivered pursuant to Section 7(e)]
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Guarantor and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Guarantor for the periods
specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the representatives
of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Guarantor's
quarterly report on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which have
been separately furnished to the Representatives and on the basis of
specified procedures including inquiries of officials of the Guarantor
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Guarantor for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Guarantor's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Guarantor's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused
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them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302 and 503(d)
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Guarantor and its subsidiaries,
inspection of the minute books of the Guarantor and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Guarantor and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or incorporated by reference in the Guarantor's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations
or (ii) any material modifications should be made to the
unaudited consolidated statements of income, consolidated
balance sheet and consolidated statements of cash flows
included in the Prospectus or included in the Guarantor's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus, for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Guarantor's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Guarantor's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus), or any
increase in the consolidated long-term debt of the Guarantor
and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases
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in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenue or other
items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period in the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii), (iv), (v) and (vi) above,
they have carried out certain specified procedures, not constituting
an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from
the general accounting records of the Guarantor and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference) or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Guarantor and its subsidiaries and have found them to be in
agreement.
All references in this Annex I to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Underwriting Agreement and to the Prospectus as
amended or supplemented (including all documents incorporated by reference
therein) for the purposes of the letter delivered either (i) on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of the Underwriting Agreement or (ii) at each Time of
Delivery, as the case may be.
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