EXHIBIT 1.1
THE XXXXXXX XXXXXX CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
________ ___, 2000
From time to time, The Xxxxxxx Xxxxxx Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "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 pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). If the Company has filed as abbreviated registration statement
to register additional Debt
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Securities pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants to
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and agrees with each of the Underwriters that:
a. The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect; and no
proceedings for such purpose are pending before or threatened by the Commission.
b. (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder; (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee.
c. The Company is a duly incorporated, validly existing corporation in
good standing under the laws of the State of Delaware, has the
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corporate power and authority to own its property and 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 of Xxxxxx Holdings, Inc. ("Holdings"), Xxxxxxx Xxxxxx & Co.,
Inc. ("Xxxxxxx Xxxxxx") and each other subsidiary of the Company that is a
"significant subsidiary" within the meaning of Rule 1-02 of Regulation S-X of
the Commission (each, a "Significant Subsidiary" and collectively, the
"Significant Subsidiaries") is a duly incorporated, validly existing corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and 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. This Agreement has been duly authorized, executed and delivered by
the Company.
f. Each of the Senior Debt Indenture dated as of July 15, 1993, as
amended (the "Senior Debt Indenture"), and the Senior Subordinated Debt
Indenture dated as of July 15, 1993, as amended (the "Senior Subordinated Debt
Indenture"), has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
g. The Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company, enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer or conveyance, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) the availability of equitable remedies may
be limited by equitable principles of general applicability.
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h. The Offered Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the relevant Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, in the case of the Underwriters' Securities, or
by institutional investors in accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities, will be entitled to the
benefits of the relevant Indenture and will be valid and binding obligations of
the Company, in each case enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration, if any, and the availability of equitable remedies may be limited
by equitable principles of general applicability.
i. The execution and delivery by the Company of, and the performance
by the company of its obligations under, this Agreement, the Senior Debt
Indenture, the Senior Subordinated Debt Indenture, the Offered Securities and
the Delayed Delivery Contracts will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or Xxxxxxx
Xxxxxx 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 Senior Debt Indenture, the Senior Subordinated Debt
Indenture, the Offered Securities or the Delayed Delivery Contracts, or for the
performance by Xxxxxxx Xxxxxx of its obligations under this Agreement, except
such as have been obtained, and such as may be required by the securities or
Blue Sky laws of the various states and territories or similar laws in
connection with the offer and sale of the Offered Securities; provided, however,
that no representation is made as to whether the purchase of the Offered
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 that could reasonably be expected to result in a material adverse
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 (exclusive of any amendments or supplements thereto
effected since the date of the Underwriting Agreement).
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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. The Company is not an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
m. Each of the Company and its Significant 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.
n. Each of the Company and its Significant Subsidiaries is duly
registered as a broker-dealer, municipal securities broker or dealer, investment
adviser or transfer agent, as the case may be, in each jurisdiction wherein the
conduct of its business requires such registration, and each of the Company and
its Significant Subsidiaries is in compliance in all material respects with all
applicable laws, rules, regulations, orders, by-laws and similar requirements in
connection with such registrations, except to the extent that the failure to be
so registered or be in compliance would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
x. Xxxxxxx Xxxxxx is a member in good standing of the associations and
exchanges indicated in the Prospectus and is registered as a broker-dealer with
the Commission and in all 50 states, the District of Columbia and Puerto Rico,
except to the extent that the failure to be in good standing or be so registered
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
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Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into
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only with institutional investors approved by the Company. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Public Offering. The Company is advised by the Manager that the
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Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided in this Section 4,
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payment for the Underwriters' Securities shall be made to the Company in Federal
or other funds immediately available in New York City at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Underwriters' Securities,
registered in such names and in such denominations as the Manager shall request
in writing not less than two full business days prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Underwriters' Securities to the Underwriters duly paid.
5. Conditions to Closing. The several obligations of the Underwriters
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hereunder are subject to the following conditions:
a. Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) 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
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"nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
that could reasonably be expected to result in a 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 (exclusive of any amendments or supplements thereto effected
subsequent to the execution and delivery of the Underwriting Agreement), that,
in the judgment of the Manager, is material and adverse and that makes it, in
the judgment of the Manager, impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
b. The Manager shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the Company, to the
effect set forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing 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 the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
c. The Manager shall have received on the Closing Date an opinion of
Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin, A Professional Corporation,
counsel for the Company, dated the Closing Date, to the effect that:
(i) Xxxxxxx Xxxxxx is a duly incorporated, validly existing
corporation in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own its property and
conduct its business as described in the Prospectus;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) each of the Senior Debt Indenture and the Senior
Subordinated Debt Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as enforcement thereof (a) may be limited by bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium and
other similar laws or court decisions affecting creditors' rights generally, (b)
is subject to
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general principles of equity, regardless of whether codified by statute and
regardless of whether enforcement is considered in a proceeding in equity or at
law and (c) is subject to certain additional customary exceptions;
(iv) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company;
(v) the Offered Securities have been duly authorized and
established in conformity with the provisions of the relevant Indenture and if
the Offered Securities are duly executed by the Company and completed and
authenticated by the Trustee in accordance with the terms of the relevant
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement, in the case of Underwriters'
Securities, or by institutional investors in accordance with the terms of the
Delayed Delivery Contracts, in the case of the Contract Securities, the Offered
Securities will be entitled to the benefits of the relevant Indenture and will
be, valid and binding obligations of the Company, in each case enforceable in
accordance with their respective terms except as enforcement thereof (a) may be
limited by bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, moratorium and other similar laws or court decisions affecting
creditors' rights generally, (b) is subject to general principles of equity,
regardless of whether codified by statute and regardless of whether enforcement
is considered in a proceeding in equity or at law and (c) is subject to certain
additional customary exceptions;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the Senior
Debt Indenture, the Senior Subordinated Debt Indenture, the Offered Securities
and the Delayed Delivery Contracts, at the time the Offered Securities were
issued, did not (a) contravene (1) any provision of applicable law (other than
the securities or Blue Sky laws of the various states as to which such counsel
need express no opinion) or (2) the certificate or articles of incorporation or
by-laws of the Company or Xxxxxxx Xxxxxx, or (b) constitute a default under the
Revolving Credit Facility, consisting of (i) a Credit Agreement (364-Day
Commitment) , between the Company, Bank of America National Trust and Savings
Association, as Administrative Agent, and the banks listed therein, as lenders,
dated as of June 25, 1999, and the Promissory Notes issued pursuant thereto, and
(ii) nine separate but substantially identical Credit Agreements (3-Year
Commitment), between the Company and each of the banks listed in those Credit
Agreements, each dated as of June 26, 1998, as amended, and the Promissory Notes
issued pursuant thereto as amended, and the Revolving Promissory Notes issued
pursuant thereto, or to the best knowledge of such counsel, after reasonable
investigation,
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any other instrument or agreement binding upon the Company or any subsidiary and
evidencing or related to indebtedness for borrowed money, except such
instruments and other agreements relating to capitalized lease obligations and
installment purchase agreements for the acquisition of fixed assets, for which
indebtedness does not in the aggregate exceed $15 million; 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 Senior Debt Indenture, the Senior Subordinated Debt
Indenture, the Offered Securities or the Delayed Delivery Contracts, or for the
performance by Xxxxxxx Xxxxxx of its obligations under this Agreement, except
such as are specified and have been obtained or may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities; provided, however, that such counsel need
not express an opinion as to whether the purchase of the Offered 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;
(vii) the statements (1) in the Prospectus under the captions
"Description of Debt Securities," "Plan of Distribution," "Description of
Notes," "Underwriting" and similar captions and (2) in the Registration
Statement under Item 15, 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;
and
(viii) such counsel is of the opinion that the statements in the
Prospectus under the caption "Certain United States Federal Income Tax
Consequences" are accurate in all material respects.
The letter containing such opinion shall also contain a statement that
although such counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and such counsel makes no
representation that it has independently verified the accuracy, completeness or
fairness of such statements (except as to those matters stated in subparagraphs
(F) and (G) above), such counsel has no reason to believe (1) that any
document, if any, filed by the Company pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial statements and
schedules and other financial and statistical data included therein, and except
for any proxy statement of the Company, as to which such counsel need not
express any opinion), did not comply when so filed as to form in all material
respects with the
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Exchange Act and the applicable rules and regulations of the Commission
thereunder, (2) that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not express any
belief and except for the part of the Registration Statement that constitutes
the Form T-l heretofore referred to and except for any proxy statement of the
Company) any part of the Registration Statement, when such part became
effective, and, as of the date such opinion is delivered, contains any 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, (3)
that the Registration Statement and Prospectus (except for financial statements
and schedules and other financial and statistical data included therein, and
except for any proxy statement of the Company, as to which such counsel need not
express any opinion), do not comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (4) that (except for financial statements and schedules and other
financial and statistical data, as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is delivered contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
d. The Manager shall have received on the Closing Date an opinion of
the Office of General Counsel of the Company, dated the Closing Date, to the
effect that:
(i) the Company is a duly incorporated, validly existing
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each of the Company's Significant Subsidiaries is a duly
incorporated, validly existing corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and authority to
own its property and 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;
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(iii) each of the Company and its Significant 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
subsidiaries, taken as a whole;
(iv) the statements (1) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated by reference in
the Prospectus and (2) 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
and (3) under the caption "Employment Agreement and Name Assignment" in the
Company's Proxy Statement for its Annual Meeting of Stockholders immediately
succeeding the filing of the Company's most recent annual report on Form 10-K
incorporated by reference in the Prospectus, 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;
(v) after due inquiry, such counsel does not know of any
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;
(vi) each of the Company and its Significant Subsidiaries is duly
registered as a broker-dealer, municipal securities broker or dealer, investment
adviser or transfer agent, as the case may be, in each jurisdiction wherein the
conduct of its business requires such registration, and each of the Company and
its Significant Subsidiaries is in compliance in all material respects with all
applicable laws, rules, regulations, orders, by-laws and similar requirements in
connection with such registrations, except to the extent that the failure to be
so registered or be in compliance would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(vii) Xxxxxxx Xxxxxx is a member in good standing of the
associations and exchanges indicated in the Prospectus and is registered as a
broker-dealer with the Commission and in all 50 states, the District of
Columbia
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and Puerto Rico, except to the extent that the failure to be so registered or be
in compliance would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(viii) the execution and delivery by the Company of this
Agreement, the Offered Securities and the relevant Indenture and the performance
by the Company of its obligations under this Agreement, the Offered Securities
and the relevant Indenture at the time the Offered Securities were issued did
not violate, to such counsel's best knowledge, after reasonable investigation,
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary (except for such contravention
that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole);
(ix) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus, as then amended or supplemented, and
are not so described or of any statutes or regulations that are required to be
described in the Registration Statement or the Prospectus, as then amended or
supplemented, that are not described as required; and
(x) such counsel is of the opinion that the proxy statement
most recently filed by the Company pursuant to the Exchange Act and incorporated
by reference in the Prospectus, as then amended or supplemented (except for
financial statements and schedules and other financial and statistical data
included therein, as to which such counsel need not express an 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, and no
facts have come to the attention of such counsel to lead them to believe that
(except for financial statements and schedules and other financial and
statistical data, as to which such counsel need not express any belief) the
proxy statement most recently filed pursuant to the Exchange Act by the Company
and incorporated by reference in the Prospectus, when such part of Registration
Statement became effective, and as of the date such opinion is delivered,
contained any 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.
e. The Manager shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (ii), (iii), (iv), (v)
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and (vii) (but only as to the statements in the Prospectus under "Description of
Debt Securities," "Plan of Distribution," "Underwriting" and similar captions)
and clauses (2), (3) and (4) of the last subparagraph of paragraph c above.
In giving the opinions referred to in paragraph (c) hereof, Howard,
Rice, Nemerovski, Canady, Xxxx & Rabkin, A Professional Corporation, may rely on
the opinion of Xxxxx Xxxx & Xxxxxxxx as to any matters governed by the laws of
New York, and in giving the opinion referred to in paragraph (e) hereof, Xxxxx
Xxxx & Xxxxxxxx may rely on the opinion of Howard, Rice, Nemerovski, Canady,
Xxxx & Rabkin, A Professional Corporation, as to any matters governed by laws of
California. With respect to the last subparagraph of paragraph (c) above,
Howard, Rice, Nemerovski, Canady, Xxxx & Xxxxxx, A Professional Corporation, 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. With respect to clauses (2), (3) and (4)
of the last subparagraph of paragraph (c) 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.
The opinion of Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin, A
Professional Corporation, described in paragraph (c) above shall be rendered to
you at the request of the Company and shall so state therein.
The opinion of the Office of General Counsel of the Company, described
in paragraph (d) above shall be rendered to you at the request of the Company
and shall so state therein.
f. The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Manager, from
the Company's independent auditors, 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.
-13-
6. Covenants of the Company. In further consideration of the agreements of
------------------------
the Underwriters herein contained, the Company covenants as follows:
a. To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
b. Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Manager a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably objects;
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), 14 or 15(d) of the Exchange Act, copies of which filings
the Company will cause to be delivered to each Underwriter promptly after being
transmitted for filing with the Commission.
c. If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters, and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
d. To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
-14-
shall reasonably request and to maintain such qualification for as long as the
Manager shall reasonably request.
e. To make generally available to its security holders and to the
Manager as soon as practicable an earning statement covering a twelve month
period beginning on the first day of the first full fiscal quarter after the
date of this Agreement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder. If such fiscal quarter is the first 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.
f. During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company or
warrants to purchase debt securities of the Company substantially similar to the
Offered Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the prior written
consent of the Manager.
g. Whether or not any sale of Offered Securities is consummated, to
pay all expenses incident to the performance of its obligations under this
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 Offered Securities, (iii) the fees
and disbursements of the Company's counsel and accountants and of the Trustee
and its counsel, (iv) the qualification of the Offered Securities under
securities or Blue Sky laws in accordance with the provisions of Section 6(d),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to the
Underwriters 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) any fees charged by rating agencies for the rating of
the Offered Securities, (vii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.
and (viii) all reasonable document production charges and reasonable expenses of
counsel to the Underwriters (but not including their fees for professional
services) in connection with the preparation of this Agreement.
-15-
7. Indemnification and Contribution.
--------------------------------
a. The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by any
Underwriter or any such controlling person in connection with investigating or
defending any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any amendment thereof, any preliminary prospectus 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 any
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein, provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished to such Underwriter
any such amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Offered
Securities to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
b. Each Underwriter agrees, severally and not jointly, 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
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, 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
-16-
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 indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in 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 the Manager, 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 indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
-17-
d. To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
e. The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in 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 the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of
-18-
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 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 7 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.
8. Termination. This Agreement shall be subject to termination, by notice
-----------
given by the Manager to the Company, if (a) after the execution and delivery of
the Underwriting Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any one or more of
-----------------------
the Underwriters shall fail or refuse to purchase Underwriters' Securities that
it has or they have agreed to purchase on such date, and the aggregate amount of
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Underwriters' Securities to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
amount of Underwriters' Securities set forth opposite their respective names in
the Underwriting Agreement bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the amount of Underwriters' Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such amount of Underwriters' Securities
without the written consent of such Underwriter. If, on the Closing Date, any
Underwriter
-19-
or Underwriters shall fail or refuse to purchase Underwriters' Securities and
the aggregate amount of Underwriters' Securities with respect to which such
default occurs is more than one-tenth of the aggregate amount of Underwriters'
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Underwriters' Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any nondefaulting Underwriter or the Company.
In any such case either the Manager or the Company shall have the right to
postpone the Closing Date but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
10. Representations and Indemnities to Survive. The respective indemnity
------------------------------------------
and contribution agreements and the representations, warranties and other
statements of the Company, its officers and the Underwriters set forth in this
Agreement will remain in full force and effect, regardless of any termination of
this Agreement, any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 7 and delivery of and payment for the Offered Securities.
11. Successors. This 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 7, and no
other person will have any right or obligation hereunder.
12. Counterparts. The Underwriting Agreement may be signed in any number
------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the internal laws of the State of New York.
-20-
14. 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.
-21-
UNDERWRITING AGREEMENT
_____________, 2000
THE XXXXXXX XXXXXX CORPORATION
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that The Xxxxxxx
Xxxxxx Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell [Currency and Principal Amount] aggregate initial offering price of
[Full title of Debt Securities] (the "Debt Securities") (The Debt Securities are
also referred to herein as the "Offered Securities"). The Debt Securities will
be issued pursuant to the provisions of a [Senior/Subordinated] Indenture dated
as of July 15, 1993, as amended, (the "[Senior/Subordinated] Debt Indenture")
between the Company and The Chase Manhattan Bank (formerly Chemical Bank), as
Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of Debt
Securities set forth below opposite their names at a purchase price of _____% of
the principal amount of Debt Securities[, plus accrued interest, if any, from
[Date of Offered Securities] to the date of payment and delivery]/1/.
Principal Amount of
Name Debt Securities
---- -------------------
[Insert syndicate list]
Total: ___________________
--------------
/1/ To be added only if the transaction does not close flat.
-1-
[The principal amount of Debt Securities to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.]/2/
The Underwriters will pay for the Offered Securities [(less any Offered
Securities sold pursuant to delayed delivery contracts)]/3/ upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 200_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 200_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated ___________, 200_, and the Prospectus Supplement dated ____________ 200_,
including the following:
Terms of Debt Securities:
Maturity Date: __________, ____
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ and
____________________ commencing
____________ __, ________)]
[(Interest accrues from
__________ --, ___)]
Form and Denomination:
Ranking: The Debt Securities will be [Senior/ Subordinated] indebtedness of the
Company issued under the [Senior/ Subordinated] Indenture dated as of
July 15, 1993, as amended, between the Company and The Chase Manhattan
Bank (formerly Chemical Bank), as trustee.
------------------
/2/ To be added only if delayed delivery contracts are contemplated.
/3/ To be added only if the transaction does not close flat.
-2-
[Other Terms:]
[The commission to be paid to the Underwriters in respect of the Offered
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be __% of the principal amount of the Debt Securities so
purchased.]/4/
All provisions contained in the document entitled The Xxxxxxx Xxxxxx
Corporation Underwriting Agreement Standard Provisions (Debt Securities), dated
___________, 2000, a copy of which is attached, hereto, are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
----------
/4/ To be added only if delayed delivery contracts are contemplated.
-3-
[SIGNATURE PAGE WHERE XXXXXX XXXXXXX & CO.
INCORPORATED OR XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED IS A CO-LEAD MANAGER]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[XXXXXX XXXXXXX & CO. INCORPORATED]
[XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED]
[XXXXXXX XXXXXX & CO., INC.]
[Name of Other Lead Managers]
On behalf of themselves and the other Underwriters
named herein
By: [XXXXXX XXXXXXX & CO.
INCORPORATED]
[XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED]
By:
-----------------------------------------------
Name:
Title:
Accepted:
THE XXXXXXX XXXXXX CORPORATION
By:
---------------------------------
Name:
Title:
-4-
[SIGNATURE PAGE WHERE XXXXXX XXXXXXX & CO.
INCORPORATED OR XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED IS SOLE MANAGER]
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[XXXXXX XXXXXXX & CO. INCORPORATED]
[XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED]
acting severally on behalf of itself and the several
Underwriters named herein
By:
------------------------------------------
Name:
Title:
Accepted:
THE XXXXXXX XXXXXX CORPORATION
By:
-------------------------------
Name:
Title:
-5-
Schedule I
DELAYED DELIVERY CONTRACT
_________, 200_
Dear Sirs:
The undersigned hereby agrees to purchase from The Xxxxxxx Xxxxxx
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A annexed
hereto (the "Securities"), offered by the Company's Prospectus dated ______ ,
200_, and Prospectus Supplement dated ________, 200_, receipt of copies of which
is hereby acknowledged, at a purchase price stated in Schedule A and on the
further terms and conditions set forth in this Agreement. The undersigned does
not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company in Federal or other funds
immediately available in New York City on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above, such part of the Securities as is to be
sold to them. Promptly after completion of sale and delivery to the
underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such
-1-
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Yours very truly,
---------------------------------
(Purchaser)
By
-------------------------------
---------------------------------
(Title)
---------------------------------
---------------------------------
(Address)
Accepted:
The Xxxxxxx Xxxxxx Corporation
By:
----------------------------
-2-
PURCHASER-- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name Including Area Code Department
---- ------------------- ----------
------------------------ --------------------------- ---------------------------
-3-
SCHEDULE A
Securities:
----------
Principal Amounts or Numbers to be Purchased:
--------------------------------------------
Purchase Price:
--------------
Delivery Dates:
--------------
-4-
