Exhibit 1
UNDERWRITING AGREEMENT
September __, 1996
Tupperware Corporation
[Tupperware Netherlands B.V.]
P.O. Box 2353
Orlando, Florida 32802
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that [TUPPERWARE
NETHERLANDS B.V.], a corporation organized under the laws of the Kingdom of The
Netherlands (the "Company"), proposes to issue and sell U.S.$[PRINCIPAL AMOUNT]
aggregate initial offering price of [Full title of Debt Securities] (the "Debt
Securities") [and] [_______ warrants (the "Debt Warrants") to purchase
U.S.$[Principal Amount] aggregate initial offering price of its [title of debt
securities] (the "Debt Warrant Securities")] and TUPPERWARE CORPORATION, a
Delaware corporation (the "Guarantor"), proposes to issue and sell its full and
unconditional guarantees of the payment of principal and interest respecting the
Debt Securities [and Debt Warrant Securities] (the "Guarantees"). (The Debt
Securities, the Debt Warrants and the Guarantees, but not the Debt Warrant
Securities, are collectively referred to herein as the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company and the Guarantor hereby respectively agree to
sell and the Underwriters agree to purchase, severally and not jointly, the
principal amount of Debt Securities and Guarantees [and numbers of Debt
Warrants] set forth below opposite their names at a purchase price of ____% of
the principal amount of Debt Securities [and at a purchase price of $________
per Debt Warrant]:
Principal Amount of
Debt Securities
(together with the
Name related Guarantees)
---- -------------------
Morgan Stanley & Co.
Incorporated
Goldman, Sachs & Co.
[Insert syndicate list]
Total . . . .
=================
Number of Debt
Name Warrants
---- --------------
Morgan Stanley & Co.
Incorporated
Goldman, Sachs & Co.
[Insert syndicate list]
Total . . . .
=================
[The principal amount of Debt Securities (together with the related
Guarantees) [and number of Debt Warrants] to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities (together with the related Guarantees) and number of Debt Warrants
sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for the Offered Securities [(less any
Offered Securities sold pursuant to delayed delivery contracts)]* upon
delivery thereof at [office] at _________ a.m. (New York time) on September __,
1996, or at such other time, not later than 5:00 p.m. (New York time) on
September __, 1996, as shall be designated by the Manager. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated September __, 1996, and the Prospectus Supplement dated
September __, 1996, including the following:
- ----------------
* To be added only if delayed delivery contracts are contemplated.
Terms of Debt Securities
Maturity Date: ____________ __, ____
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ______________ __ and
______________ __ commencing
______________ __, ____
Form and Denomination:
Guarantees: Payment of principal and interest fully and unconditionally
guaranteed by the Guarantor.
[Other Terms:]
[Terms of Debt Warrants
Form: _________________, to be evidenced by warrant certificates (the
"Warrant Certificates") and to be issued pursuant to the
provisions of a Debt Warrant Agreement dated as of ___________,
1996 (the "Debt Warrant Agreement") between the Company and
______________, as Debt Warrant Agent.]
[Number of Debt Warrants issued with each $ principal
amount of Debt Securities:]
[Detachable Date:]
Exercise Date:
Expiration Date:
Exercise Price:
Principal Amount of Debt Warrant Securities Purchasable upon Exercise of
one Debt Warrant:
[Other Terms:]
Terms of Debt Warrant Securities
Maturity:
Interest Rate:
-3-
Redemption Provisions:
Interest Payment Dates:
Form and Denomination:
[Other Terms]:
[The commission to be paid to the Underwriters in respect of the
Offered Securities purchased pursuant to delayed delivery contracts arranged by
the Underwriters shall be ____% of the principal amount of the Debt Securities
(together with the related Guarantees) so purchased and $________ per Debt
Warrant so purchased.]
All provisions contained in the document entitled [Tupperware Finance
Company]/Tupperware Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Guarantees and Warrants to Purchase Debt Securities) dated September
__, 1996, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control and (ii) all references in
such document to a type of security that is not an Offered Security [or a Debt
Warrant Security] shall not be deemed to be a part of this Agreement.
- ----------------
To be added only if delayed delivery contracts are contemplated.
-4-
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.
On behalf of themselves and the other Underwriters
named herein
By: MORGAN STANLEY & CO. INCORPORATED
By:
-------------------------------------
Name:
Title:
Accepted:
[TUPPERWARE NETHERLANDS B.V.]
By:
-------------------------
Name:
Title:
TUPPERWARE CORPORATION
By:
-------------------------
Name:
Title:
-5-
[TUPPERWARE NETHERLANDS B.V.]/
TUPPERWARE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, GUARANTEES AND WARRANTS
TO PURCHASE DEBT SECURITIES)
September __, 1996
From time to time, TUPPERWARE CORPORATION, a Delaware corporation
("Guarantor") and [TUPPERWARE NETHERLANDS B.V.], a corporation organized under
the laws of the Kingdom of the Netherlands and a wholly-owned subsidiary of
Guarantor (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company and Guarantor have filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Debt Securities, Guarantees and Debt Warrants and has filed
with, or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities and the Debt
Warrant Securities, if any, pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"). The term "Registration Statement"
means the registration statement as amended to the date of this Agreement. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities and the
Debt Warrant Securities, if any, together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "supplement" and "amendment" or "amend" as used in herein
shall include all documents that are deemed to be incorporated by reference in
the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company and Guarantor with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term Contract Securities means the Offered Securities, if any, to
be purchased pursuant to the delayed delivery contracts substantially in the
form of Schedule I hereto, with such changes therein as the Company and
Guarantor may approve (the "Delayed Delivery Contracts"). The term
"Underwriters' Securities" means the Offered Securities other than Contract
Securities.
1. Representations and Warranties. The Company and Guarantor each
represent and warrant to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain,
any 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, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply, in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information concerning any Underwriter
furnished to the Company or Guarantor in writing by such Underwriter through the
Manager expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), of the trustee referred to in the Registration Statement.
-2-
(c) Each of Guarantor and the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
Guarantor and its subsidiaries, taken as a whole.
(d) Each subsidiary of Guarantor and the Company, respectively, has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on Guarantor and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered
by Guarantor and the Company.
(f) The Indenture has been duly qualified under the Trust Indenture
Act at 1939, as amended, and has been duly authorized, executed and delivered by
Guarantor and the Company and is a valid and binding agreement of Guarantor and
the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(g) The Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by Guarantor and the Company and is a valid and binding
agreement of Guarantor and the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors, rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(h) The Offered Securities and the Debt Warrant Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture
-3-
and the Debt Warrant Agreement, as the case may be, and delivered to and paid
for (A) by the Underwriters in accordance with the terms of the Underwriting
Agreement or by institutional investors, if any, pursuant to Delayed Delivery
Contracts, in the case of the Offered Securities, and (B) upon exercise of Debt
Warrants pursuant to the Debt Warrant Agreement, in the case of the Debt Warrant
Securities, will be entitled to the benefits of the Indenture and the Debt
Warrant Agreement, as the case may be, and will be valid and legally binding
obligations of Guarantor and the Company, in each case enforceable in accordance
with their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by Guarantor and the Company and are valid
and binding agreements of Guarantor and the Company, enforceable in accordance
with their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(j) The execution and delivery by Guarantor and the Company of, and
the performance by Guarantor and the Company of their respective obligations
under, this Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, any Delayed Delivery Contracts and the Debt Warrant Agreement, if
any, will not contravene any provision of applicable law or the certificate of
incorporation or by-laws of Guarantor or the Company or any agreement or other
instrument binding upon Guarantor or the Company or any of their respective
subsidiaries that is material to Guarantor and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over Guarantor or the Company or any of their
respective subsidiaries, and no consent, approval or authorization or order
of or qualification with any governmental body or agency is required for the
performance by Guarantor or the Company of its obligations under this Agreement,
the Indenture, the Offered Securities, the Debt Warrant Securities, any Delayed
Delivery Contract or the Debt Warrant Agreement, if any, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Offered Securities.
(k) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of (i) the
Company and its subsidiaries,
-4-
taken as a whole, or (ii) Guarantor and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(l) There are no legal or governmental proceedings pending or
threatened to which Guarantor or the Company or any of their respective
subsidiaries is a party or to which any of the properties of Guarantor or the
Company or any of their respective subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or
filed as required.
(m) Each of Guarantor and the Company and their respective
subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on Guarantor and its
subsidiaries, taken as a whole.
(n) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder.
(o) Neither Guarantor nor the Company is an "investment company" or
an entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
2. Delayed Delivery Contracts. If the Prospectus provides for sales
of Offered Securities pursuant to Delayed Delivery Contracts, Guarantor and the
Company hereby authorize the Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery Contracts
may be entered into only with institutional investors approved by Guarantor and
the Company of the types set forth in the Prospectus. On the Closing Date,
Guarantor and the Company will pay to the Manager as compensation for the
accounts of the Underwriters the commission set forth in the Underwriting
Agreement in respect of the Contract Securities. The Underwriters will not have
any responsibility in respect of
-5-
the validity or the performance of any Delayed Delivery Contracts.
If Guarantor and the Company execute and deliver Delayed Delivery
Contracts with institutional investors, the aggregate amount of Offered
Securities to be purchased by the several Underwriters shall be reduced by the
aggregate amount of Contract Securities; and such reduction shall be applied to
the commitment of each Underwriter pro rata in proportion to the amount of
Offered Securities set forth opposite such Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be applied in other proportions and so advises Guarantor
and the Company; provided, however, that the total amount of Offered Securities
to be purchased by all Underwriters shall be the aggregate amount set forth
above, less the aggregate amount of Contract Securities.
3. Public Offering. Guarantor and the Company are advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Underwriters' Securities as soon after this Agreement
has been entered into as in the Manager's judgment is advisable. The terms of
the public offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Purchase and Delivery. Except as otherwise provided in this
Section 4, payment for the Underwriters' Securities shall be made by certified
or official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities, registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Underwriters' Securities to the
Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities that are
(i) Debt Securities in bearer form shall be effected by delivery of a single
temporary global Debt Security without coupons (the "Global Debt Security")
evidencing the Offered Securities that are Debt Securities in bearer form and
(ii) Debt Warrants in bearer form shall be effected only by delivery of a single
permanent global Debt Warrant (the "Global Debt Warrant") evidencing the Offered
Securities that are Debt Warrants in bearer form, in each case to a common
depositary for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison
de Valeurs Mobilieres S.A. ("CEDEL") for
-6-
credit to the respective accounts at Euro-clear or CEDEL of each Underwriter or
to such other accounts as such Underwriter may direct. Any Global Debt Security
or Global Debt Warrant shall be delivered to the Manager not later than the
Closing Date, against payment of funds to the Company in the net amount due to
the Company for such Global Debt Security or Global Debt Warrant, as the case
may be, by the method and in the form set forth herein. Guarantor and the
Company shall cause definitive Debt Securities in bearer form to be prepared and
delivered in exchange for such Global Debt Security in such manner and at such
time as may be provided in or pursuant to the Indenture; provided, however, that
the Global Debt Security shall be exchangeable for definitive Debt Securities in
bearer form only on or after the date specified for such purpose in the
Prospectus. The Offered Debt Warrants shall be evidenced only by a Global Debt
Warrant until their expiration.
5. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) (i) subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date, there shall not have been any
downgrading, nor any notice given of any intended or potential
downgrading or of a possible change that does not indicate the
direction of the possible change, in the rating accorded any of any of
Guarantor's or the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of (a)
Guarantor and its subsidiaries, taken as a whole, or (b) the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus; and
(iii) the Manager shall have received on the Closing Date
certificates, dated the Closing Date and signed respectively by
executive officers of Guarantor and the Company, to the effect set
forth in clause (i) above and to the effect that the representations
and warranties of Guarantor and the Company contained in
-7-
this Agreement are true and correct as of the Closing Date and that
Guarantor and the Company have complied with all of the agreements and
satisfied all of the conditions on the part of Guarantor and the
Company to be performed or satisfied on or before the Closing Date.
The officer signing and delivering any such certificates may
rely upon the best of his or her knowledge as to proceedings
threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Baker & MacKenzie, independent counsel for the Company, dated the Closing
Date, to the effect set forth in Exhibit A.
(c) The Manager shall have received on the Closing Date an opinion of
Sidley & Austin, independent counsel for Guarantor, dated the Closing Date,
to the effect set forth in Exhibit B.
(d) The Manager shall have received on the Closing Date an opinion of
Mayer, Brown & Platt, special counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit C.
(e) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Manager,
from Guarantors' and the Company's independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of Guarantor and the Company. In further consideration
of the Underwriters contained herein, Guarantor and the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below,
as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto or to the Registration
Statement as the Manager may reasonably request.
-8-
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to amend
or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters, and to the dealers (whose
names and addresses the Manager will furnish to Guarantor) to which Offered
Securities may have been sold by the Manager on behalf of the Underwriters
and to any other dealer upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with (i) the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may designate and (ii) any review of the offering of the Offered
Securities by the National Association of Securities Dealers, Inc.
(e) To make generally available to Guarantor's and the Company's
security holders and to the Manager as soon as practicable an earning
statement covering a twelve month period beginning on the first day of the
first full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the
-9-
Closing Date, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of Guarantor or the Company or warrants to purchase
debt securities of Guarantor or the Company substantially similar to the
Offered Securities or any guarantees of any of the foregoing (other than
(i) the Offered Securities and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Manager.
7. Covenants of the Underwriters.
(A) Each of the several Underwriters agrees with Guarantor and the
Company that:
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold Debt
Securities in bearer form (including any Debt Security in global form that
is exchangeable for Debt Securities in bearer form) to a person who is
within the United States or its possessions or to a United States person or
delivered definitive Debt Securities in bearer form within the United
States or its possessions, (ii) it will not offer or sell Debt Securities
in bearer form during the restricted period to a person who is within the
United States or its possessions or to a United States person and (iii) it
will not deliver within the United States or its possessions definitive
Debt Securities in bearer form that are sold during the restricted period;
(b) it has in effect procedures reasonably designed to ensure that its
employees or agents who are directly engaged in selling Debt Securities in
bearer form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United States or
its possessions or to a United States person, except as permitted by the D
Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer form
for the purpose of offering or selling such Debt Securities during the
restricted period, it will either (i) obtain from such affiliate for the
benefit of Guarantor and the Company the representations and agreements
contained in clauses (a), (b) and (c) or (ii) be deemed to have repeated
and confirmed the representations and agreements
-10-
contained in clauses (a), (b) and (c) with respect to such affiliate;
(e) it will obtain for the benefit of Guarantor and the Company the
representations and agreements contained in clauses (a), (b), (c) and (d)
from any person other than its affiliate with whom it enters into a written
contract, as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(4) for
the offer or sale during the restricted period of Debt Securities in bearer
form;
(f) it will not deliver Debt Securities in bearer form (other than
temporary global Debt Securities) and any coupons appertaining thereto in
definitive form unless Guarantor and the Company has received a signed
certificate in writing (or an electronic certificate described in U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(3)(ii)) stating that on such date
(i) such Debt Security is owned by a person who is not a United States
person, (ii) such Debt Security is owned by a United States person as
defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6) or (iii) such
Debt Security is owned by a financial institution as defined in U.S. Treas.
Reg. Section 1.165-12(c)(1)(v) for purposes of resale during the restricted
period and has not been acquired for the purposes of resale directly or
indirectly within the United States or to United States persons (other than
as permitted by the applicable Treasury Regulations described above); and
(g) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given to them
by the U.S. Internal Revenue Code and regulations thereunder, including the D
Rules. The restricted period is defined at U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(7).
(B) Each of the several Underwriters agrees with Guarantor and the
Company that:
(a) except to the extent permitted under the D Rules, (i) it has not
offered or sold Debt Warrants in bearer form to a person who is within the
United States or its possessions or to a United States person and (ii) it
will not offer or sell Debt Warrants in bearer form at any time to a person
who is within the United States or its possessions or to a United States
person;
-11-
(b) it has in effect procedures reasonably designed to ensure that its
employees or agents who are directly engaged in selling Debt Warrants in
bearer form are aware that such Debt Warrants may not be offered or sold at
any time to a person who is within the United States or its possessions or
to a United States person, except as permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt Warrants
in bearer form for purposes of resale in connection with their original
issuance and if it retains Debt Warrants in bearer form for its own
account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Warrants in bearer form for
the purpose of offering or selling such Debt Warrants, it will either (i)
obtain from such affiliate for the benefit of Guarantor and the Company the
representations and agreements contained in clauses (a), (b) and (c) or
(ii) be deemed to have repeated and confirmed the representations and
agreements contained in clauses (a), (b) and (c) with respect to such
affiliate;
(e) it will obtain for the benefit of Guarantor and the Company the
representations and agreements contained in clauses (a), (b), (c) and (d)
from any person other than its affiliate with whom it enters into a written
contract, as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(4) for
the offer or sale of Debt Warrants in bearer form;
(f) upon delivery of the global Debt Warrant it will cause Euroclear
or CEDEL, as the case may be, to transfer an interest in the global Debt
Warrant to the account of the person entitled thereto only after Guarantor
and the Company has received a signed certificate in writing (or an
electronic certificate described in U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(3)(ii)) stating that on such date (i) such beneficial
interest is owned by a person who is not a United States person or, if such
person is a United States person, it is a financial institution (as defined
in U.S. Treas. Reg. Section 1.165-12(c)(1)(v)) purchasing for its own
account or the account of a customer or (ii) such beneficial interest is
owned by a financial institution (described above) for purposes of resale
and has not been acquired for the purposes of resale directly or indirectly
within the United States or to United States persons (other than as
permitted by the applicable Treasury Regulations described above); and
-12-
(g) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may be
offered, sold, resold or delivered.
Terms used in the preceding paragraph have the meaning given to them by the U.S.
Internal Revenue Code and regulations thereunder, including the D Rules.
8. Indemnification and Contribution. Guarantor and the Company jointly
and severally agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (as amended
or supplemented if Guarantor and the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to Guarantor or the Company in writing by such Underwriter
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Offered Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if Guarantor and the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Offered Securities to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Guarantor, the Company, their respective directors, their
respective officers who sign the Registration Statement and each person, if any,
who controls Guarantor or the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from Guarantor and the Company to each Underwriter, but only
with reference to informa-
-13
tion relating to such Underwriter furnished to Guarantor or the Company by such
Underwriter in writing through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto. For purposes of the foregoing sentence, such information is
limited to the following, which is contained in the prospectus supplement and
preliminary prospectus supplement, in each case as amended or supplemented: the
information in the last paragraph of the cover page, in the last paragraph on
page S-2, and in the third, fourth (except for the first sentence thereof),
fifth and sixth paragraphs in the section entitled "Underwriting."
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which proceeding
indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by the Manager, in the case of parties indemnified
pursuant to the second preceding paragraph, and by Guarantor, in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified
-14-
party for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first or second paragraph
in this Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by Guarantor and the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
Guarantor or the Company, on the one hand, and of the Underwriters, on the other
hand, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by Guarantor and the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Offered Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Offered Securities
(before deducting expenses) received by Guarantor and the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of Guarantor or the Company, on the one hand, and of the Underwriters, on
the other hand, 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
Guarantor or the Company, on the one
-15-
hand, or by the Underwriters, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
Guarantor and the Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
allegedly 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' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amounts of Offered Securities purchased by each of
such Underwriters and not joint. The remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 8
and the representations and warranties of Guarantor and the Company contained
herein shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
Guarantor, the Company, their respective directors or officers or any person
controlling Guarantor or the Company and (iii) acceptance of and payment for any
of the Offered Securities.
9. Termination. This Agreement shall be subject to termination in the
Manager's absolute discretion, by notice given to Guarantor, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
-16-
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of Guarantor or the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
10. Defaulting Underwriters. If on the Closing Date any one or more of
the Underwriters shall fail or refuse to purchase Offered Securities that it has
or they have agreed to purchase on such date, and the aggregate amount of
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate amount
of the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Offered
Securities set forth opposite their respective names above bears to the
aggregate amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate amount of Offered Securities with respect to which
such default occurs is more than one-tenth of the aggregate amount of Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager, Guarantor and the Company for the purchase of such Offered Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, Guarantor or
the Company. In any such case either the Manager, on the one hand, or Guarantor
and the Company, on the other hand, shall have the right to postpone the Closing
Date but in no event for longer then seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other
-17-
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Guarantor or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason Guarantor or the Company shall be unable to
perform any of their respective obligations under this Agreement, Guarantor and
the Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Offered
Securities.
11. Miscellaneous. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the jurisdiction of the federal and state courts of the
United States of America (the "U.S. Courts") for any litigation arising out of
or relating to this Agreement, the Offered Securities, the Debt Warrant
Securities, the Indenture and the transactions contemplated hereby and thereby,
waives any objection to the laying of venue of any such litigation in the U.S.
Courts and agrees not to plead or claim in any U.S. Court that such litigation
brought therein has been brought in an inconvenient forum.
The Company hereby irrevocably appoints the Guarantor as its agent for
service of process regarding any litigation arising out of or relating to this
Agreement, the Offered Securities, the Debt Warrant Securities, the Indenture or
the transactions contemplated hereby or thereby.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
-18-
Exhibit A
Opinion of Baker & MacKenzie,
independent counsel for the Company
The opinion of Baker & MacKenzie, independent counsel for the Company,
to be delivered pursuant to Section 5(b) of the Underwriting Agreement shall be
to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(iv) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
A-1
(v) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (b) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability;
(vi) the Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(vii) the Offered Securities and the Debt Warrant Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and the Debt Warrant Agreement, as the case may
be, and delivered to and paid for (A) by the Underwriters in accordance
with the terms of the Underwriting Agreement or by institutional investors,
if any, pursuant to Delayed Delivery Contracts, in the case of the Offered
Securities, and (B) upon exercise of Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be
entitled to the benefits of the Indenture and the Debt Warrant Agreement,
as the case may be, and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b)
rights of acceleration, if any, and the availability of equitable remedies
may be limited by equitable principles of general applicability;
(viii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company enforceable in accordance with their respective
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be limited by
equitable principles of general applicability;
A-2
(ix) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture, the Offered, Securities, the Debt Warrant Securities, any
Delayed Delivery Contracts and the Debt Warrant Agreement, if any, will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval or authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Underwriting
Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, any Delayed Delivery Contract or the Debt Warrant Agreement, if
any, except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities;
(x) the statements (1) in the Prospectus, as amended or supplemented,
under the captions "Description of Debt Securities," "Description of Debt
Warrants," ["Plan of Distribution"] and _______________, (2) respecting the
Company in the Registration Statement under Item 15, (3) respecting the
Company, if any, in "Item 3 - Legal Proceedings" of Guarantor's most recent
annual report on Form 10-K incorporated by reference in the Prospectus and
(4) respecting the Company, if any, in "Item 1 - Legal Proceedings" of Part
II of Guarantor's quarterly reports on Form 10-Q, if any, filed since such
annual report, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(xi) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required;
A-3
(xii) such counsel is of the opinion ascribed to it in the Prospectus
under the caption "[Taxation]";
(xiii) under the laws of the Kingdom of The Netherlands, the choice of
New York law in this Agreement, the Indenture and the Debt Securities is a
valid choice of law, and the Company's submission to jurisdiction, consent
to service of process and appointment of any agent for service of process,
in each case as set forth in the Offered Securities, the Debt Warrant
Securities, the Indenture and the Underwriting Agreement, are valid and
effective;
(xiv) a holder of any Debt Security, the Trustee and any Underwriter
is entitled to sue as plaintiff in the courts of the Kingdom of The
Netherlands for the enforcement of its respective rights against the
Company; and such access to the courts of the Kingdom of The Netherlands
will not be subject to any conditions that are not applicable to residents
of the Kingdom of The Netherlands, citizens of the Kingdom of The
Netherlands or companies incorporated under the laws of the Kingdom of The
Netherlands; and
(xv) the issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and are owned by
Guarantor, free and clear of all liens, encumbrances, security interests
and claims.
Such counsel shall also state that no facts have come to its attention
to cause it to believe that (except for financial statements and schedules as to
which such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred to):
(i) any part of the Registration Statement when such part became effective (and
as of the date such opinion is delivered) contained (or contains) 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
(ii) the Prospectus, as amended or supplemented, if applicable, as of the date
of such opinion is delivered contains any untrue statement of a material fact or
omits 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. Such counsel may state that his belief is based upon his
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification.
A-4
Exhibit B
Opinion of Sidley & Austin,
independent counsel for Guarantor
The opinion of Sidley & Austin, independent counsel for the Company,
to be delivered pursuant to Section 5(c) of the Underwriting Agreement shall be
to the effect that:
(i) Guarantor has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on Guarantor and its subsidiaries, taken as a whole;
(ii) each subsidiary of Guarantor has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on Guarantor and its subsidiaries, taken as a
whole;
(iii) each of Guarantor and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on Guarantor and
its subsidiaries, taken as a whole;
(iv) the Underwriting Agreement has been duly authorized, executed and
delivered by Guarantor;
A-1
(v) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, and has been duly authorized, executed and
delivered by Guarantor and is a valid and binding agreement of Guarantor,
enforceable in accordance with its terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability;
(vi) the Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by Guarantor and is a valid and binding agreement of
Guarantor, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(vii) the Offered Securities and the Debt Warrant Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and the Debt Warrant Agreement, as the case may
be, and delivered to and paid for (A) by the Underwriters in accordance
with the terms of the Underwriting Agreement or by institutional investors,
if any, pursuant to Delayed Delivery Contracts, in the case of the Offered
Securities, and (B) upon exercise of Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be
entitled to the benefits of the Indenture and the Debt Warrant Agreement,
as the case may be, and will be valid and binding obligations of Guarantor,
in each case enforceable in accordance with their respective terms except
as (a) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(viii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by Guarantor and are valid and binding
agreements of Guarantor enforceable in accordance with their respective
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be limited by
equitable principles of general applicability;
(ix) the execution and delivery by Guarantor of, and the performance
by Guarantor of its obligations under, the
A-2
Underwriting Agreement, the Indenture, the Offered, Securities, the Debt
Warrant Securities, any Delayed Delivery Contracts and the Debt Warrant
Agreement, if any, will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of Guarantor or any agreement
or other instrument binding upon Guarantor or any of its subsidiaries that
is material to Guarantor and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Guarantor or
any subsidiary, and no consent, approval or authorization or order of or
qualification with any governmental body or agency is required for the
performance by Guarantor of its obligations under the Underwriting
Agreement, the Indenture, the Offered Securities, the Debt Warrant
Securities, any Delayed Delivery Contract or the Debt Warrant Agreement, if
any, except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities;
(x) the statements (1) in the Prospectus, as amended or supplemented,
under the captions "Description of Debt Securities," "Description of Debt
Warrants," "Plan of Distribution" and _______________, (2) in the
Registration Statement under Item 15, (3) in "Item 3 - Legal Proceedings"
of Guarantor's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (4) in "Item 1 - Legal Proceedings" of Part
II of Guarantor's quarterly reports on Form 10-Q, if any, filed since such
annual report, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(xi) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which Guarantor or any of
its subsidiaries is a party or to which any of the properties of Guarantor
or any of its subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or of
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described or
filed as required;
(xii) such counsel is of the opinion ascribed to it in the Prospectus
under the caption "[Taxation]"; and
A-3
(xiii) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules included therein
as to which such counsel need not express any opinion) complied when so
filed as to form in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (2) is of
the opinion that the Registration Statement and Prospectus, as amended or
supplemented, if applicable (except for financial statements and schedules
included therein as to which such counsel need not express any opinion),
comply as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that no facts have come to its attention
to cause it to believe that (except for financial statements and schedules as to
which such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred to):
(i) any part of the Registration Statement when such part became effective (and
as of the date such opinion is delivered) contained (or contains) 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
(ii) the Prospectus, as amended or supplemented, if applicable, as of the date
of such opinion is delivered contains any untrue statement of a material fact or
omits 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. Such counsel may state that his belief is based upon his
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification.
A-4
Exhibit C
Opinion of Mayer, Brown & Platt,
Counsel for the Underwriters
The opinion of Mayer, Brown & Platt, counsel for the Underwriters, to
be delivered pursuant to Section 5(d) of the Underwriting Agreement shall be to
the effect that:
(i) the Underwriting Agreement has been duly authorized, executed and
delivered by Guarantor and the Company;
(ii) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended, and has been duly authorized, executed and
delivered by Guarantor and the Company and is a valid and binding agreement
of Guarantor and the Company, enforceable in accordance with its terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b)
rights of acceleration and the enforceability of equitable remedies may be
limited by equitable principles of general applicability;
(iii) the Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by Guarantor and the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (b)
availability of equitable remedies may be limited by equitable principles
of general applicability;
(iv) the Offered Securities and the Debt Warrant Securities have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and the Debt Warrant Agreement, as the case may
be, and delivered to and paid for (A) by the Underwriters in accordance
with the terms of the Underwriting Agreement or by institutional investors,
if any, pursuant to Delayed Delivery Contracts, in the case of the Offered
Securities, and (B) upon exercise of Debt Warrants pursuant to the Debt
Warrant Agreement, in the case of the Debt Warrant Securities, will be
entitled to the benefits of the Indenture and the Debt Warrant Agreement,
as the case may be, and will be valid and binding obligations of Guarantor
and the Company in each case enforceable in accordance with their
respective terms except as (a) the enforceability
B-1
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration, if any, and the
enforceability of equitable remedies may be limited by equitable principles
of general applicability;
(v) the Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by Guarantor and the Company and are valid and
binding agreements of Guarantor and the Company, enforceable in accordance
with their respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vi) the statements in the Prospectus under "Description of Debt
Securities," "Description of Debt Warrants," "Plan of Distribution" and
"Underwriting" insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(vii) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules included therein
as to which such counsel need not express any opinion) complied when so
filed as to form in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (2) is of
the opinion that the Registration Statement and Prospectus, as amended or
supplemented, if applicable (except for financial statements and schedules
included therein as to which such counsel need not express any opinion),
comply as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that no facts have come to its attention
to cause it to believe that (except for financial statements and schedules as to
which such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred to):
(i) any part of the Registration Statement when such part became effective (and
as of the date such opinion is delivered) contained (or contains) 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
(ii) the Prospectus, as amended or supplemented,
B-2
if applicable, as of the date of such opinion is delivered contains any untrue
statement of a material fact or omits 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. Such counsel may state that his belief is based
upon his participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents thereof, but are
without independent check or verification.
B-3
Schedule I
DELAYED DELIVERY CONTRACT
__________________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from TUPPERWARE CORPORATION,
a Delaware corporation ("Guarantor") and [TUPPERWARE FINANCE COMPANY], a
corporation organized under the laws of the Kingdom of the Netherlands and a
wholly-owned subsidiary of Guarantor (the "Company"), and Guarantor and the
Company agree to sell to the undersigned the securities described in Schedule A
annexed hereto (the "Securities"), offered by the Prospectus dated September __,
1996 and Prospectus Supplement dated September __, 1996, receipt of copies of
which are hereby acknowledged at a purchase price stated in Schedule A and on
the further terms and conditions set forth in this agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from Guarantor and the Company
Securities in the principal amount and numbers on the delivery dates set forth
in Schedule A. Each such date on which Securities are to be purchased hereunder
is hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of ____________________, New York, N.Y., at 10:00 A.M. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than three full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
under-
I-1
signed is subject and (2) Guarantor and the Company shall have sold, and
delivery shall have taken place to the underwriters (the "Underwriters") named
in the Prospectus Supplement referred to above of, such part of the Securities
as is to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, Guarantor and the Company will mail or deliver to the undersigned
as its address set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company and a copy of the opinion of counsel for
Guarantor delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this agreement is acceptable to Guarantor and the Company, it is
requested that Guarantor and the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding agreement, as of the date first
above written, between Guarantor, the Company and the undersigned when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Yours very truly,
(Purchaser)
By
(Title)
(Address)
I-2
Accepted:
[TUPPERWARE FINANCE COMPANY]
By: __________________________
TUPPERWARE CORPORATION
By: __________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
- ----------------- --------------------- ----------
- ----------------- --------------------- ----------
- ----------------- --------------------- ----------
I-3
SCHEDULE A
----------
Securities:
- ----------
Principal amounts or Numbers to be Purchased:
- --------------------------------------------
Purchase Price:
- --------------
Delivery Dates:
- --------------
I-4