XXXXXX XXXXXXX GROUP INC.
$______________
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
____________, ____
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Xxxxxxx Group Inc., a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
from time to time by the Company of up to $_____________ (or the equivalent
thereof in one or more foreign currencies or composite currencies) aggregate
initial public offering price of its Global Medium-Term Notes, Series C, due
more than 9 months from the date of issue (the "Notes") and its Global Units,
Series C (the "Units" and together with the Notes, the "Program Securities"), in
each case subject to reduction as a result of the sale of the Company's (i)
Global Medium-Term Notes, Series D and Series E, to be sold primarily outside of
the United States, (ii) Global Units, Series D and Series E, to be sold
primarily outside of the United States, and (iii) the sale of certain of the
Company's other debt securities, warrants, preferred stock, purchase contracts
and units.
The Notes may be issued as senior indebtedness (the "Series C
Senior Notes") or as subordinated indebtedness (the "Series C Subordinated
Notes") of the Company. The Series C Senior Notes will be issued, either alone
or as part of a Unit, pursuant to the provisions of a senior indenture dated as
of April 15, 1989, as supplemented by a first supplemental senior indenture
dated as of May 15, 1991 and a second supplemental senior indenture dated as of
April 15, 1996 (as so supplemented and as may be further supplemented or amended
from time to time, the "Senior Debt Indenture"), between the Company and The
Chase Manhattan Bank (formerly known as Chemical Bank), as trustee (the "Senior
Debt Trustee"). The Series C Subordinated Notes will be issued pursuant to the
provisions of a subordinated indenture dated as of April 15, 1989, as
supplemented by a first supplemental subordinated indenture dated as of May 15,
1991 and a second supplemental subordinated indenture dated as of April 15, 1996
(as so supplemented and as may be further supplemented or amended from time to
time, the "Subordinated Debt Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Subordinated Debt Trustee"). The
Senior Debt Indenture and the Subordinated Debt Indenture are sometimes
hereinafter referred to individually as an "Indenture" and collectively as the
"Indentures," and the Senior Debt Trustee and the Subordinated Debt Trustee are
sometimes hereinafter referred to individually as a "Trustee" and collectively
as the "Trustees."
The Units will be issued pursuant to the Unit Agreement dated as
of January 24, 1997, among the Company, The Chase Manhattan Bank, as Unit Agent,
as Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein
and the holders from time to time of the Units described therein. Units may
include one or more (i) Series C Senior Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies or
composite currencies or (c) commodities, (iii) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies or
composite currencies or (c) commodities or (iv) any combination thereof. The
applicable prospectus supplement will specify whether Notes, Universal Warrants
and Purchase Contracts comprised by a Unit may or may not be separated from any
series of Units. Universal Warrants issued as part of a Unit will be issued
pursuant to the Universal Warrant Agreement dated as of January 24, 1997 (the
"Universal Warrant Agreement") between the Company and The Chase Manhattan Bank,
as Warrant Agent. Purchase Contracts entered into by the Company and the holders
thereof will be governed by the Unit Agreement.
The Notes whether issued alone, or as part of a Unit, will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants issued as part of a Unit will have the exercise prices,
exercise dates, expiration dates and other terms as set forth in supplements to
the Basic Prospectus. The Purchase Contracts issued as part of a Unit will have
the closing dates, purchase or sale prices and other terms as set forth in
supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agent for the
purpose of soliciting and receiving offers to purchase Program Securities from
the Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, you
agree to use reasonable efforts to solicit and receive offers to purchase
Program Securities upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify. In addition, you
may also purchase Program Securities as principal pursuant to the terms of a
terms agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating to
the Program Securities. Such registration statement, including the exhibits
thereto, as amended at the Commencement Date (as hereinafter defined), is
hereinafter referred to as the "Registration Statement." The Company proposes to
file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Program Securities. The prospectus in the form in which it appears
in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement or supplements (each a "Prospectus Supplement")
specifically relating to Notes, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Basic Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant4, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with you as of the Commencement Date, as of each date on
which you solicit offers to purchase Program Securities, as of each date on
which the Company accepts an offer to purchase Program Securities (including any
purchase by you as principal pursuant to a Notes Terms Agreement or a Units
Terms Agreement), as of each date the Company issues and delivers Program
Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this Section
1(b) do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to you furnished to the
Company in writing by you expressly for use therein or (B) to those parts of the
Registration Statement that constitute the Statements of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustees and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any date on
which you solicit offers to purchase Program Securities or on which the Company
accepts an offer to purchase Program Securities, shall be deemed not to cover
information concerning an offering of particular Program Securiton will be set
forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined) has
been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and the Universal
Warrant Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(g) The forms of Notes, whether issued alone or as part of a
Unit, have been duly authorized and established in conformity with the
provisions of the relevant Indenture and, when the Notes have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes will be
entitled to the benefits of such Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general principles
of equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(h) The forms of Units, including the forms of Universal Warrants
and Purchase Contracts which, in addition to the Notes, may comprise such Units,
have been duly authorized and established in conformity with the provisions of
(i) in the case of the Unitsrrants, the Universal Warrant Agreement. When the
Units have been delivered to and duly paid for by the purchasers thereof and (a)
any Purchase Contracts included in such Units have been executed by the Company
and countersigned and executed by the Unit Agent and (b) any Universal Warrants
included in such Units have been executed by the Company and countersigned by
the Warrant Agent, the Units (including any such Purchase Contracts or Universal
Warrants contained therein) will be entitled to the benefits of the Unit
Agreement and, in the case of the Universal Warrants, the Universal Warrant
Agreement and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(i) The execution and delivery by the Company of this Agreement,
the Notes (whether issued alone or as part of a Unit), the Units (including any
Purchase Contracts and Universal Warrants included therein) the Indentures, the
Unit Agreement, the Universal Warrant Agreement and any applicable Written Notes
Terms Agreement or Written Units Terms Agreement and the performance by the
Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Notes, the Units, the Indentures, the
Unit Agreement, the Universal Warrant Agreement and any applicable Notes Terms
Agreement or Units Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Program Securities; provided, however, that no representation is
made or warranty given as to whether the purchase of the Program Securities
constitutes a "prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or id its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(m) Xxxxxx Xxxxxxx & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered with
the Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
(n) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing
business with the Government of Cuba or with any person or affiliate located in
Cuba.
Notwithstanding the foregoing, it is understood and agreed that
the representations and warranth) (except as to due authorization of the Units,
Universal Warrants and Purchase Contracts) and (i), when made as of the
Commencement Date, or as of any date on which you solicit offers to purchase
Program Securities, with respect to any Program Securities the payments of
principal or interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company, baskets
of such securities, equity indices or other factors, shall be deemed not to
address the application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with your actions as
agent hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct you to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Program Securities. Upon receipt of at least
one business day's prior notice from the Company, you will forthwith suspend
solicitations of offers to purchase Program Securities from the Company until
such time as the Company has advised you that such solicitation may be resumed.
While such solicitation is suspended, the Company shall not be required to
deliver any certificates, opinions or letters in accordance with Sections 5(a),
5(b) and 5(c); provided, however, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for (i) in the case of
Notes, issued alone or as part of a Unit, a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the
Notes, (ii) in the case of Units, a change in the exercise price, exercise date
or period or expiration of an underlying Universal Warrant or a change in the
settlement date or purchase or sale price of an underlying Purchase Contract or
(iii) for a change you deem to be immaterial), you shall not be required to
resume soliciting offers to purchase Program Securities until the Company has
delivered such certificates, opinions and letters as you may request.
The Company agrees to pay to you, as consideration for the sale
of each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any underlying
Note's maturity or the terms of the Units and of the securities comprised by
such Units) of the principal amount of such Note or, in the case of Units, the
face amount of such Unit (provided that the commission for Notes having, or
Units including Notes or other securities having, a maturity of 30 years or
greater will be negotiated) or such other discount as may be specified in the
Prospectus Supplement relating to such Note or Unit.
You shall communicate to the Company, orally or in writing, each
offer to purchase Program Securities received by you as agent that in your
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Program Securities and may reject any offer
in whole or in part. You shall have the right to reject any offer to purchase
Program Securities that you consider to be unacceptable, and any such rejection
shall not be deemed a breach of your agreements contained herein. The procedural
details relating to the issue and delivery of Program Securities sold by you as
agent and the payment therefor shall be as set forth in the Administrative
Procedures (as hereinafter defined).
(b) Purchases as Principal. Each sale of Program Securities to
you as principal shall be made in accordance with the terms of this Agreement.
In connection with each such sale, the Company will enter into a Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a written
agreement between you and the Company, which may be substantially in the form of
Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of Notes, a
"Written Notes Terms Agreement" and, in the case of Units, a "Written Units
Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal
pursuant to a Notes Terms Agreement or Units Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each (i) Note Terms Agreement shall specify the principal amount of Notes
to be purchased by you pursuant thereto, the maturity date of such Notes, the
price to be paid to the Company for such Notes, the interest rate and interest
rate formula, if any, applicable to such Notes and any other terms of such Notes
and (ii) Unit Terms Agreement shall specify (a) the information set forth in (i)
above with respect to any Notes issued as part of a Unit, (b) with respect to
Universal Warrants issued as part of a Unit, the exercise price, the exercise
date or period, the expiration date and any other terms of such Universal
Warrants, and (c) with respect to Purchase Contracts issued as part of a Unit,
the settlement date, the purchase or sale price or any other terms of such
Purchase Contracts. Each such Notes Terms Agreement or Units Terms Agreement may
also specify any requirements for officers' certificates, opinions of counsel
and letters from the independent auditors of the Company pursuant to Section 4
hereof. A Notes Terms Agreement and a Unit Terms Agreement may also specify
certain provisions relating to the reoffering of such Notes or Units, as the
case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall
specify the time and place of delivery of and payment for such Notes or Units,
as the case may be. Unless otherwise specified in a Notes Terms Agreement or a
Units Terms Agreement, the procedural details relating to the issue and delivery
of Notes or Units, as the case may be, purchased by you as principal and the
payment therefor shall be as set forth in the Administrative Procedures. Each
date of delivery of and payment for Program Securities to be purchased by you as
principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as the
case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, if you are purchasing Notes or Units, as principal you may
resell such Notes or Units to other dealers. Any such sales may be at a
discount, which shall not exceed the amount set forth in the Prospectus
Supplement relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Global Medium-Term Notes, Series C and the Global Units, Series
C, Administrative Procedures (attached hereto as Exhibit B) (the "Administrative
Procedures"), as amended from time to time. The Administrative Procedures may be
amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 4
of this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as agent of the Company shall
be delivered at the office of Xxxxx Xxxx & Xxxxxxxx, your counsel, not later
than 4:00 p.m., New Yoay agree upon in writing, but in no event later than the
day prior to the earlier of (i) the date on which you begin soliciting offers to
purchase Program Securities and (ii) the first date on which the Company accepts
any offer by you to purchase Program Securities as principal. The date of
delivery of such documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or any Notes Terms Agreement or Units
Terms Agreement, the Company will not file any Prospectus Supplement relating to
the Program Securities or any amendment to the Registration Statement unless the
Company has previously furnished to you a copy thereof for your review and will
not file any such proposed supplement or amendment to which you reasonably
object; provided, however, that the foregoing requirement shall not apply to any
of the Company's periodic filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies
of which filings the Company will cause to be delivered to you promptly after
being transmitted for filing with the Commission. Subject to the foregoing
sentence, the Company will promptly cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in accordance with Rule 424(b)
under the Securities Act. The Company will promptly advise you (i) of the filing
of any amendment or supplement to the Basic Prospectus, (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threateninby the Company of any notification with respect to the suspension of
the qualification of the Program Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as possible the
withdrawal thereof. If the Basic Prospectus is amended or supplemented as a
result of the filing under the Exchange Act of any document incorporated by
reference in the Prospectus, you shall not be obligated to solicit offers to
purchase Program Securities so long as you are not reasonably satisfied with
such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act, any event
occurs or condition exists as a result of which the Prospectus, as then amended
or supplemented, would include an untrue statement of a material fact, or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances when the Prospectus, as then amended or supplemented,
is delivered to a purchaser, not misleading, or if, in your opinion or in the
opinion of the Company, it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law, the
Company will immediately notify you by telephone (with confirmation in writing)
to suspend solicitation of offers to purchase Program Securities and, if so
notified by the Company, you shall forthwith suspend such solicitation and cease
using the Prospectus, as then amended or supplemented. If the Company shall
decide to amend or supplement the Registration Statement or Prospectus, as then
amended or supplemented, it shall so advise you promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to tspectus, as
then amended or supplemented, satisfactory in all respects to you, that will
correct such statement or omission or effect such compliance and will supply
such amended or supplemented Prospectus to you in such quantities as you may
reasonably request. If any documents, certificates, opinions and letters
furnished to you pursuant to paragraph (f) below and Sections 5(a), 5(b) and
5(c) in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will resume the
solicitation of offers to purchase Program Securities hereunder. Notwithstanding
any other provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request and shall furnish to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters
as you may request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securittement
with respect to each sale of Program Securities. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earning statement shall
be made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(d) The Company will furnish to you, without charge, a signed
copy of the Registration Statement, including exhibits and all amendments
thereto, and as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto as you may
reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to maintain such qualifications for as long as you shall
reasonably request.
(f) During the term of this Agreement, the Company shall furnish
to you such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Unit Agreement, the Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units Terms Agreement
and the performance by the Company of its obligations hereunder or thereunder as
you may from time to time reasonably request.
(g) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Program
Securities is consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Notes Terms Agreement or Units Terms
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Program Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, of the Trustees and
their counsel, the Unit Agent and its counsel, and the Warrant Agent and its
counsel (iv) y) under securities or Blue Sky laws in accordance with the
provisions of Section 3(e), including filing fees and the fees and disbursements
of your counsel in connection therewith and in connection with the preparation
of any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to
you in quantities as hereinabove stated of copies of the Registration Statement
and all amendments thereto and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to you of copies of the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any Blue Sky
or Legal Investment Memoranda, (vii) any fees charged by rating agencies for the
rating of the Program Securities, (viii) the fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities Dealers,
Inc., (ix) the fees and disbursements of your counsel incurred in connection
with the offering and sale of the Program Securities, including any opinions to
be rendered by such counsel hereunder, and (x) any out-of-pocket expenses
incurred by you; provided that any advertising expenses incurred by you shall
have been approved by the Company.
(i) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect to
such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of (i) in the case of Notes, any debt securities of the Company substantially
similar to the Notes set forth in such Notes Terms Agreement (other than (A) the
Notes that are to be sold pursuant to such Notes Terms Agreement, (B) Notes
previously agreed to be sold by the Company and (C) commercial paper issued in
the ordinary course of business) or (ii) in the case of Units, any securities
substantially similar to such Units (other than (A) the Units that are sold
pursuant to such Units Terms Agreement or (B) Units previously agreed to be sold
by the Company), in each case, except as may otherwise be provided in the
applicable Notes Terms Agreement or Units Terms Agreement.
4. Conditions of the Obligations of the Agent. Your obligation to
solicit offers to purchase Program Securities as agent of the Company, your
obligation to purchase Program Securities as principal pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to solicit
offers to purchase Program Securities, at the time of such solicitation, and, in
the case of your or any other purchaser's obligation to purchase Program
Securities, at the time the Company accepts the offer to purchase such Program
Securities and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such solicitation
or at the time such offer to purchase was made, that, in your judgment,
is material and adverse and that makes it, in your judgment,
impracticable to market the Program Securities on the terms and in the
manner contemplated by the Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (B) suspension of trading of any securities of the Company on
any exchange or in any over-the-counter market, (C) declaration of a
general moratorium on commercial banking activities in New York by
either Federal or New York State authorities or (D) any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and,
in the case of any of the events described in clauses (ii)(A) through
(D), such event, singly or together with any other such event, makes
it, in your judgment, impracticable to market the Program Securities on
the terms and in the manner contemplated by the Prospectus, as amended
or supplemented at the time of such solicitation or at the time such
offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in the
case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received:
(i) The opinion, dated as of such date, of Xxxxxxxx X. Xxxxx,
General Counsel and Secretary of the Company, or of other counsel
satisfactory to the Agent and who is an officer of the Company, to the
effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(B) each of Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx
Xxxxxxx International Incorporated (each a "Material Subsidiary")
has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the
manner described in the Prospectus, as amended or supplemented,
except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written Notes
Terms Agreement or Written Units Terms Agreement has been duly
authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and
the Universal Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(F) the forms of Notes, whether issued alone or as part of
a Unit, have been duly authorized and established in conformity
with the provisions of the relevant Indenture and, if the Notes
had been executed by the Company and authenticated by the
relevant Trustee or its duly appointed agent in accordance with
the provisions of the relevant Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such
opinion, the Notes would be entitled to the benefits of such
Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(G) the forms of Units, including the forms of Universal
Warrants and Purchase Contracts which, in addition to the Notes,
may comprise such Units, have been duly authorized and
established in conformity with the provisions of (i) in the case
of Units and Purchase Contracts, the Unit Agreement and (ii) in
the case of the Universal Warrants, the Universal Warrant
Agreement, and if the Units (including the Universal Warrants and
the Purchase Contracts) had been delivered to and duly paid for
by the purchasers thereof (and any Universal Warrant included
therein had been executed by the Company and countersigned by the
Warrant Agent and any Purchase Contracts included therein had
been executed by the Company and executed and countersigned by
the Unit Agent) on the date of such opinion, the Units (including
the Universal Warrants and Purchase Contracts contained therein)
would be entitled to the benefits of the Unit Agreement and in
the case of the Warrants, the Universal Warrant Agreement, and
would be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as
(i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) and
is subject to general principles of equity, regardless of whether
such enforceability is considered at proceedings in equity or at
law;
(H) the execution and delivery by the Company of the Notes
(whether issued alone or as part of a Unit), the Units (including
any Purchase Contract or Universal Warrant included therein), the
Indentures, the Unit Agreement, the Universal Warrant Agreement
and any applicable Written Notes Terms Agreement or Written Units
Terms Agreement and the performance by the Company of its
obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement
and any applicable Notes Terms Agreement or Units Terms Agreement
will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its consolidated
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any U.S. governmental
body, agency or court having jurisdiction over the Company or any
of its consolidated subsidiaries, and no consent, approval,
authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or
Units Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Program Securities; provided,
however, that no opinion is expressed on whether the purchase of
the Program Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act
of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended;
(I) the statements (1) in the Prospectus, as then amended
or supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement), "Description of Debt Securities" (in
the Basic Prospectus), "Description of Units" (in the Prospectus
Supplement and in the Basic Prospectus), "Plan of Distribution"
(in the Prospectus Supplement and in the Basic Prospectus),
"Description of Purchase Contracts" (in the Basic Prospectus) and
"Description of Warrants" (in the Basic Prospectus), (2) in the
Registration Statement, as then amended or supplemented, under
Item 15, (3) in "Item 3 - Legal Proceedings" of the Company's
most recent annual report on Form 10-K incorporated by reference
in the Prospectus and (4) in "Item 1 - Legal Proceedings" of Part
II of the Company's quarterly reports on Form 10-Q, if any, filed
since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(J) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its consolidated subsidiaries is a party or
to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus, as
then amended or supplemented, and are not so described or of any
U.S. federal or state statutes, regulations, contracts or other
documents governed by U.S. federal or state law that are required
to be described in the Registration Statement or the Prospectus,
as then amended or supplemented, or to be filed or incorporated
by reference as exhibits to such Registration Statement that are
not described, filed or incorporated by reference as required;
and
(K) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus as then amended or supplemented
(except as to financial statements and schedules included therein
as to which such counsel need not express any opinion), complied
when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) has no reason to believe that any part
of the Registration Statement (except as to financial statements
and schedules as to which such counsel need not express any
belief and except for that part of the Registration Statement
that constitutes the Forms T-1 heretofore referred to), as then
amended, if applicable, when such part became effective
contained, and the Registration Statement (except as to financial
statements and schedules included therein, as to which such
counsel need not express any belief and except for the part of
the Registration Statement that constitutes the Form T-1) as of
the date such opinion is delivered, contains any untrue statement
of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules included therein as to which such counsel need not
express any opinion), comply as to form in all material respects
with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (4) has no reason to believe
that the Prospectus, as then amended or supplemented, if
applicable (except for financial statements and schedules as to
which such counsel need not express any belief), as of the date
such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the opinion and
belief set forth in clauses (3) and (4) above shall be deemed not
to cover information concerning an offering of particular Notes
or Units to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx,
your special counsel, covering the matters in subparagraphs (D), (E),
(F), (G) and (I) (with respect to statements in the Prospectus, as then
amended or supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement), "Description of Debt Securities" (in the
Basic Prospectus), "Description of Units" (in the Prospectus Supplement
and the Basic Prospectus), "Plan of Distribution" (in the Prospectus
Supplement and in the Basic Prospectus), "Description of Purchase
Contracts" (in the Basic Prospectus) and "Description of Warrants" (in
the Basic Prospectus)) and clauses (2), (3) and (4) of subparagraph (K)
in paragraph (b)(i) above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the Notes), (G)
(except as to due authorization of the Units, Universal Warrants and
Purchase Contracts), (H), (I)(1) and (K)(3) and (4) of paragraph (b)(i)
above, when contained in an opinion delivered on the Commencement Date
or pursuant to Section 5(b), shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or interest
on which, or any other payments with respect to which, will be
determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company,
baskets of such securities, equity indices or other factors.
With respect to subparagraph (K) of paragraph (b)(i) above,
Xxxxxxxx X. Xxxxx or such other counsel for the Company may state that
his opinion and belief are based upon his participation, or the
participation of someone under his supervision, in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to
clauses (2), (3) and (4) of subparagraph (K) of paragraph (b)(i) above,
Xxxxx Xxxx & Xxxxxxxx may state that their opinion and belief are based
upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but
not including documents incorporated therein by reference) and review
and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
(iii) The opinion, dated as of such date, of Shearman & Sterling,
special counsel to the Company, to the effect that the statements set
forth under the caption "United States Federal Taxation" in the
Prospectus Supplement and under the caption "Limitations on Issuance of
Bearer Debt Securities and Bearer Warrants" in the Basic Prospectus,
insofar as such statements relate to statements of law or legal
conclusions under the laws of the United States or matters of United
States law, fairly present the information called for and fairly
summarize the matters referred to therein.
The opinion of Shearman & Sterling, described in paragraph
(b)(iii) above shall be rendered to you at the request of the Company
and shall so state therein.
(c) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date,
you shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes
Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date,
the Company's independent auditors shall have furnished to you a letter or
letters, dated as of the Commencement Date or such Settlement Date, as the case
may be, in form and substance satisfactory to you containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement providing solely for (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in the
case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement date
or purchase or sale price of an underlying Purchase Contract or (iii) for a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished forthwith to you
a written opinion of couuch amendment or supplement, as the case may be, shall
be in a form satisfactory to you and shall be of the same tenor as the opinion
referred to in Section 4(b)(i), but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion. In lieu of such opinion, counsel last furnishing such an
opinion to you may furnish to you a letter to the effect that you may rely on
such last opinion to the same extent as though it were dated the date of such
letter (except that statements in such last opinion will be deemed to relate to
the Registration Statement and the Prospectus as amended or supplemented to the
time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person, if any, who controls you within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by you or any such controlling person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained of or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to you furnished to the Company in writing by you expressly for use
therein.
(b) You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you expressly
for use in the Registration Statement or the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemni mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you, in the case
of parties indemnified pursuant to paragraph (a) above, and by the Company, in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the in effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein in connection with any offering of Program Securities then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and you on the other hand from
the offering of such Program Securities 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 you on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and you on the other hand in connection with the offering of such Program
Securities shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Program Securities (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by you in respect thereof. The relative fault of the Company on the one
hand and of you on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by you and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and you agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, you shall not be required to contribute any amount in excess of the
amount by which the total price at which the Program Securities referred to in
paragraph (d) above that were offered and sold to the public through you exceeds
the amount of any damages that you have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain in full force and effect
regardless of (i) any termination of this Agreement or any such Notes Terms
Agreement or Units Terms Agreement, (ii) any investigation made by or on behalf
of you or any person controlling you or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Program Securities.
7. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had such
sale been consummated.
8. Termination. This Agreement may be terminated at any time
either by the Company or by you upon the giving of written notice of such
termination to the other party hereto, but without prejudice to any rights,
obligations or liabilities of either party hereto accrued or incurred prior to
such termination. The termination of this Agreement shall not require
termination of any Notes Terms Agreement or Units Terms Agreement, and the
termination of any such Notes Terms Agreement or Units Terms Agreement shall not
require termination of this Agreement. If this Agreement is terminated, the
provisions of the third paragraph of Section 2(a), the last sentence of Section
3(b) and Sections 3(c), 3(h), 6, 7, 9, 11 and 13 shall survive; provided that if
at the time of termination an offer to purchase Program Securities has been
accepted by the Company but the time of delivery to the purchaser or its agent
of such Program Securities has not occurred, the provisions of Sections 2(b),
2(c), 3(a), 3(b), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such
delivery has been made.
9. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to you, will be mailed,
delivered or telefaxed and confirmed to you at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Manager, Credit Department (telefax number: 212-
703-4575), with a copy to 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Managing Director, Debt Syndicate (telefax number: 212-
764-7490) or, if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to the Company at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Secretary.
10. Successors. This Agreement and any Notes Terms Agreement or
Units Terms Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
11. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
XXXXXX XXXXXXX GROUP INC.
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
The foregoing Agreement
is hereby confirmed
and accepted as of the date
first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By:
-----------------------------------
Name:
Title:
EXHIBIT A
XXXXXX XXXXXXX GROUP INC.
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
_______________, 19__
Xxxxxx Xxxxxxx Group Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: U.S. Distribution Agreement
dated ______________
(the "U.S. Distribution Agreement")
The undersigned agrees to purchase your Global Medium-Term Notes,
Series C, having the following terms:
Floating
Fixed Rate Rate
All Notes: Notes: Notes:
----------------------------------------- ------------------------------- ---------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Index Currency:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Maturity Date: Exchange Rate Agent (if any): Interest Reset Period:
Initial Accrual Period OID: Reference Dealers: Maximum Interest Rate:
Total Amount of OID: Face Amount (if any): Minimum Interest Rate:
Original Yield to Maturity: Fixed Amount of each Interest Payment Date(s):
Indexed Currency (if any):
Optional Repayment Date(s): Aggregate Fixed Amount of Interest Payment Period:
each Indexed Currency (if
any):
Optional Redemption Applicability of Issuer's Calculation Agent:
Date(s): Option to Extend Original
Maturity Date:
Initial Redemption Date: If yes, state Final Maturity Reporting Service:
Date:
Initial Redemption Variable Rate Renewable
Percentage: Notes:
Annual Redemption Redemption Dates:
Percentage Reduction:
Ranking: Redemption Percentage:
Other Provisions: Initial Maturity Date:
Final Maturity Date:
Applicability of Issuer's
Option to reset Spread or
Spread Multiplier:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 9
through 13 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(h), 6, 9, 11, and 13 of the U.S. Distribution Agreement
shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required: ________________
XXXXXX XXXXXXX & CO. INCORPORATED
By ______________________________________
Title:
Accepted:
XXXXXX XXXXXXX GROUP INC.
By ___________________________
Title:
EXHIBIT A-1
XXXXXX XXXXXXX GROUP INC.
GLOBAL UNITS, SERIES C
UNITS TERMS AGREEMENT
________________, 19 __
Xxxxxx Xxxxxxx Group Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: U.S. Distribution Agreement dated _____________
(the "U.S. Distribution Agreement")
The undersigned agrees to purchase your Global Units, Series C,
[specified designation] having the following terms:
Purchase Contracts
Universal Warrants
Units: Issued as Part of a Unit: Issued as Part of a Unit:
------------------------------------- ------------------------------- -------------------------------
Settlement Date and Time Designation of the Series of Designation of the Series
Warrants [Call] [Put] of Purchase Contracts:
Warrants: [Purchase][Sale] Purchase
Contracts
Number (Face Amount) Warrant Property: Aggregate Number of
Purchase Contracts:
Purchase Contract
Property:
Severability: Aggregate Number of Quantity per Purchase
Warrants: Contract:
Purchase Price
Other Terms: Settlement Date:
Date(s) upon which Payment Location:
Warrants may be exercised:
Method of Settlement:
Currency of Settlement
Payment:
Contract Fees, if any:
Universal Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
------------------------------------- ------------------------------- -------------------------------
Expiration Date:
Currency in which exercise Corporation Acceleration:
payments shall be made:
Holders' Acceleration:
Exchange Rate (or method
of calculation: Redemption Provisions:
Form of Settlement:
[Call Price:]*
Other Terms:
[Formula for determining
Cash Settlement Value:]**
[Amount of Warrant
Property Salable per
Warrant:]***
[Put Price for such specified
amount of Warrant Property
per Warrant:]
[Method of delivery of any
Warrant Property to be
delivered for sale upoon
exercise of Warrants:]***
Other Terms:
---------
* Applicable to Call Warrants
** Applicable to Put Warrants
*** Applicable to Put Warrants only if such Put Warrants contemplate that the
holdel deliver Warrant Property to settle Put Warrants
All Notes Issued Fixed Rate Notes Floating Rate Notes
as Part of a Unit: Issued as Part of a Unit: Issued as Part of a Unit:
----------------------------------------- ------------------------------- ---------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Index Currency:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Maturity Date: Exchange Rate Agent (if any): Interest Reset Period:
Initial Accrual Period OID: Reference Dealers: Maximum Interest Rate:
Total Amount of OID: Face Amount (if any): Minimum Interest Rate:
Original Yield to Maturity: Fixed Amount of each Interest Payment Date(s):
Indexed Currency (if any):
Optional Repayment Date(s): Aggregate Fixed Amount of Interest Payment Period:
each Indexed Currency (if
any):
Optional Redemption Applicability of Issuer's Calculation Agent:
Date(s): Option to Extend Original
Maturity Date:
Initial Redemption Date: If yes, state Final Maturity Reporting Service:
Date:
Initial Redemption Variable Rate Renewable
Percentage: Notes:
Annual Redemption Redemption Dates:
Percentage Reduction:
Ranking: Redemption Percentage:
Other Provisions: Initial Maturity Date:
Final Maturity Date:
Applicability of Issuer's
Option to reset Spread or
Spread Multiplier:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 9
through 13 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(h), 6, 9, 11, and 13 of the U.S. Distribution Agreement
shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required: ________________
XXXXXX XXXXXXX & CO. INCORPORATED
By ______________________________________
Title:
Accepted:
XXXXXX XXXXXXX GROUP INC.
By ___________________________
Title:
