EXHIBIT 1(a)
DRAFT
6/13/96
_____________________________________________________________________________
______________________________________________________________________________
MERRILL LYNCH & CO., INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
----------------------
Dated: __________, 1996
______________________________________________________________________________
______________________________________________________________________________
TABLE OF CONTENTS
SECTION 1. Representations and Warranties................. 4
(a) Representations and Warranties by the Company.. 4
(i) Compliance with Registration Requirements...... 4
(ii) Incorporated Documents......................... 5
(iii) Independent Accountants........................ 5
(iv) Financial Statements........................... 5
(v) No Material Adverse Change in Business......... 6
(vi) Good Standing of the Company................... 6
(vii) Good Standing of Subsidiaries.................. 6
(viii) Authorization of Agreement..................... 7
(ix) Authorization of the Indenture................. 7
(x) Authorization of the Securities................ 7
(xi) Authorization of the Purchase Agreement........ 7
(xii) Description of Securities, Indenture and
Purchase Agreement............................. 8
(xiii) Absence of Defaults and Conflicts.............. 8
(xiv) Absence of Labor Dispute....................... 9
(xv) Absence of Proceedings......................... 9
(xvi) Exhibits....................................... 9
(xvii) Possession of Intellectual Property............ 9
(xviii) Absence of Further Requirements................ 9
(xix) Possession of Licenses and Permits.............10
(xx) Title to Property..............................10
(xxi) Compliance with Cuba Act.......................10
(b) Representations and Warranties by GVI..........10
(i) Good Standing of GVI...........................11
(ii) Delivery of IMC Common Stock...................11
(iii) Authorization of Agreement.....................11
(iv) Authorization of the Purchase Agreement........11
(v) Absence of Defaults and Conflicts..............11
(vi) Absence of Further Requirements................12
(vii) IMC Registration Statement and Prospectus......12
(c) Officer's Certificates.........................12
SECTION 2. Sale and Delivery to Underwriter; Closing......13
(a) Initial Securities.............................13
(b) Option Securities..............................13
(c) Payment........................................13
(d) Denominations; Registration....................13
SECTION 3. Covenants......................................14
(a) Covenants of the Company.......................14
(i) Compliance with Securities Regulations and
Commission Requests..................................14
(ii) Filing of Amendments.................................14
i
(iii) Delivery of ML&Co. Registration Statements...........14
(iv) Delivery of ML&Co. Prospectuses......................15
(v) Continued Compliance with Securities Laws............15
(vi) Blue Sky Qualifications..............................15
(vii) Rule 158.............................................16
(viii) Use of Proceeds......................................16
(ix) Listing..............................................16
(x) Reporting Requirements...............................16
(b) Covenant of GVI......................................16
SECTION 4. Payment of Expenses..................................16
(a) Expenses Payable by the Company......................16
(b) Expenses Payable by GVI..............................17
(c) Termination of Agreement.............................17
SECTION 5. Conditions...........................................18
(a) Conditions of Underwriter's Obligations..............18
(1) Effectiveness of ML&Co. Registration Statement.......18
(2) Effectiveness of IMC Registration Statement..........18
(3) Opinion of Counsel for the Company...................18
(4) Opinion of Counsel for IMC...........................18
(5) Opinion of Counsel for GVI...........................18
(6) Company Officers' Certificate........................18
(7) IMC Officers' Certificate............................18
(8) GVI Officer's Certificate............................19
(9) Company Accountant's Comfort Letter..................19
(10) IMC Accountant's Comfort Letters.....................19
(11) Company Bring-down Comfort Letter....................19
(12) IMC Bring-down Comfort Letter........................20
(13) Maintenance of Rating................................20
(14) Approval of Listing..................................20
(15) No Objection.........................................20
(16) Lock-up Agreements...................................20
(17) Conditions to Purchase of Option Securities..........20
(18) Additional Documents.................................21
(b) Conditions of the Company's Obligations..............21
(1) Effectiveness of IMC Registration Statement..........22
(2) Opinion of Counsel for the Company...................22
(3) Opinion of Counsel for IMC...........................22
(4) Opinion of Counsel for GVI...........................22
(5) IMC Officers' Certificate............................22
(6) GVI Officer's Certificate............................22
(7) IMC Accountant's Comfort Letters.....................22
(8) IMC Bring-down Comfort Letter........................22
(9) Conditions to Sale of Option Securities..............23
(c) Termination of Agreement.............................23
SECTION 6. Indemnification......................................24
(a) Indemnification of the Underwriter by the Company....24
ii
(b) Indemnification of the Underwriter and the
Company by GVI.........................................25
(c) Indemnification of the Company, Directors and Officers.26
(d) Actions against Parties; Notification..................26
(e) Settlement without Consent if Failure to Reimburse.....27
SECTION 7. Contribution...........................................27
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery ..................................... 29
SECTION 9. Termination of Agreement.............................. 29
(a) Termination; General.................................. 29
(b) Liabilities........................................... 30
SECTION 10. Notices............................................... 30
SECTION 11. Parties............................................... 30
SECTION 12. GOVERNING LAW AND TIME................................ 31
SECTION 13. Effect of Headings.................................... 31
iii
MERRILL LYNCH & CO., INC.
(a Delaware corporation)
____% STRYPES/SM/ DUE ____, 2001
Payable with Shares of Common Stock of IMC Global Inc.
UNDERWRITING AGREEMENT
----------------------
_____________, 1996
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1201
Ladies and Gentlemen:
Merrill Lynch & Co., Inc., a Delaware corporation (the "Company"), and GVI
Holdings, Inc., a Delaware corporation ("GVI"), confirm their respective
agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Underwriter") with respect to the issue and sale by the
Company and the purchase by the Underwriter of an aggregate of 5,661,119 of the
Company's Structured Yield Product Exchangeable for Stock/SM/, ____% STRYPES/SM/
Due ____, 2001 (each, a "STRYPES") and with respect to the grant by the Company
to the Underwriter of the option described in Section 2(b) hereof to purchase
all or any part of 849,167 additional STRYPES to cover over-allotments, if any.
The aforesaid 5,661,119 STRYPES (the "Initial Securities") to be purchased by
the Underwriter and all or any part of the 849,167 STRYPES subject to the option
described in Section 2(b) hereof (the "Option Securities") are hereinafter
called, collectively, the "Securities." The Securities are to be issued
pursuant to an indenture, dated as of April 1, 1983 and restated as of April 1,
1987, as amended and supplemented as of __________, 1996 (the "Principal
Indenture"), between the Company and Chemical Bank (successor by merger to
Manufacturers Hanover Trust Company), as trustee (the "Trustee"), as further
amended and supplemented by the Tenth Supplemental Indenture, dated as of June
__, 1996 (the "Supplemental Indenture"), between the Company and the Trustee,
relating to the STRYPES. The Principal Indenture, as amended and supplemented
by the Supplemental Indenture is hereinafter referred to as the "Indenture".
__________________________
/SM/ Service mark of Merrill Lynch & Co., Inc.
1
The STRYPES will be payable at maturity by delivery of the Maturity
Consideration (as defined in the Supplemental Indenture) subject to the
Company's option to deliver cash with an equal value. The Company, IMC and the
Underwriter are concurrently entering into an agreement dated the date hereof
(the "Registration Agreement") relating to the registration of shares of common
stock, par value $1.00 per share (the "IMC Common Stock"), of IMC Global Inc., a
Delaware corporation ("IMC"), Common Stock that may be deliverable by the
Company pursuant to the STRYPES.
The Company understands that the Underwriter proposes to make a public
offering of the Securities as soon as the Underwriter deems advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-65135) for the
registration of debt securities, including the Securities, and warrants under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed post-effective amendment no. 3 and post-effective
amendment no. 5 thereto, including a preliminary prospectus and preliminary
prospectus supplement relating to the offering of the Securities. Promptly
after execution and delivery of this Agreement, the Company will either (i)
prepare and file a prospectus and prospectus supplement in accordance with the
provisions of Rule 430A ("Rule 430A") of the 1933 Act Regulations and paragraph
(b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (an "ML&Co. Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). The information
included in such prospectus and prospectus supplement or in such ML&Co. Term
Sheet, as the case may be, that was omitted from such registration statement (as
so amended) at the time it became effective but that is deemed to be part of
such registration statement (as so amended) at the time it became effective (i)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (ii) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Any prospectus and prospectus supplement relating to the offering
of the Securities used before such registration statement (as so amended) became
effective, and any prospectus and prospectus supplement relating to the offering
of the Securities that omitted, as applicable, the Rule 430A Information or the
Rule 434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, in each case excluding any IMC
preliminary prospectus (as defined below) attached thereto, are herein called,
collectively, an "ML&Co. preliminary prospectus." Such registration statement
(as so amended), including the exhibits thereto, the schedules thereto, if any,
and the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act, at the time it became effective and including the Rule
430A Information and the Rule 434 Information, as applicable, is herein called
the "ML&Co. Registration Statement." Any registration statement filed by the
Company pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred
to as the "ML&Co. Rule 462(b) Registration Statement," and after such filing the
term "ML&Co. Registration Statement" shall include the ML&Co. Rule 462(b)
Registration Statement. The final prospectus and final prospectus supplement
relating to the offering of the Securities,
2
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, but excluding any IMC Prospectus (as defined below)
attached thereto, in the form first furnished to the Underwriter for use in
connection with the offering of the Securities are collectively referred to
herein as the "ML&Co. Prospectus." If Rule 434 is relied on, the term "ML&Co.
Prospectus" shall refer to the ML&Co. preliminary prospectus dated _______, 1996
together with the ML&Co. Term Sheet and all references in this Agreement to the
date of the ML&Co. Prospectus shall mean the date of the ML&Co. Term Sheet. For
purposes of this Agreement, all references to the ML&Co. Registration Statement,
any ML&Co. preliminary prospectus, the ML&Co. Prospectus or any ML&Co. Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the ML&Co.
Registration Statement, any ML&Co. preliminary prospectus or the ML&Co.
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the ML&Co. Registration Statement, any ML&Co.
preliminary prospectus or the ML&Co. Prospectus, as the case may be, and shall
be deemed to exclude all financial statements and schedules and other
information which is included or incorporated by reference in any IMC
preliminary prospectus or the IMC Prospectus which is attached to any ML&Co.
preliminary prospectus or the ML&Co. Prospectus; and all references in this
Agreement to amendments or supplements to the ML&Co. Registration Statement, any
ML&Co. preliminary prospectus or the ML&Co. Prospectus shall be deemed to mean
and include the filing of any document under the Securities Exchange Act of
1934, as amended (the "1934 Act"), which is incorporated by reference in the
ML&Co. Registration Statement, such ML&Co. preliminary prospectus or the ML&Co.
Prospectus, as the case may be.
IMC has filed with the Commission a registration statement on Form S-3 (No.
333- ) covering the registration of the shares of IMC Common Stock
deliverable at maturity of the Securities under the 1933 Act, including the
related preliminary prospectus or prospectuses. Each prospectus used before
such registration statement became effective is herein called an "IMC
preliminary prospectus." Such registration statement, including the exhibits
thereto, the schedules thereto, if any, and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective, is herein called the "IMC Registration Statement."
Any registration statement filed by IMC pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "IMC Rule 462(b) Registration
Statement," and after such filing the term "IMC Registration Statement" shall
include the IMC Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriter for
use in connection with the offering of the Securities is herein called the "IMC
Prospectus." For purposes of this Agreement, all references to the IMC
Registration Statement, any IMC preliminary prospectus, the IMC Prospectus or
any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to EDGAR.
3
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the IMC
Registration Statement, any IMC preliminary prospectus or the IMC Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the IMC Registration Statement, any IMC preliminary prospectus
or the IMC Prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the IMC Registration Statement, any IMC
preliminary prospectus or the IMC Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is incorporated by reference
in the IMC Registration Statement, such IMC preliminary prospectus or the IMC
Prospectus, as the case may be.
Prior to the closing under this Agreement, the Company, Merrill Lynch
Mortgage Capital Inc., a wholly-owned subsidiary of the Company (the "ML&Co.
Subsidiary"), and GVI will enter into a contract (the "Purchase Agreement"),
pursuant to which GVI will be obligated to deliver to the ML&Co. Subsidiary,
immediately prior to the maturity date of the Securities, the Maturity
Consideration required by the Company to pay and discharge all of the Securities
at maturity as described in the ML&Co. Prospectus, subject to GVI's right to
require that the obligations thereunder be satisfied by a cash payment based on
the value of such Maturity Consideration (the "Forward Purchase"). Under the
Purchase Agreement, the Company has agreed to pay and discharge the STRYPES by
delivering to the holders thereof at maturity the form of consideration that the
ML&Co. Subsidiary receives from GVI.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company represents
and warrants to the Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with the Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets the
-----------------------------------------
requirements for use of Form S-3 under the 1933 Act. Each of the ML&Co.
Registration Statement and any ML&Co. Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the ML&Co. Registration Statement or any ML&Co. Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the ML&Co. Registration Statement, any ML&Co.
Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the ML&Co. Registration
Statement, the ML&Co. Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and the
4
rules and regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not 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.
Neither the ML&Co. Prospectus nor any amendments or supplements thereto, at
the time the ML&Co. Prospectus or any such amendment or supplement was
issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to (A)
statements in or omissions from the ML&Co. Registration Statement or ML&Co.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for use in
the ML&Co. Registration Statement or ML&Co. Prospectus or (B) that part of
the ML&Co. Registration Statement that constitutes the Statement of
Eligibility on Form T-1 (the "Form T-1") under the 1939 Act of the Trustee.
Each ML&Co. preliminary prospectus and the prospectus relating to the
offering of the Securities filed as part of the ML&Co. Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and, if applicable, each
ML&Co. preliminary prospectus and the ML&Co. Prospectus delivered to the
Underwriter for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the ML&Co. Registration Statement and the
ML&Co. Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), as applicable, and, when read
together with the other information in the ML&Co. Prospectus, at the time
the ML&Co. Registration Statement became effective, at the time the ML&Co.
Prospectus was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), did not 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.
(iii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included in the ML&Co.
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
5
(iv) Financial Statements. The financial statements included in the
--------------------
ML&Co. Registration Statement and the ML&Co. Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the ML&Co.
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the ML&Co. Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
ML&Co. Registration Statement.
(v) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the ML&Co. Registration Statement
and the ML&Co. Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on its outstanding common stock and regular dividends
on its outstanding preferred stock in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the ML&Co. Prospectus and to enter into and perform its
obligations under this Agreement, the Indenture and the Purchase Agreement;
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company
-----------------------------
which is a "significant subsidiary" as defined in Rule 1-02 of Regulation
S-X under the 1933 Act (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the ML&Co.
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each
6
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect; except as otherwise disclosed in the ML&Co.
Registration Statement, all of the issued and outstanding capital stock of
each such Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary. The
only subsidiaries of the Company are (A) the subsidiaries listed in Exhibit
21 to the Annual Report on Form 10-K of the Company filed with the
Commission under Section 13 of the 1934 Act for the fiscal year ended
December 29, 1995 and (B) certain other subsidiaries which, considered in
the aggregate as a single subsidiary, do not constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X under the 1933 Act.
(viii) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company.
(ix) Authorization of the Indenture. The Indenture has been duly
------------------------------
authorized by the Company, duly qualified under the 1939 Act and duly
executed and delivered by the Company and (assuming the due authorization,
execution and delivery by the Trustee) will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(x) Authorization of the Securities. The Securities have been duly
-------------------------------
authorized by the Company for issuance and sale to the Underwriter pursuant
to this Agreement and, at the Closing Time, will have been duly executed by
the Company and, when authenticated by the Trustee in the manner provided
for in the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and will be
in the form contemplated by, and entitled to the benefits of, the
Indenture.
(xi) Authorization of the Purchase Agreement. The Purchase Agreement
---------------------------------------
has been duly authorized by the Company and the ML&Co. Subsidiary and, at
the Closing
7
Time, will have been duly executed and delivered by the Company and the
ML&Co. Subsidiary and (assuming the due authorization, execution and
delivery by GVI) will constitute a valid and binding agreement of the
Company and the ML&Co. Subsidiary, enforceable against the Company and the
ML&Co. Subsidiary in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xii) Description of Securities, Indenture and Purchase Agreement.
-----------------------------------------------------------
The Securities, the Indenture and the Purchase Agreement will conform in
all material respects to the respective statements relating thereto
contained in the ML&Co. Prospectus and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the ML&Co. Registration Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor
---------------------------------
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and (A) the execution, delivery and
performance by the Company of this Agreement, the Indenture, the Securities
and the Purchase Agreement and the consummation of the transactions
contemplated herein, therein and in the ML&Co. Registration Statement
(including the issuance and sale of the Securities and the delivery of
shares of IMC Common Stock pursuant thereto, the consummation of the
Forward Purchase and the use of the proceeds from the sale of the
Securities as described in the ML&Co. Prospectus under the caption
"Supplemental Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture, the Securities and the
Purchase Agreement and (B) the execution, delivery and performance by the
ML&Co. Subsidiary of the Purchase Agreement and the consummation of the
transactions contemplated therein and compliance by the ML&Co. Subsidiary
with its obligations under the Purchase Agreement have been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary or, to the best of the Company's knowledge, any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or
8
any subsidiary or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness of the
Company or any subsidiary (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the employees
------------------------
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent which may reasonably be expected to result in a
Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the ML&Co. Registration
Statement (other than as disclosed therein), or which might, individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, or which might, individually or in the aggregate, reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement, the Indenture or the Purchase Agreement (including the issuance
and sale of the Securities and the delivery of shares of IMC Common Stock
pursuant thereto and the consummation of the Forward Purchase) or the
performance by the Company of its obligations hereunder or thereunder or
the performance by the ML&Co. Subsidiary of its obligations under the
Purchase Agreement; the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of which
any of their respective property or assets is the subject which are not
described in the ML&Co. Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xvi) Exhibits. There are no contracts or documents which are of a
--------
character required to be described in the ML&Co. Registration Statement,
the ML&Co. Prospectus or the documents incorporated by reference therein or
to be filed as exhibits thereto which have not been so described or filed
as required.
(xvii) Possession of Intellectual Property. The Company and its
-----------------------------------
subsidiaries own or possess, or can acquire on reasonable terms, adequate
trademarks, service marks, trade names and other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
9
(xviii) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required (A) for the performance by the Company of its
obligations under this Agreement or the Purchase Agreement or the
consummation by the Company of the transactions contemplated herein or
therein (including the issuance and sale of the Securities and the delivery
of shares of IMC Common Stock pursuant thereto and the consummation of the
Forward Purchase) or for the due execution, delivery or performance of the
Indenture by the Company or (B) for the performance by the ML&Co.
Subsidiary of its obligations under the Purchase Agreement or the
consummation by the ML&Co. Subsidiary of the transactions contemplated
therein, except such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws and
except for the qualification of the Indenture under the 1939 Act.
(xix) Possession of Licenses and Permits. The Company and the
----------------------------------
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good
-----------------
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (A) are
described in the ML&Co. Prospectus or (B) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and all of the leases and subleases
material to the business of the Company and its subsidiaries, considered as
one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the ML&Co. Prospectus, are in full force and
effect, and neither the Company nor any subsidiary has any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
10
(xxi) Compliance with Cuba Act. The Company has complied with, and
------------------------
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulation thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(b) Representations and Warranties by GVI. GVI represents and warrants to
each of the Company and the Underwriter as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof, and agrees with each of the Company and
the Underwriter, as follows:
(i) Good Standing of GVI. GVI has been duly organized and is validly
--------------------
existing as a corporation in good standing under the laws of the State of
Delaware and has corporate power and authority to enter into and perform
its obligations under this Agreement and the Purchase Agreement.
(ii) Delivery of IMC Common Stock. At the date hereof, GVI is the
----------------------------
sole registered owner of and has all rights in and to at least 6,510,268
shares of IMC Common Stock, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity (except for the
security interest created under or pursuant to [describe existing bridge
loan], which will have been released at the Closing Time, and such as may
be created under or pursuant to that certain [describe new loan
agreement]). If immediately prior to maturity of the Securities GVI
delivers to the Company shares of IMC Common Stock pursuant to the Purchase
Agreement, upon delivery by GVI to the ML&Co. Subsidiary of such shares of
IMC Common Stock pursuant to the Purchase Agreement, the ML&Co. Subsidiary
will be the sole registered owner of the shares of IMC Common Stock so
delivered and, assuming the ML&Co. Subsidiary purchased for value in good
faith and without notice of any adverse claim, the ML&Co. Subsidiary will
have acquired all rights in and to such shares of IMC Common Stock, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. The delivery of shares of IMC Common Stock to the ML&Co.
Subsidiary at maturity of the Securities in accordance with the Purchase
Agreement is not, and at the time of delivery of such shares will not be,
subject to any right of first refusal or similar rights of any person
pursuant to any contract to which GVI or any of its subsidiaries is a party
or by which any of them is bound.
(iii) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by GVI.
(iv) Authorization of the Purchase Agreement. The Purchase Agreement
---------------------------------------
has been duly authorized by GVI and, at the Closing Time, will have been
duly executed and delivered by GVI and (assuming the due authorization,
execution and delivery by the Company and the ML&Co. Subsidiary) will
constitute a valid and binding agreement of GVI, enforceable against GVI in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject
11
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law). Amounts received by GVI
at Closing Time and at each Date of Delivery, if any, pursuant to the
Purchase Agreement will not be used by GVI for the purpose, whether
immediate, incidental or ultimate, of buying or carrying a margin stock, as
such terms are defined in Regulation G promulgated by the Board of
Governors of the Federal Reserve System.
(v) Absence of Defaults and Conflicts. The execution, delivery and
---------------------------------
performance by GVI of this Agreement and the Purchase Agreement and the
consummation by GVI of the transactions contemplated herein and therein and
compliance by GVI with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or GVI Repayment Event
(as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of GVI or any of
its subsidiaries pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument to which GVI or any of its subsidiaries is a party or by which
it or any of them may be bound, or to which any of the property or assets
of GVI or any of its subsidiaries is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not,
singly or in the aggregate, materially and adversely affect the ability of
GVI to perform its obligations under this Agreement or the Purchase
Agreement), nor will such action result in any violation of the provisions
of the charter or by-laws of GVI or any of its subsidiaries, or any
applicable law, statute, rule or regulation of any government or government
instrumentality having jurisdiction over GVI or any of its subsidiaries or
any of their assets, properties or operations (other than any state
securities or "blue sky" law, statute, rule or regulation, as to which no
representation and warranty is made), or any applicable judgment, order,
writ or decree of any government, government instrumentality or domestic
court having jurisdiction over GVI or any of its subsidiaries or any of
their assets, properties or operations (except in all cases for such
violations that would not, singly or in the aggregate, materially and
adversely affect the ability of GVI to perform its obligations under this
Agreement or the Purchase Agreement). As used herein, a "GVI Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by GVI or any of its
subsidiaries.
(vi) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the execution, delivery or performance by GVI
of this Agreement or the Purchase Agreement or the consummation by GVI of
the transactions contemplated by this Agreement or the Purchase Agreement,
except such as have been already obtained or as may be required under the
1933 Act or the 1933 Act Regulations or state securities laws.
12
(vii) IMC Registration Statement and Prospectus. The IMC
-----------------------------------------
Registration Statement, any IMC Rule 462(b) Registration Statement or any
post-effective amendments thereto, at the respective times the IMC
Registration Statement, any IMC Rule 462(b) Registration Statement or any
post-effective amendments thereto became effective, 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
not misleading. The IMC Prospectus or any amendment or supplement thereto,
at the time the IMC Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), did not and will
not include an untrue statement of a material fact and did not and will not
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The representations and warranties in this subsection shall
apply only to statements in or omissions from the IMC Registration
Statement (or any amendment thereto) or IMC Prospectus (or any amendment or
supplement thereto) made in reliance upon and in conformity with
information furnished to IMC in writing by GVI expressly for use in the IMC
Registration Statement (or any amendment thereto) or IMC Prospectus (or any
amendment or supplement thereto).
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Underwriter shall be deemed
a representation and warranty by the Company to the Underwriter as to the
matters covered thereby. Any certificate signed by any officer of GVI or any of
its subsidiaries delivered to the Underwriter or the Company shall be deemed a
representation and warranty by GVI to the Underwriter or the Company, as the
case may be, as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
-----------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at the price per STRYPES set forth in Schedule A, the
Initial Securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriter to purchase up
to an additional 849,167 STRYPES at the price per STRYPES set forth in Schedule
A. The option hereby granted will expire 30 days after the date hereof and may
be exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriter to the
Company setting forth the number of Option Securities as to which the
Underwriter is then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Underwriter, but shall not be
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined.
13
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Brown &
Wood, One World Trade Center, New York, New York 10048, or at such other place
as shall be agreed upon by the Underwriter and the Company, at 10:00 A.M.
(Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof, or such
other time not later than ten business days after such date as shall be agreed
upon by the Underwriter and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the Underwriter, payment of
the purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned offices, or at such other place as shall be
agreed upon by the Underwriter and the Company, on each Date of Delivery as
specified in the notice from the Underwriter to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriter of certificates for the Securities to be purchased by it.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Underwriter may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Underwriter in The City of New York not later than 10:00 A.M. (Eastern time) on
the business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be.
SECTION 3. Covenants.
---------
(a) Covenants of the Company. The Company covenants with the Underwriter
as follows:
(i) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(a)(ii), will comply with the requirements
of Rule 430A or Rule 434, as applicable, and will notify the Underwriter
immediately, and confirm the notice in writing, (A) when any post-effective
amendment to the ML&Co. Registration Statement shall become effective, or
any supplement to the ML&Co. Prospectus or any amended ML&Co. Prospectus
shall have been filed, (B) of the receipt of any comments from the
Commission, (C) of any request by the Commission for any amendment to the
ML&Co. Registration Statement or any amendment or supplement to the ML&Co.
Prospectus or for additional information, and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the ML&Co.
Registration Statement or of any order preventing or suspending the use of
any ML&Co. preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the
14
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(ii) Filing of Amendments. The Company will give the Underwriter
notice of its intention to file or prepare any amendment to the ML&Co.
Registration Statement (including any filing under Rule 462(b)), any ML&Co.
Term Sheet or any amendment, supplement or revision to either the
prospectus relating to the offering of the Securities included in the
ML&Co. Registration Statement at the time it became effective or to the
ML&Co. Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Underwriter with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Underwriter
or counsel for the Underwriter shall reasonably object.
(iii) Delivery of ML&Co. Registration Statements. The Company has
furnished or will deliver to the Underwriter, without charge, signed copies
of the ML&Co. Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated
by reference therein) and signed copies of all consents and certificates of
experts. If applicable, the copies of the ML&Co. Registration Statement
and each amendment thereto furnished to the Underwriter will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(iv) Delivery of ML&Co. Prospectuses. The Company has delivered to
the Underwriter, without charge, as many copies of each ML&Co. preliminary
prospectus as the Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to the Underwriter, without charge, during the
period when the ML&Co. Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the ML&Co. Prospectus
(as amended or supplemented) as the Underwriter may reasonably request. If
applicable, the ML&Co. Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the ML&Co.
Prospectus. If at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriter or for the Company, to amend the
ML&Co. Registration Statement or amend or supplement the ML&Co. Prospectus
15
in order that the ML&Co. Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of either such counsel, at any such time
to amend the ML&Co. Registration Statement or amend or supplement the
ML&Co. Prospectus in order to comply with the requirements of the 1933 Act
or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(a)(ii), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the ML&Co. Registration Statement or the ML&Co. Prospectus comply with
such requirements, and the Company will furnish to the Underwriter such
number of copies of such amendment or supplement as the Underwriter may
reasonably request.
(vi) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriter, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriter may designate and to
maintain such qualifications in effect for a period of not less than one
year from the later of the effective date of the ML&Co. Registration
Statement and any ML&Co. Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one
year from the effective date of the ML&Co. Registration Statement and any
ML&Co. Rule 462(b) Registration Statement.
(vii) Rule 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to
its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the ML&Co. Prospectus under "Supplemental Use of Proceeds."
(ix) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(x) Reporting Requirements. The Company, during the period when the
ML&Co. Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
16
(b) Covenants of GVI.
(i) Restriction on Sale of Securities. During a period of 90 days
----------------------------------
from the date of the IMC Prospectus, GVI will not, without the prior
written consent of the Underwriter, (x) offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, any shares of IMC Common
Stock, securities convertible into, exchangeable for or repayable with
shares of IMC Common Stock, or rights or warrants to acquire shares of IMC
Common Stock, or (y) cause to be filed any registration statement under the
1933 Act with respect to any shares of IMC Common Stock, securities
convertible into, exchangeable for or repayable with shares of IMC Common
Stock, or rights or warrants to acquire shares of IMC Common Stock. The
foregoing sentence shall not apply to the execution and delivery by GVI of
the Purchase Agreement or the consummation by GVI of the transactions
contemplated therein.
(ii) Purpose Statement. At or prior to Closing Time, GVI will deliver
-----------------
to the ML&Co. Subsidiary a duly executed purpose statement on Form F. R. G-
3 of the Board of Governors of the Federal Reserve System.
SECTION 4. Payment of Expenses. (a) Expenses Payable by the Company.
-------------------
The Company will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and filing of the
ML&Co. Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriter of this Agreement, the Indenture, the Purchase
Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriter, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(a)(vi) hereof,
including filing fees and the reasonable fees and disbursements of the Company's
counsel in connection therewith and in connection with the preparation of the
Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to
the Underwriter of copies of each ML&Co. preliminary prospectus, any ML&Co. Term
Sheets and of the ML&Co. Prospectus and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriter of copies of the
Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (ix) any fees payable in
connection with the rating of the Securities, (x) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriter in
connection with, the review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities and (xi) the fees
and expenses incurred in connection with the listing of the Securities on the
New York Stock Exchange.
(b) Expenses Payable by GVI. GVI will pay all expenses incident to the
performance of its obligations under this Agreement, including the fees and
disbursements of its counsel and advisors.
17
(c) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriter for all of its out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriter.
SECTION 5. Conditions.
----------
(a) Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company and GVI contained in Sections 1(a) and 1(b) hereof,
respectively, to the accuracy of the representations and warranties of IMC
contained in the Registration Agreement, to the accuracy of the statements in
certificates of any officer of the Company, IMC or GVI delivered pursuant to the
provisions hereof, to the performance by the Company and GVI of their respective
covenants and other obligations hereunder, to the performance by IMC of its
covenants and other obligations under the Registration Agreement, and to the
following further conditions:
(1) Effectiveness of ML&Co. Registration Statement. The ML&Co.
Registration Statement, including any ML&Co. Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the ML&Co. Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriter. A prospectus containing the
Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with
the requirements of Rule 430A) or, if the Company has elected to rely upon
Rule 434, an ML&Co. Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(2) Effectiveness of IMC Registration Statement. The IMC Registration
Statement, including any IMC Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the IMC Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriter.
(3) Opinion of Counsel for the Company. At Closing Time, the
Underwriter shall have received the favorable opinion, dated as of Closing
Time, of Brown & Wood, counsel for the Company, in form and substance
satisfactory to the Underwriter, to the effect set forth in Exhibit A
hereto and to such further effect as the Underwriter may reasonably
request.
(4) Opinion of Counsel for IMC. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of
Sidley & Austin, counsel for IMC, in form and substance satisfactory to the
Underwriter, to the effect set
18
forth in Exhibit B hereto and to such further effect as the Underwriter may
reasonably request.
(5) Opinion of Counsel for GVI. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of
Rosenberg & Liebentritt, P.C., counsel for GVI, in form and substance
satisfactory to the Underwriter, to the effect set forth in Exhibit C
hereto and to such further effect as the Underwriter may reasonably
request.
(6) Company Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the ML&Co. Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and the Underwriter shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the effectiveness
of the ML&Co. Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or are contemplated by the
Commission.
(7) IMC Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the IMC Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of IMC and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the Underwriter shall have received a certificate of the President or a
Vice President of IMC and of the chief financial or chief accounting
officer of IMC, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties of IMC contained in Section 1(a) of the Registration Agreement
are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) IMC has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time pursuant to the Registration Agreement, and (iv) no
stop order suspending the effectiveness of the IMC Registration Statement
has been issued and no proceedings for that purpose have been instituted
or, to the best of their knowledge, are pending or are contemplated by the
Commission.
(8) GVI Officer's Certificate. At Closing Time, the Underwriter shall
have received a certificate of the President or a Vice President of GVI,
dated as of Closing Time, to the effect that (i) the representations and
warranties of GVI contained in Section 1(b) hereof are true and correct
with the same force and effect as though expressly made
19
at and as of Closing Time and (ii) GVI has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time.
(9) Company Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Underwriter shall have received from Deloitte &
Touche LLP a letter dated such date, in form and substance satisfactory to
the Underwriter, 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 the ML&Co. Registration Statement and the ML&Co. Prospectus.
(10) IMC Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Underwriter shall have received from each of Ernst &
Young LLP and Arthur Andersen LLP a letter dated such date, in form and
substance satisfactory to the Underwriter, 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 the IMC Registration Statement
and the IMC Prospectus.
(11) Company Bring-down Comfort Letter. At Closing Time, the
Underwriter shall have received from Deloitte & Touche LLP a letter, dated
as of Closing Time, to the effect that they reaffirm the statements made in
the letter furnished by them pursuant to Section 5(a)(9) hereof, except
that the "specified date" referred to shall be a date not more than three
business days prior to Closing Time.
(12) IMC Bring-down Comfort Letter. At Closing Time, the Underwriter
shall have received from Ernst & Young LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished by them pursuant to Section 5(a)(10) hereof, except that the
"specified date" referred to shall be a date not more than three business
days prior to Closing Time.
(13) Maintenance of Rating. Since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to any of the
Company's securities by any "nationally recognized statistical rating
agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review its rating of any of the
Company's securities.
(14) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(15) No Objection. The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
20
(16) Lock-up Agreements. At the date of this Agreement, the
Underwriter shall have received an agreement substantially in the form of
Exhibit D hereto signed by each of the persons and entities listed on
Schedule B hereto.
(17) Conditions to Purchase of Option Securities. In the event that
the Underwriter exercises its option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Company and GVI contained herein, the representations
and warranties of IMC contained in the Registration Agreement and the
statements in any certificates furnished by the Company, IMC or GVI
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Underwriter shall have received:
(A) Company Officers' Certificate. A certificate, dated such Date of
-----------------------------
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at Closing Time pursuant to
Section 5(a)(6) hereof is true and correct as of such Date of
Delivery.
(B) IMC Officers' Certificate. A certificate, dated such Date of
-------------------------
Delivery, of the President or a Vice President of IMC and of the chief
financial or chief accounting officer of IMC confirming that the
certificate delivered at Closing Time pursuant to Section 5(a)(7)
hereof is true and correct as of such Date of Delivery.
(C) GVI Officers' Certificate. A certificate, dated such Date of
-------------------------
Delivery, of the President or a Vice President of GVI confirming that
the certificate delivered at Closing Time pursuant to Section 5(a)(8)
hereof is true and correct as of such Date of Delivery.
(D) Opinion of Counsel for the Company. The favorable opinion of
----------------------------------
Brown & Wood, counsel for the Company, in form and substance
satisfactory to the Underwriter, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
5(a)(3) hereof.
(E) Opinion of Counsel for IMC. The favorable opinion of Sidley &
--------------------------
Austin, counsel for IMC, in form and substance satisfactory to the
Underwriter, dated such Date of Delivery, to the same effect as the
opinion required by Section 5(a)(4) hereof.
(F) Opinion of Counsel for GVI. The favorable opinion of Rosenberg &
--------------------------
Liebentritt, P.C., counsel for GVI, in form and substance satisfactory
to the Underwriter, dated such Date of Delivery, to the same effect as
the opinion required by Section 5(a)(5) hereof.
21
(G) Company Bring-down Comfort Letter. A letter from Deloitte &
---------------------------------
Touche LLP, in form and substance satisfactory to the Underwriter and
dated such Date of Delivery, substantially the same in form and
substance as the letter furnished to the Underwriter pursuant to
Section 5(a)(11) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(H) IMC Bring-down Comfort Letter. A Letter from Ernst & Young LLP,
-----------------------------
in form and substance satisfactory to the Underwriter and dated such
Date of Delivery, substantially the same in form and substance as the
letter furnished to the Underwriter pursuant to Section 5(a)(12)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Date of Delivery.
(18) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriter shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
contained herein or in the Registration Agreement; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriter and counsel for the Underwriter.
(b) Conditions of the Company's Obligations. The obligations of the
Company hereunder are subject to the accuracy of the representations and
warranties of GVI contained in Section 1(b) hereof, to the accuracy of the
representations and warranties of IMC contained in the Registration Agreement,
to the accuracy of the statements in certificates of any officer of IMC or GVI
delivered pursuant to the provisions hereof, to the performance by GVI of its
covenants and other obligations hereunder, to the performance by IMC of its
covenants and other obligations under the Registration Agreement, and to the
following further conditions:
(1) Effectiveness of IMC Registration Statement. The IMC Registration
Statement, including any IMC Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the IMC Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Company.
(2) Opinion of Counsel for the Company. At Closing Time, the Company
shall have received the favorable opinion, dated as of Closing Time, of
Brown & Wood, counsel for the Company, to the same effect as the opinion
required by Section 5(a)(3) hereof.
22
(3) Opinion of Counsel for IMC. At Closing Time, the Company shall
have received the favorable opinion, dated as of Closing Time, of Sidley &
Austin, counsel for IMC, to the same effect as the opinion required by
Section 5(a)(4) hereof.
(4) Opinion of Counsel for GVI. At Closing Time, the Company shall
have received the favorable opinion, dated as of Closing Time, of Rosenberg
& Liebentritt, P.C., counsel for IMC and GVI, to the same effect as the
opinion required by Section 5(a)(5) hereof.
(5) IMC Officers' Certificate. At Closing Time, the Company shall
have received a certificate of the President or a Vice President of IMC and
of the chief financial or chief accounting officer of IMC, dated as of
Closing Time, to the same effect as the certificate delivered to the
Underwriter pursuant to Section 5(a)(7) hereof.
(6) GVI Officer's Certificate. At Closing Time, the Company shall
have received a certificate of the President or a Vice President of GVI,
dated as of Closing Time, to the same effect as the certificate delivered
to the Underwriter pursuant to Section 5(a)(8) hereof.
(7) IMC Accountant's Comfort Letters. At the time of the execution of
this Agreement, the Company shall have received from each of Ernst & Young
LLP and Arthur Andersen LLP a letter dated such date, in form and substance
satisfactory to the Company, substantially the same in form and substance
as the letter delivered to the Underwriter pursuant to Section 5(a)(10)
hereof.
(8) IMC Bring-down Comfort Letter. At Closing Time, the Company shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, in
form and substance satisfactory to the Company, substantially the same in
form and substance as the letter delivered to the Underwriter pursuant to
Section 5(a)(12) hereof.
(9) Conditions to Sale of Option Securities. In the event that the
Underwriter exercises its option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of GVI contained herein, the representations and warranties
of IMC contained in the Registration Agreement and the statements in any
certificates furnished by IMC or GVI hereunder shall be true and correct as
of each Date of Delivery and, at the relevant Date of Delivery, the Company
shall have received:
(A) IMC Officers' Certificate. A certificate, dated such Date of
-------------------------
Delivery, of the President or a Vice President of IMC and of the chief
financial or chief accounting officer of IMC confirming that the
certificate delivered at Closing Time pursuant to Section 5(b)(5)
hereof is true and correct as of such Date of Delivery.
(B) GVI Officers' Certificate. A certificate, dated such Date of
-------------------------
Delivery, of the President or a Vice President of GVI confirming that
the certificate delivered at
23
Closing Time pursuant to Section 5(b)(6) hereof is true and correct as
of such Date of Delivery.
(C) Opinion of Counsel for the Company. The favorable opinion, dated
----------------------------------
such Date of Delivery, of Brown & Wood, counsel for the Company, to
the same effect as the opinion required by Section 5(a)(17)(D) hereof.
(D) Opinion of Counsel for IMC. The favorable opinion, dated such
--------------------------
Date of Delivery, of Sidley & Austin, counsel for IMC, to the same
effect as the opinion required by Section 5(a)(17)(E) hereof.
(E) Opinion of Counsel for GVI. The favorable opinion, dated such
--------------------------
Date of Delivery, of Rosenberg & Liebentritt, P.C., counsel for GVI,
to the same effect as the opinion required by Section 5(a)(17)(F)
hereof.
(F) IMC Bring-down Comfort Letter. A Letter from Ernst & Young LLP,
-----------------------------
in form and substance satisfactory to the Company and dated such Date
of Delivery, substantially the same in form and substance as the
letter furnished to the Underwriter pursuant to Section 5(a)(17)(H)
hereof.
(c) Termination of Agreement. If any condition specified in subsection (a)
of this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase of
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the Underwriter to purchase the relevant Option Securities, may
be terminated by the Underwriter by notice to the Company and GVI at any time at
or prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect. If any condition
specified in subsection (b) of this Section shall not have been fulfilled when
and as required to be fulfilled, this Agreement, or, in the case of any
condition to the sale of Option Securities on a Date of Delivery which is after
the Closing Time, the obligations of the Company to sell the relevant Option
Securities, may be terminated by the Company by notice to the Underwriter and
GVI at any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of the Underwriter by the Company. The Company agrees
to indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material
24
fact contained in the ML&Co. Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information,
if applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any ML&Co. preliminary
prospectus or the ML&Co. Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, referred to under (i) above; provided
that (subject to Section 6(e) below) any such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, referred to under (i) above, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the ML&Co. Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any ML&Co. preliminary prospectus or the ML&Co.
Prospectus (or any amendment or supplement thereto).
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who controls an underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and who,
at the date of this Agreement, is a director or officer of the Company or
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, such indemnity agreement is subject to the undertaking of
the Company in the ML&Co. Registration Statement under Item 17 thereof.
(b) Indemnification of the Underwriter and the Company by GVI. GVI agrees
to indemnify and hold harmless (1) the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act and (2) the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, as follows:
25
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the IMC Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
IMC preliminary prospectus or the IMC Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, referred to under (i) above; provided
that (subject to Section 6(e) below) any such settlement is effected with
the written consent of GVI; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriter or the
Company, as the case may be), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, referred to under (i) above,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall apply only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the IMC Registration Statement (or any amendment thereto) or any IMC
preliminary prospectus or the IMC Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to IMC by GVI expressly for use in the IMC Registration Statement (or any
amendment thereto) or any IMC preliminary prospectus or the IMC Prospectus (or
any amendment or supplement thereto).
(c) Indemnification of the Company, Directors and Officers. The
Underwriter agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the ML&Co. Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the ML&Co.
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any ML&Co.
preliminary prospectus or the ML&Co. Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Underwriter expressly for use in the ML&Co. Registration
Statement (or any
26
amendment thereto) or such ML&Co. preliminary prospectus or the ML&Co.
Prospectus (or any amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder which it may have otherwise than
on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) or clause (1) of Section 6(b) above, counsel to the
indemnified parties shall be selected by the Underwriter, and, in the case of
parties indemnified pursuant to clause (2) of Section 6(b) or Section 6(c)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (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.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) and 6(b)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution.
------------
(a) If the indemnification provided for in Sections 6(a) and 6(c) is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then the Company and the Underwriter shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by
such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
27
Underwriter on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) 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
the Company on the one hand and of the Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriter on the other hand in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriter, in
each case as set forth on the cover of the ML&Co. Prospectus, or, if Rule 434 is
used, the corresponding location on the ML&Co. Term Sheet, bear to the aggregate
initial public offering price of the Securities as set forth on such cover. The
relative fault of the Company on the one hand and the Underwriter on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 7(a), the Underwriter shall
not 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 the
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7(a) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7(a). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7(a) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7(a), each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the ML&Co.
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
28
(b) If the indemnification provided for in Section 6(b) hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then GVI on the one hand and the Underwriter and the Company on the
other hand shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as incurred,
(i) in such proportion as is appropriate to reflect the relative benefits
received by GVI on the one hand and by the Underwriter and the Company on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) 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 GVI on
the one hand and of the Underwriter and the Company on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received from the offering of
the Securities pursuant to this Agreement shall be deemed to be such that the
Underwriter and the Company shall be responsible for that portion of the
aggregate amount of such losses, liabilities, claims, damages and expenses
represented by the percentage that the total underwriting discount received by
the Underwriter, as set forth on the cover of the ML&Co. Prospectus, or, if Rule
434 is used, the corresponding location on the ML&Co. Term Sheet, bears to the
aggregate initial public offering price of the Securities as set forth on such
cover and GVI shall be responsible for the balance. The relative fault of GVI
on the one hand and the Underwriter and the Company on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by GVI on the one hand or
by the Underwriter or the Company on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
Notwithstanding the provisions of this Section 7(b), the Underwriter and
the Company shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by the
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages which the Underwriter and the Company have otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
GVI, the Underwriter and the Company agree that it would not be just and
equitable if contribution pursuant to this Section 7(b) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7(b). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7(b) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
29
For purposes of this Section 7(b), each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company, IMC or GVI submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or controlling person, or
by or on behalf of the Company or GVI, and shall survive delivery of the
Securities to the Underwriter.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Underwriter may terminate this Agreement, by
notice to the Company and GVI, at any time at or prior to Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the ML&Co. Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has been, since the time of
execution of this Agreement, or since the respective dates as of which
information is given in the IMC Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of IMC and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (iii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriter,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iv) if trading in any securities of the Company or in the
IMC Common Stock has been suspended or limited by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental authority, or
(v) if a banking moratorium has been declared by either federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard
30
form of telecommunication. Notices to the Underwriter shall be directed to it
at Sears Tower Building, Suite 5500, Chicago, Illinois 60606, attention of Todd
Kaplan, Director; notices to the Company shall be directed to it at 100 Church
St., 12th Floor, New York, New York 10007, attention of the Secretary, with a
copy to the Treasurer at World Financial Center, South Tower, New York, New York
10080-6105; and notices to GVI shall be directed to it at Two North Riverside
Plaza, Suite 1100, Chicago, Illinois 60606, attention of Gus Athas.
SECTION 11. Parties. This Agreement shall each inure to the benefit of and
-------
be binding upon each of the Underwriter, the Company and GVI and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
31
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriter, the Company and GVI in accordance with its terms.
Very truly yours,
MERRILL LYNCH & CO., INC.
By_________________________________
Name:
Title:
GVI HOLDINGS, INC.
By_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By__________________________________
Authorized Signatory
32
SCHEDULE A
MERRILL LYNCH & CO. INC
____% STRYPES/SM/ DUE ____, 2001
1. The initial public offering price of the Securities shall be
$__________ per STRYPES.
2. The purchase price for the Securities to be paid by the
Underwriter shall be $___________ per STRYPES, being an amount equal to the
initial public offering price set forth above less $_______ per STRYPES.
3. The "Threshold Appreciation Price" with respect to the Securities
shall be $________.
__________________________
/SM/ Service mark of Merrill Lynch & Co., Inc.
Sch A - 1
[SCHEDULE B]
[List of persons and entities subject to lock-up]
Sch B - 1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(3)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the ML&Co.
Prospectus and to enter into and perform its obligations under the
Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S") has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the ML&Co. Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in the State of New
York; all of the issued and outstanding capital stock of MLPF&S has been duly
authorized and validly issued, is fully paid and non-assessable and, to the
best of our knowledge, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital stock
of MLPF&S was issued in violation of the preemptive or similar rights of any
securityholder of MLPF&S.
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
A-1
(vii) The Securities are in the form contemplated by the Indenture, have
been duly authorized by the Company and, assuming that the Securities have
been duly authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel need not determine
by an inspection of the Securities), the Securities have been duly executed,
issued and delivered by the Company and constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be entitled to the benefits of
the Indenture.
(viii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and
delivery thereof by GVI) constitutes a valid and binding agreement of the
Company and the ML&Co. Subsidiary, enforceable against the Company and the
ML&Co. Subsidiary in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(ix) The Indenture has been duly qualified under the 1939 Act.
(x) The Securities, the Indenture and the Purchase Agreement conform in
all material respects as to legal matters to the descriptions thereof
contained in the ML&Co. Prospectus.
(xi) The ML&Co. Registration Statement, including any ML&Co. Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the ML&Co. Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and, to the
best of our knowledge, no stop order suspending the effectiveness of the
ML&Co. Registration Statement or any ML&Co. Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
(xii) The ML&Co. Registration Statement, including any ML&Co. Rule
462(b) Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the ML&Co. Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
ML&Co. Registration Statement and ML&Co. Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules included
therein or omitted therefrom, and the Trustee's Statement of Eligibility on
Form T-1 (the "Form T-1"), as to which we express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
A-2
(xiii) The documents incorporated by reference in the ML&Co. Prospectus
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we 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 1933 Act or the
1934 Act, as applicable, and the rules and regulations of the Commission
thereunder.
(xiv) The IMC Registration Statement, including any IMC Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the IMC Prospectus pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to the
best of our knowledge, no stop order suspending the effectiveness of the IMC
Registration Statement or any IMC Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(xv) The IMC Registration Statement, including any IMC Rule 462(b)
Registration Statement, the IMC Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the IMC
Registration Statement and IMC Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which we express no opinion) complied as
to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(xvi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and
the 1933 Act Regulations, which have been obtained, or as may be required
under the securities or blue sky laws of the various states and except for the
qualification of the Indenture under the 1939 Act, as to which we express no
opinion) is necessary or required in connection with the due authorization,
execution and delivery of the Underwriting Agreement by the Company or the due
execution, delivery or performance of the Indenture or the Purchase Agreement
by the Company or for the offering, issuance, sale or delivery of the
Securities or for the due execution, delivery or performance of the Purchase
Agreement by the ML&Co. Subsidiary.
(xvii) The execution, delivery and performance of the Underwriting
Agreement, the Indenture, the Securities and the Purchase Agreement and the
consummation of the transactions contemplated in the Underwriting Agreement,
the Purchase Agreement and in the ML&Co. Registration Statement (including the
issuance and sale of the Securities and the delivery of shares of IMC Common
Stock pursuant thereto, the consummation of the Forward Purchase and the use
of the proceeds from the sale of the Securities as described in the ML&Co.
Prospectus under the caption "Supplemental Use of Proceeds") and compliance by
the Company with its obligations under the Underwriting Agreement, the
Indenture, the Securities and the Purchase Agreement and (B) the execution,
delivery and performance by the ML&Co. Subsidiary of the Purchase Agreement
and the consummation by the ML&Co. Subsidiary of the transactions contemplated
therein and compliance by the ML&Co. Subsidiary with its obligations under the
Purchase Agreement do not and will not, whether with or without the giving of
notice or lapse
A-3
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xiii) of the Underwriting
Agreement) under or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any subsidiary
pursuant to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to us, to
which the Company or any subsidiary is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse Effect),
nor will such action result in any violation of the provisions of the charter
or by-laws of the Company or any subsidiary, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to us, of any
government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their respective
properties, assets or operations.
We have participated in conferences with officers and representatives of
the Company and IMC, representatives of the independent accountants of the
Company and IMC, and the Underwriter at which the contents of the ML&Co.
Registration Statement and Prospectus, the contents of the IMC Registration
Statement and Prospectus and related matters were discussed and, although we
are not passing upon or assuming responsibility for the accuracy, completeness
or fairness of the statements contained or incorporated by reference in said
Registration Statements and Prospectuses and have made no independent check or
verification thereof, on the basis of the foregoing, nothing has come to our
attention that would lead us to believe (i) that the ML&Co. Registration
Statement or any amendment thereto, including the Rule 430A Information and
Rule 434 Information (if applicable), (except for financial statements and
schedules and other financial data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which we make no
statement), at the time such ML&Co. Registration Statement or any such
amendment became effective or at the date of the Underwriting Agreement,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the ML&Co. Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included or incorporated by reference therein or
omitted therefrom, as to which we make no statement), at the time the ML&Co.
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (ii) that the IMC Registration
Statement or any amendment thereto, (except for financial statements and
schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we make no statement), at the time
such IMC Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the IMC Prospectus or any amendment
or supplement thereto (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom, as to which we make no statement), at the time the IMC Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material
A-4
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
A-5
Exhibit B
FORM OF OPINION OF IMC'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(4)
(i) IMC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the IMC Prospectus and to enter into and
perform its obligations under the Registration Agreement and is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(ii) The shares of issued and outstanding capital stock of IMC have been
duly authorized and validly issued and are fully paid and non-assessable; and
none of the outstanding shares of capital stock of IMC was issued in violation
of the preemptive or other similar rights of any securityholder of IMC.
(iii) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the IMC Prospectus and
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the IMC
Registration Statement, all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of our knowledge, is owned by IMC, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary.
(iv) The Registration Agreement has been duly authorized, executed and
delivered by IMC.
(v) The IMC Registration Statement, including any IMC Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the IMC Prospectus pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to the
best of our knowledge, no stop order suspending the
B-1
effectiveness of the IMC Registration Statement or any IMC Rule 462(b)
Registration Statement has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or threatened by the
Commission.
(vi) The IMC Registration Statement, including any IMC Rule 462(b)
Registration Statement, the IMC Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the IMC
Registration Statement and IMC Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which we express no opinion) complied as
to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
(vii) The documents incorporated by reference in the IMC Prospectus
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we express no opinion), when they were filed
with the Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(viii) The form of certificate used to evidence the IMC Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and by-laws of IMC and the
requirements of the New York Stock Exchange.
(ix) To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which IMC or any
subsidiary is a party, or to which the property of IMC or any subsidiary is
subject, before or brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially
and adversely affect the properties or assets thereof or the consummation of
the transactions contemplated in the Registration Agreement or the performance
by IMC of its obligations thereunder.
(x) The information in the Prospectus under
"___________________________," "_________________________" and "Description of
Capital Stock," and in the Registration Statement under Items 14 and 15, to
the extent that it constitutes matters of law, summaries of legal matters,
IMC's charter and bylaws or legal proceedings, or legal conclusions, has been
reviewed by us and is correct in all material respects.
(xi) To the best of our knowledge, there are no statutes or regulations,
and no legal or governmental proceedings pending or threatened to which IMC or
any of its subsidiaries is a party or to which any of the properties of IMC or
any of its subsidiaries is subject, that are required to be described in the
IMC Prospectus that are not described as required.
(xii) All descriptions in the IMC Registration Statement of contracts
and other documents to which IMC or its subsidiaries are a party are accurate
in all material respects; to the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or referred to in the IMC
Registration Statement or to be filed as exhibits thereto other than those
described or referred to
B-2
therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material
respects.
(xiii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than under the 1933 Act and
the 1933 Act Regulations, which have been obtained, or as may be required
under the securities or blue sky laws of the various states, as to which we
express no opinion) is necessary or required in connection with the due
authorization, execution, and delivery by IMC of the Registration Agreement or
the performance by IMC of its obligations thereunder.
(xiv) The execution, delivery and performance of the Registration
Agreement and the consummation of the transactions contemplated in the
Registration Agreement and in the IMC Registration Statement and compliance by
IMC with its obligations under the Registration Agreement do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(xi) of the Registration Agreement) under or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of IMC or any subsidiary pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
any other agreement or instrument, known to us, to which IMC or any subsidiary
is a party or by which it or any of them may be bound, or to which any of the
property or assets of IMC or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would
not have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of IMC or any
subsidiary, or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over IMC or any subsidiary or
any of their respective properties, assets or operations.
[(xv) IMC is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the 1940 Act.]
We have participated in conferences with officers and representatives of
IMC, representatives of the independent accountants of IMC, and the
Underwriter at which the contents of the IMC Registration Statement and the
IMC Prospectus and related matters were discussed and, although we are not
passing upon or assuming responsibility for the accuracy, completeness or
fairness of the statements contained or incorporated by reference in the IMC
Registration Statement and the IMC Prospectus and have made no independent
check or verification thereof except as described in paragraph (x) above, on
the basis of the foregoing, nothing has come to our attention that would lead
us to believe that the IMC Registration Statement or any amendment thereto
(except for financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to
which we make no statement), at the time such IMC Registration Statement or
any such amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
IMC Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which
B-3
we need make no statement), at the time the IMC Prospectus was issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
[In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the State of New
York, the corporate laws of the State of Delaware or the federal laws of the
United States of America, to the extent such counsel deems proper and
specified in such opinion, upon the opinion of other counsel whom such counsel
believes to be reliable, provided that such counsel furnishes copies thereof
to the Underwriter and states that such opinion of such local counsel is
satisfactory in form and substance and the Underwriter and counsel for the
Underwriter are entitled to rely thereon, and (B) as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates
of responsible officers of IMC and public officials. As used in this Exhibit
B, the terms "Material Adverse Effect," "Subsidiary" and "Subsidiaries" shall
have the meanings ascribed to them in the Registration Agreement.]
B-4
Exhibit C
FORM OF OPINION OF GVI'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)(5)
(i) GVI has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and has corporate power and authority to enter into and perform
its obligations under the Underwriting Agreement and the Purchase Agreement.
(ii) GVI is the sole registered owner of and has all rights in and to at
least 6,510,268 shares of IMC Common Stock, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity (except such as
may be created under or pursuant to that certain [describe new loan
agreement]).
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by GVI.
(iv) The Purchase Agreement has been duly authorized, executed and
delivered by GVI and (assuming the due authorization, execution and delivery
thereof by the Company) constitutes a valid and binding agreement of GVI,
enforceable against GVI in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(v) The execution, delivery and performance by GVI of the Underwriting
Agreement and the Purchase Agreement and the consummation by GVI of the
transactions contemplated therein and compliance by GVI with its obligations
thereunder have been duly authorized by all necessary corporate action and do
not and will not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or default or GVI
Repayment Event under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of GVI or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or instrument,
known to us, to which GVI or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or assets of GVI
or any of its subsidiaries is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not, singly or in the
aggregate, materially and adversely affect the
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ability of GVI to perform its obligations under the Underwriting Agreement or
the Purchase Agreement), nor will such action result in any violation of the
provisions of the charter or by-laws of GVI or any of its subsidiaries, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over GVI or any of its subsidiaries or any of
their respective assets, properties or operations (except for such violations
that would not, singly or in the aggregate, materially and adversely affect
the ability of GVI to perform its obligations under the Underwriting Agreement
or the Purchase Agreement).
(vi) To the best of our knowledge, no filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency (other than under the 1933 Act
and the 1933 Act Regulations, which have been obtained, or as may be required
under the securities or blue sky laws of the various states, as to which we
need express no opinion) is necessary or required in connection with the due
authorization, execution and delivery by GVI of the Underwriting Agreement or
the Purchase Agreement or the performance by GVI of its obligations
thereunder.
We have participated in conferences with officers and representatives of
GVI, IMC and the Underwriter at which the contents of the IMC Registration
Statement and the IMC Prospectus relating to GVI were discussed and, although
we are not passing upon or assuming responsibility for the accuracy,
completeness or fairness of the statements contained in the IMC Registration
Statement and the IMC Prospectus relating to GVI and have made no independent
check or verification thereof, on the basis of the foregoing, nothing has come
to our attention that would lead us to believe that the IMC Registration
Statement or any amendment thereto (only with respect to the information
included therein or omitted therefrom relating to GVI), at the time such IMC
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the IMC Prospectus or any amendment or supplement thereto
(only with respect to the information included therein or omitted therefrom
relating to GVI), at the time the IMC Prospectus was issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
[In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than [the laws of the State of New
York,] the laws of the State of Illinois, the corporate laws of the State of
Delaware or the federal laws of the United States of America, to the extent
such counsel deems proper and specified in such opinion, upon the opinion of
other counsel whom such counsel believes to be reliable, provided that such
counsel furnishes copies thereof to the Underwriter and states that such
opinion of such local counsel is satisfactory in form and substance and the
Underwriter and counsel for the Underwriter are entitled to rely thereon, and
(B) as to matters of fact (but not as to legal conclusions), to the extent
they deem proper, on certificates of responsible officers of GVI and public
officials.]
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[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER
STOCKHOLDERS PURSUANT TO SECTION 5(a)(16)]
Exhibit D
___________, 1996
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering of STRYPES by Merrill Lynch & Co. Inc.
---------------------------------------------------------------
Ladies and Gentlemen:
The undersigned, a stockholder [and an officer and/or director] of IMC Global
Inc., a Delaware corporation (the "Company"), understands that Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch")
proposes to enter into an Underwriting Agreement (the "Underwriting Agreement")
with Merrill Lynch & Co., Inc. ("ML&Co.") and GVI Holdings, Inc. providing for
the public offering of ML&Co.'s Structured Yield Product Exchangeable for
Stock/sm/, __% STRYPES/sm/ due _________, 2001, payable at maturity with shares
of Common Stock, par value $1.00 per share (the "IMC Common Stock"), of the
Company. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned agrees with Merrill Lynch that,
during a period of [90] days from the date of the Underwriting Agreement, the
undersigned will not, without the prior written consent of Merrill Lynch, offer,
sell, contract to sell or otherwise dispose of, directly or indirectly, any
shares of IMC Common Stock or any securities convertible into, exchangeable for
or repayable with shares of IMC Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or cause to be filed any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing; provided that, notwithstanding the foregoing,
during such 90-day period the undersigned may sell, without the prior written
consent of Merrill Lynch, the greater of (i) 25,000 shares of IMC Common Stock
and (ii) 25% of the total number of shares of IMC Common Stock which the
undersigned either owns or has the power of disposition as of the date hereof.
Very truly yours,
Signature:
Print Name:
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