1
Exhibit 1.01
[Form of Purchase Agreement]
XXXXXXXXX INTERNATIONAL PUBLISHING INC.
(a Delaware corporation)
XXXXXXXXX INTERNATIONAL INC.
(a Delaware corporation)
$___________
__% Senior Notes due 2005
PURCHASE AGREEMENT
__________, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
CIBC WOOD GUNDY SECURITIES CORP.
SCOTIA CAPITAL MARKETS (USA) INC.
TORONTO DOMINION SECURITIES (USA) INC.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxxxx International Publishing Inc., a Delaware corporation
("Publishing"), and Xxxxxxxxx International Inc., a Delaware corporation (the
"Guarantor"), confirm their agreement with Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx"), CIBC Wood Gundy Securities Corp.
("CIBC"), Scotia Capital Markets (USA) Inc. ("Scotia"), and Toronto Dominion
Securities (USA) Inc. ("TD") (collectively, the "Underwriters", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10), with respect to the sale by Publishing and the purchase by the
Underwriters, acting severally and not jointly, of $___________ (all dollar
references herein are in U.S. dollars unless otherwise specifically indicated)
aggregate principal amount
2
of Publishing's __% Senior Notes due 2005 (the "Securities"). The Securities
will be guaranteed by the Guarantor on a senior subordinated basis.
The aforesaid $___________ aggregate principal amount of Securities are to
be issued pursuant to an Indenture to be dated as of _____, 1997, as amended,
(the "Senior Indenture"), among Publishing, the Guarantor and Fleet National
Bank of Connecticut, as trustee (the "Trustee").
The interest rate and certain other terms of the Securities and the purchase
price of the Securities to be paid by the Underwriters shall be agreed upon by
Publishing, the Guarantor and the Underwriters and such agreement shall be set
forth in a separate written instrument substantially in the form of Exhibit I
hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among Publishing, the Guarantor and the Underwriters and
shall specify such applicable information as is indicated in Exhibit A hereto.
The offering of the Securities will be governed by this Agreement, as
supplemented by the Price Determination Agreement. From and after the date of
the execution and delivery of the Price Determination Agreement, this Agreement
shall be deemed to incorporate, and all references herein to "this Agreement"
or "herein" shall be deemed to include, the Price Determination Agreement.
Concurrently with the execution of this Agreement, Publishing, the Guarantor
and Xxxxxxx Lynch, Donaldson, Lufkin & Xxxxxxxx Securities Corporation ("DLJ"),
TD, Bear Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") and CIBC are entering into a
senior subordinated note purchase agreement (the "Senior Subordinated Note
Purchase Agreement") pursuant to which Publishing will issue and sell to
Xxxxxxx Xxxxx, DLJ, TD, Bear Xxxxxxx and CIBC $_________ aggregate principal
amount of Publishing's __% Senior Subordinated Notes due 2007 (the "Senior
Subordinated Notes"). The pricing terms for the Senior Subordinated Notes to
be sold pursuant to the Senior Subordinated Notes Purchase Agreement shall be
set forth in a separate agreement (the "Senior Subordinated Notes Price
Determination Agreement"), the form of which will be attached to the Senior
Subordinated Notes Purchase Agreement.
3
3
Publishing and the Guarantor have prepared and filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. ________) and a related preliminary prospectus for
the registration of the Securities under the Securities Act of 1933 (the "1933
Act"), have filed such amendments thereto, if any, and such amended preliminary
prospectuses as may have been required to the date hereof, and will file such
additional amendments thereto and such amended prospectuses as may hereafter be
required. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it becomes effective, and as thereafter amended by
post-effective amendment, and any registration statement and any amendments
thereto filed pursuant to Rule 462(b) of the 1933 Act relating to the offering
covered by the initial registration statement (the "Rule 462(b) Registration
Statement"). The term "Prospectuses" as used in this Agreement means the
prospectuses in the forms included in the Registration Statement, or, if the
prospectuses included in the Registration Statement omit information in reliance
on Rule 430A under the 1933 Act and such information is included in prospectuses
filed with the Commission pursuant to Rule 424(b) under the 1933 Act, the term
"Prospectuses" as used in this Agreement means the prospectuses in the forms
included in the Registration Statement as supplemented by the addition of the
Rule 430A information contained in the prospectuses filed with the Commission
pursuant to Rule 424(b).
Publishing and the Guarantor understand that the Underwriters propose to
make a public offering of the Securities as soon as the Underwriters deem
advisable after the Registration Statement becomes effective and the Price
Determination Agreement has been executed and delivered.
SECTION 1. Representations and Warranties. (a) Publishing and the
Guarantor jointly and severally represent and warrant to the Underwriters as of
the date hereof and as of the date of the Price Determination Agreement (such
latter date being hereinafter referred to as the "Representation Date") as
follows:
(i) The Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective
amendment thereto or any Rule 462(b) Registration Statement or
4
4
amendment thereto shall become effective and the Prospectus and any
supplement or amendment thereto when filed with the Commission under Rule
424(b) under the 1933 Act, complied or will comply in all material respects
with the provisions of the 1933 Act and did not or will not at any such times
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information relating
to the Underwriters furnished to Publishing and the Guarantor in writing by
or on behalf of the Underwriters through you expressly for use therein.
(ii) All the outstanding shares of common stock of Publishing and the
Guarantor have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; and the
authorized capital stock of Publishing and the Guarantor conforms to the
description thereof in the Registration Statement and the Prospectus. Except
as described in the Prospectus, there are no outstanding options, warrants or
other rights issued by Publishing or the Guarantor calling for the issuance
of, nor any written agreement entered into by Publishing or the Guarantor or
oral commitments of Publishing or the Guarantor to issue, any shares of
capital stock or any other security of Publishing or the Guarantor or any
security convertible into or exchangeable or exercisable for capital stock or
any other security of Publishing or the Guarantor.
(iii) Publishing and the Guarantor are corporations duly incorporated and
validly existing in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate their properties
and to conduct their business as described in the Registration Statement and
the Prospectus.
(iv) The only significant subsidiaries (as defined in the 0000 Xxx) of
Publishing and the Guarantor are the subsidiaries listed in Schedule II
hereto (each a "Subsidiary" and collectively the "Subsidiaries"). Each
Subsidiary is a corporation duly incorporated, validly existing and in good
standing in the
5
5
jurisdiction of its incorporation, with corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus, and is duly qualified as a
foreign corporation for the transaction of business in and is in good
standing under the laws of each other jurisdiction where the nature of its
properties or the conduct of its business requires such qualification, except
where the failure so to qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of such Subsidiary; all the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable, and all shares of the
capital stock of the Subsidiaries that are owned directly or indirectly by
Publishing or the Guarantor are owned free and clear of any lien, adverse
claim, security interest, equity, or other encumbrance, except, to the extent
set forth or described in the Registration Statement and the Prospectus,
currently existing liens, claims and security interests of creditors and
liens, claims and security interests pursuant to the terms of the [New Bank
Credit Facility] (as defined).
(v) There are no legal or governmental proceedings pending or, to the
knowledge of Publishing or the Guarantor, threatened, against Publishing or
the Guarantor or any of the Subsidiaries, or to which Publishing or the
Guarantor or any of the Subsidiaries, or to which any of their respective
properties is subject, that are required to be described in the Registration
Statement or the Prospectus but are not described as required, or which might
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operation of Publishing, the
Guarantor and their subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or which
might materially and adversely affect the consummation of this Agreement; all
pending legal or governmental proceedings to which Publishing or the
Guarantor or any of the Subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, are, considered in the
6
6
aggregate, not material; and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that are not described or filed as required by the
1933 Act.
(vi) Except as set forth in the Prospectus, neither Publishing, the
Guarantor nor any of the Subsidiaries (A) is in violation of its certificate
or articles of incorporation or by-laws, or other organizational documents,
(B) is in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to Publishing or the Guarantor or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over Publishing or the Guarantor or any of the
Subsidiaries, or (C) is in default in any material respect in the performance
of any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any material agreement,
indenture, lease or other instrument to which Publishing or the Guarantor or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, except, in the case of clause (B) with
respect to the Subsidiaries, where such violation does not have a material
effect on the condition (financial or other), business, properties, net worth
or results of operations of Publishing, the Guarantor and their subsidiaries
considered as one enterprise.
(vii) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement and the Price Determination
Agreement by Publishing or the Guarantor, nor the consummation by Publishing
or the Guarantor of the transactions contemplated hereby (A) requires any
consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration
of the Securities under the 1933 Act and the Securities Exchange Act of 1934
(the "Exchange Act") and compliance with the securities or Blue Sky laws of
various jurisdictions, both of which have been or will be effected in
accordance with this Agreement) or violates or will violate the certificate
or articles of
7
7
incorporation or by-laws, or other organizational documents, of Publishing or
the Guarantor or any of the Subsidiaries or (B) constitutes or will
constitute a breach of, or a default under, any material agreement,
indenture, lease or other instrument to which Publishing or the Guarantor or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound (except where consents or waivers as to
such default have been obtained prior to the time of the execution of the
Price Determination Agreement (the "Pricing Time")), or violates or will
violate any statute, law, regulation or judgment, injunction, order or decree
applicable to Publishing or the Guarantor or any of the Subsidiaries or any
of their respective properties, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of Publishing
or the Guarantor or any of the Subsidiaries pursuant to the terms of any
agreement or instrument to which any of them is a party or by which any of
them may be bound or to which any of the property or assets of any of them is
subject.
(viii) KPMG Peat Marwick LLP, who have certified or shall certify certain
of the financial statements included in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), are independent public
accountants as required by the Act.
(ix) The supplemental consolidated financial statements of the Guarantor
and its subsidiaries and Publishing (including the financial statements of
the Restricted Group as defined in the Registration Statement), together with
related notes, included in the Registration Statement and the Prospectus (and
any amendment or supplement thereto), (A) in the case of the historical
financial statements present fairly the supplemental consolidated financial
position and results of operations of the Guarantor and its subsidiaries and
of the Restricted Group, and (B) in the case of the pro forma financial
statements present fairly, on a pro forma basis, the pro forma supplemental
consolidated financial position and results of operations of the Guarantor
and its subsidiaries, including Telegraph Group Limited ("Telegraph") and its
indirect equity investments in Southam Inc. ("Southam"), in each case on the
basis
8
8
stated in the Registration Statement at the respective dates or for the
respective periods to which they apply. Such financial statements, pro forma
financial statements and related notes have been prepared in accordance with
U.S. generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other financial
and statistical information and data included in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) are accurately
presented in all material respects and prepared on a basis consistent with
such financial statements and the books and records of the Guarantor,
Publishing and their subsidiaries.
(x) The execution and delivery of, and the performance by Publishing and
the Guarantor of their obligations under, this Agreement and the Price
Determination Agreement have been duly and validly authorized by Publishing
and the Guarantor, and this Agreement and the Price Determination Agreement
have been duly executed and delivered by Publishing and the Guarantor.
(xi) Except as disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), subsequent to the respective dates
as of which such information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), neither Publishing nor
the Guarantor nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Publishing, the
Guarantor and their subsidiaries considered as one enterprise, and there has
not been any change in the capital stock, or material increase in the
short-term debt or long-term debt, of Publishing or the Guarantor or any of
the Subsidiaries, or any material adverse change, or any development
involving, or which may reasonably be expected to involve, a prospective
material adverse change, in the condition (financial or other), business, net
worth or results of operations of Publishing, the Guarantor and their
subsidiaries considered as one enterprise.
(xii) Each of Publishing, the Guarantor and the Subsidiaries has good and
marketable title to all
9
9
property (real and personal) described in the Prospectus as being owned by
them (excluding properties owned by West Ferry Printers, Trafford Park
Printers, or Southam), free and clear of all liens, claims, security
interests or other encumbrances except to the extent set forth or described
in the Registration Statement and the Prospectus or in a document filed as an
exhibit to the Registration Statement or are not material to the business of
Publishing, the Guarantor and their subsidiaries considered as one enterprise
and all the property described in the Prospectus as being held under lease by
each of Publishing, the Guarantor and the Subsidiaries is held by it under
valid, subsisting and enforceable leases with such exceptions as are not
material to the business of Publishing, the Guarantor and their subsidiaries
considered as one enterprise and do not interfere with the use made and
proposed to be made of such properties by Publishing and the Guarantor and
their subsidiaries.
(xiii) Neither Publishing nor the Guarantor has distributed and, prior to
the later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Securities, neither will distribute any offering material
in connection with the offering and sale of the Securities other than the
Registration Statement, the Prospectus or other materials, if any, permitted
by the Act.
(xiv) Publishing, the Guarantor and each of the Subsidiaries has such
governmental authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all governmental or regulatory officials
and bodies ("permits") as are necessary to own its respective properties and
to conduct its business in the manner described in the Prospectus, with such
exceptions as are not material to the business of Publishing, the Guarantor
and the Subsidiaries considered as one enterprise and do not interfere with
the use made and proposed to be made of such properties by Publishing, the
Guarantor and the Subsidiaries or are otherwise disclosed; Publishing, the
Guarantor and each of the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of the
10
10
holder of any such permit, with such exceptions as are not material to the
business of Publishing and the Guarantor and their subsidiaries considered as
one enterprise and do not interfere with the use made and proposed to be made
of such properties by Publishing and the Guarantor and the Subsidiaries or
are otherwise disclosed; and, except as described in the Prospectus, none of
such permits contains any restriction that is materially burdensome to
Publishing and the Guarantor and their subsidiaries considered as one
enterprise.
(xv) Publishing and the Guarantor maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xvi) To Publishing's or the Guarantor's knowledge, neither Publishing nor
the Guarantor nor any of the Subsidiaries nor any employee or agent of
Publishing, the Guarantor or any Subsidiary has made any payment of funds of
Publishing, the Guarantor or any Subsidiary or received or retained any funds
in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Prospectus.
(xvii) Except as described in the Registration Statement and the
Prospectus, Publishing, the Guarantor and each of the Subsidiaries have filed
all tax returns required to be filed, which returns are complete and correct,
and neither Publishing, the Guarantor nor any Subsidiary is in default in the
payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, with such exceptions as are not material to
the financial position of Publishing, the Guarantor and their subsidiaries
considered as one enterprise.
11
11
(xviii) Publishing, the Guarantor and the Subsidiaries own, or possess
adequate rights to use, all patents, trademarks, service marks, trade names,
copyrights, licenses, and rights described in the Prospectus as being owned
by them or any of them or necessary for the conduct of their respective
businesses, and neither Publishing nor the Guarantor is aware of any claim to
the contrary or any challenge by any other person to the rights of
Publishing, the Guarantor and the Subsidiaries with respect to the foregoing.
(xix) Neither Publishing nor the Guarantor is now, and after sale of the
Securities to be sold by it hereunder and application of the net proceeds
from such sale as described in the Prospectus under the caption "Use of
Proceeds" will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xx) Publishing and the Guarantor have complied with all provisions of
Florida Statutes, Section 517.075, relating to issuers doing business with
Cuba.
(xxi) The Indenture has been duly authorized by Publishing and the
Guarantor, will be substantially in the form heretofore delivered to the
Underwriters and, when duly executed and delivered by Publishing, the
Guarantor and the Trustee, will have been duly qualified under the 1939 Act
and will constitute a valid and binding obligation of Publishing and the
Guarantor, enforceable against Publishing and the Guarantor in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law);
the Indenture conforms to the description thereof contained in the
Prospectus; the Indenture and the form and issuance of the Securities
thereunder comply with the provisions of the 0000 Xxx.
(xxii) The Securities have been duly authorized by Publishing and the
Guarantor and, when executed, authenticated, issued and delivered in the
manner
12
12
provided for in the Indenture and sold and paid for as provided in this
Agreement, the Securities will constitute valid and binding obligations of
the Publishing and the Guarantor enforceable against Publishing and the
Guarantor in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization or other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); the holders thereof will be entitled to the
benefits of the Indenture; and the Indenture and the Securities conform to
the descriptions thereof contained in the Prospectus.
(xxiii) No holder of any security of Publishing or the Guarantor nor any
other person has any right, contractual or otherwise, to have any securities
included in the Registration Statement or the right, because of the filing of
the Registration Statement or consummation of the transactions contemplated
by this Agreement, to require registration of any security of Publishing or
the Guarantor under the Act.
(xxiv) Except as set forth in the Prospectus, no labor dispute with the
employees of Publishing or the Guarantor or any of the Subsidiaries exists
or, to the knowledge of Publishing or the Guarantor, is imminent, which might
be expected to result in a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of Publishing, the Guarantor and their subsidiaries considered as
one enterprise.
(xxv) Except as set forth in the Registration Statement and except as would
not result in a material effect on the condition (financial or other),
business, properties, net worth or results of operations of Publishing, the
Guarantor and their subsidiaries considered as one enterprise and which would
not materially and adversely affect the consummation of this Agreement, (i)
to the knowledge of Publishing and the Guarantor after reasonable inquiry,
neither Publishing nor the Guarantor is in violation of any applicable
Federal, foreign, state or local environmental law or any applicable order of
any
13
13
governmental authority with respect thereto; (ii) neither Publishing nor the
Guarantor is in violation of or subject to any existing, or pending or, to
Publishing's and the Guarantor's knowledge, threatened action, suit,
investigation, inquiry or proceeding by any governmental authority nor is
Publishing or the Guarantor subject to any environmental claim by any
citizens' group or to remedial obligations under any applicable Federal,
foreign, state or local environmental law; (iii) Publishing, the Guarantor
and the subsidiaries are in compliance with all permits or similar
authorizations, if any, required to be obtained or filed in connection with
their operations including, without limitation, emissions, discharges,
treatment, storage, disposal or release of a Hazardous Material into the
environment except where any noncompliance could not reasonably be expected
to have a material adverse effect on the operations of Publishing, the
Guarantor and the Subsidiaries; and (iv) to the knowledge of Publishing and
the Guarantor after reasonable inquiry, no Hazardous Materials have been
disposed of or released by Publishing or the Guarantor or the Subsidiaries
at, under or on any property currently or formerly owned or operated by
Publishing, the Guarantor or the Subsidiaries, except in accordance with
applicable environmental laws. The term "Hazardous Material" means any oil
(including petroleum products, crude oil and any fraction thereof), chemical,
contaminant, pollutant, solid or hazardous waste or material, or Hazardous
Substance (as defined in Section 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act and regulations thereunder), that is
regulated as toxic or hazardous to human health or the environment under any
Federal, foreign, state or local environmental law.
(xxvi) Publishing and the Guarantor and each other person or entity that,
together with Publishing and the Guarantor, is treated as a single employer
under Section 414 of the Internal Revenue Code of 1986, as amended (the
"Code") (each such person or entity being an "ERISA Affiliate"), complies in
all material respects with the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and the Code with respect to each pension plan
(as defined in Section 3(2) of ERISA) maintained by Publishing, the Guarantor
or such ERISA Affiliate, and none of
14
14
Publishing, the Guarantor or any of its ERISA Affiliates has incurred any
material liability to any pension plan or to the Pension Benefit Guaranty
Corporation that has not been fully paid as of the date hereof except as
disclosed in the Registration Statement or Prospectus (or any amendment or
supplement thereto).
(b) Any certificate signed by an officer of Publishing or the Guarantor and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by Publishing and the Guarantor to the
Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) On the basis
of the representations and warranties herein contained, and subject to the
terms and conditions herein set forth, Publishing agrees to sell to the
Underwriters, and the Underwriters agree to purchase from Publishing, at the
purchase price set forth in the Price Determination Agreement, the Securities.
(b) If Publishing has elected not to rely upon Rule 430A under the 1933 Act
Regulations, the initial public offering price and the purchase price to be
paid by the Underwriters shall be agreed upon and set forth in the Price
Determination Agreement, dated the date hereof, and an amendment to the
Registration Statement containing such information will be filed with the
Commission, before the Registration Statement becomes effective.
(c) If Publishing has elected to rely upon Rule 430A under the 1933 Act
Regulations, the initial public offering price and the purchase price to be
paid by the Underwriters shall be agreed upon and set forth in the Price
Determination Agreement. In the event that the Price Determination Agreement
has not been executed by the close of business on the fourth business day
following the date on which the Registration Statement becomes effective, this
Agreement shall terminate forthwith, without liability of any party to any
other party except that Sections 6, 7 and 8 shall remain in effect.
(d) Publishing will deliver the Securities to the Underwriters, at the
offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or
at such other place as shall be agreed upon by Publishing, the Xxxxxxxxx
00
00
and the Underwriters, against payment of the gross purchase price by wire
transfer to Publishing in U.S. dollars, in funds immediately available to
Publishing, at 10:00 a.m. either (i) on the third business day following the
date upon which the Publishing and the Guarantor shall have fulfilled all
requirements which under the 1933 Act must be fulfilled to qualify the
Securities for distribution and the Registration Statement shall have become
effective or (ii) if Publishing has elected to rely upon Rule 430A under the
1933 Act Regulations, on the third business day after execution of the Price
Determination Agreement, or at such other time not later than ten full business
days thereafter as the Underwriters and Publishing determine (such time being
herein referred to as the "Closing Date"). The Securities so to be delivered
will be in definitive, fully registered form in such denominations ($1,000
principal amount or an integral multiple thereof) and registered in such names
as the Underwriters shall request in writing at least two full business days
prior to the Closing Date, and will be made available for checking and
packaging at the office of the Trustee, not later than 10:00 a.m. on the
business day prior to the Closing Date. Concurrently with the payment by the
Underwriters of the gross purchase price for the Securities in the manner
described in this Section 2(d), Publishing will pay to the Underwriters by
certified or official bank check or checks in U.S. dollars, in funds available
the next succeeding business day drawn to the order of Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, North Tower, World Financial Center, New York, New
York 10281-1305, for the account of the Underwriters, an amount equal to the
underwriting commission applicable to the Securities as described in the Price
Determination Agreement.
SECTION 3. Covenants of Publishing and the Guarantor. Publishing and the
Guarantor, jointly and severally, covenant with the Underwriters as follows:
(a) Publishing will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of the Registration Statement and
any amendment thereto (including any posteffective amendment), (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the
16
16
initiation of any proceedings for that purpose. Publishing will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Publishing will furnish to the Underwriters, without charge, five true
and correct copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the Registration Statement, and of any Rule 462(b) Registration
Statement and any amendment thereto, and will also furnish to you, without
charge, such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto, but without exhibits, and of
any Rule 462(b) Registration Statement and any amendment thereto, as you may
reasonably request.
(c) Publishing will not (i) file any amendment to the Registration
Statement, any Rule 462(b) Registration Statement or amendment thereto, or make
any amendment or supplement to the Prospectuses of which you shall not
previously have been advised or to which you shall reasonably object in writing
after being so advised or (ii) so long as, in the written opinion of counsel
for the Underwriters (a copy of which shall be delivered to Publishing), a
Prospectus is required to be delivered in connection with sales by any
Underwriters or dealer, file any information, documents or reports pursuant to
the Exchange Act, without delivering a copy of such information, documents or
reports to you prior to such filing.
(d) Publishing will furnish to the Underwriters, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act
or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies
of the Prospectus (as amended or supplemented) as the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act or the respective applicable rules and regulations of the Commission
thereunder.
(e) If any event shall occur as a result of which it is necessary, in the
opinion of counsel for the Underwriters, to amend or supplement the Prospectus
in order to make the Prospectus not misleading, in the light of the
circumstances existing at the time it is delivered to a purchaser, Publishing
will forthwith amend or supplement the
17
17
Prospectus (in form and substance satisfactory to counsel for the Underwriters
so that, as so amended or supplemented, the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading), and
Publishing will furnish to the Underwriters a reasonable number of copies of
such amendment or supplement.
(f) Publishing will endeavor, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriters may designate; provided, however, that Publishing shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. In each jurisdiction in which the Securities have been so
qualified Publishing will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(g) Publishing will make generally available to its security holders as
soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning
not later than the first day of Publishing's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(h) Publishing will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under "Use of
Proceeds".
(i) If, at the time that the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then immediately following the execution of the Price
Determination Agreement, Publishing will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule 424(b) of
the 1933 Act Regulations, copies of an amended Prospectus, or, if required by
such Rule 430A, a post-effective amendment of the Registration Statement
(including an amended Prospectus), containing all information so omitted.
18
18
(j) Except as provided in this Agreement, Publishing will not directly or
indirectly, offer, sell, grant any option to purchase or otherwise dispose of,
any debt security of Publishing which is publicly offered or sold pursuant to
Rule 144A of the 1933 Act Regulations for a period of 180 days after the date
of the Prospectus, without the prior written consent of Xxxxxxx Xxxxx.
(k) For a period of three years after the Closing Date the Guarantor will
furnish to the Underwriters copies of all reports and communications delivered
to the Guarantor's stockholders or to holders of the Securities as a class and
will also furnish copies of all reports (excluding exhibits) filed with the
Commission on Form 8-K, 10-Q and 10-K, and all other reports and information
furnished to its stockholders generally, at the time such reports are furnished
to stockholders generally. For such period of time, the Guarantor will file
with the Commission such documents required to be filed with the Commission
pursuant to Sections 13(a) and 15(d) of the 1934 Act, whether or not the
Guarantor or Publishing has a class of securities registered under the 1934
Act.
(l) The Company will use reasonable efforts to effect the listing of the
Securities on the New York Stock Exchange on the date of the Price
Determination Agreement.
SECTION 4. Payment of Expenses. Publishing will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed, and of
each amendment thereto, (ii) the printing of this Agreement, the Price
Determination Agreement, the Indenture and any Legal Investment Survey, (iii)
the preparation, issuance and delivery of the certificates for the Securities
to the Underwriters, (iv) the fees and disbursements of Publishing's and the
Guarantor's counsel and accountants, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f),
including filing fees and the fee and the disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky
19
19
Survey, (viii) the filing fee of the National Association of Securities
Dealers, Inc., (ix) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee, in connection with the Indenture
and the Securities, and (x) any fees charged by investment-rating agencies for
the rating of the Securities.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5, Section 9(a) or Section 11, Publishing shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of Publishing and the Guarantor herein contained, to the
performance by Publishing and the Guarantor of their obligations hereunder, and
to the following further conditions:
(a) The Registration Statement shall have become effective not later than
5:30 p.m. on the date hereof, or, with the consent of the Underwriters, at a
later time and date, not later, however, than 5:30 p.m. on the first business
day following the date hereof or at such later time and date as may be approved
by the Underwriters; and at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission. If
Publishing has elected to rely upon Rule 430A of the 1933 Act Regulations, the
price of the Securities and any price-related information previously omitted
from the effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to the
Closing Date Publishing shall have provided evidence satisfactory to the
Underwriters of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the 1933 Act Regulations.
(b) At the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Prospectus, any
20
20
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of Publishing and the
Guarantor and their subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the Chairman and Chief Executive Officer of each of
Publishing and the Guarantor and of the Vice President of each of Publishing
and the Guarantor, dated as of Closing Date, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties
in Section 1(a) are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) Publishing and the
Guarantor have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the Closing Date, and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the Commission. As used in this Section 5, the term "Prospectus"
means the Prospectus in the form first used to confirm sales of Securities.
(c) You shall have received on the Closing Date an opinion of Xxxxxxxxxxx
& Xxxxxxxx LLP, counsel for Publishing and the Guarantor, dated the Closing
Date and addressed to you, to the effect that:
(i) Publishing, the Guarantor and each of the United States Subsidiaries
(the "U.S. Subsidiaries") is a corporation duly incorporated and validly
existing in good standing under the laws of the jurisdiction of its
organization, with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), and
is duly qualified as a foreign corporation for the transaction of business in
and is in good standing under the laws of each jurisdiction where the nature
of its properties or the conduct of its business requires such qualification,
except where the failure so to qualify would not have a material adverse
effect on the condition (financial or otherwise), business, properties, net
worth or results of operations of Publishing, the Guarantor and their
subsidiaries, considered as one enterprise.
21
21
(ii) All the outstanding shares of capital stock of each of the U.S.
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned of record by Publishing directly, or indirectly
through one of the other U.S. Subsidiaries, and are not subject to any
perfected security interest, or, to the best knowledge of such counsel after
reasonable inquiry, any adverse claims within the meaning of the Uniform
Commercial Code, except, to the extent set forth or described in the
Registration Statement and the Prospectus, currently existing liens, claims
and security interests of creditors and liens, claims and security interests
pursuant to the terms of the New Bank Credit Facility (as defined).
(iii) The authorized and outstanding capital stock of the Guarantor to be
in effect as of the Closing Date is as set forth under the caption
"Capitalization" in the Prospectus.
(iv) The Registration Statement and all post-effective amendments, if any,
have become effective under the 1933 Act, the Indenture has been duly
qualified under the 1939 Act and, to the best knowledge of such counsel after
reasonable inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
are pending before or contemplated by the Commission; and any required filing
of the Prospectus pursuant to Rule 424(b) has been made in accordance with
Rule 424(b).
(v) Publishing and the Guarantor have corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Securities to
the Underwriter as provided herein, and this Agreement has been duly
authorized, executed and delivered by Publishing and the Guarantor.
(vi) Neither Publishing, the Guarantor nor any of the U.S. Subsidiaries is
in violation of its certificate or articles of incorporation or its
respective by-laws or, to the best knowledge of such counsel after reasonable
inquiry, is in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note or other
evidence of indebtedness to which the Guarantor,
22
22
Publishing or any U.S. Subsidiary is a party that is included as an exhibit
to, or otherwise described or summarized in, the Registration Statement,
except as may be disclosed in the Prospectus and except for defaults under
existing indebtedness of Publishing, the Guarantor or any U.S. Subsidiary as
to which consents or waivers have been obtained prior to the Pricing Time.
(vii) Neither the offer, sale or delivery of the Securities, the execution,
delivery or performance of this Agreement or the Indenture, compliance by
Publishing or the Guarantor with the provisions of this Agreement or the
Indenture, nor consummation by Publishing or the Guarantor of the
transactions contemplated hereby violates the certificate or articles of
incorporation or by-laws, or other organizational documents, of Publishing or
the Guarantor or any of the U.S. Subsidiaries or constitutes a breach of or
default under any agreement, indenture, lease or other instrument to which
Publishing, the Guarantor or any of the U.S. Subsidiaries is a party or by
which any of them or any of their respective properties is bound (except for
defaults under existing indebtedness of Publishing, the Guarantor or any U.S.
subsidiary as to which consents or waivers have been obtained prior to the
Pricing Time) and that is an exhibit to the Registration Statement, or is
material and is known to such counsel after reasonable inquiry, or will
result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of Publishing, the Guarantor or any of the U.S.
Subsidiaries, nor will any such action violate any existing law, regulation,
ruling (assuming compliance with all applicable state securities and Blue Sky
laws), judgment, injunction, order or decree known to such counsel after
reasonable inquiry, that names Publishing, the Guarantor or any of the U.S.
Subsidiaries and is specifically directed to any of them or any of their
respective properties.
(viii) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of Publishing or the Guarantor (except as have been obtained under the
1933 Act, the Exchange Act, and the 1939 Act or such as may be required under
state
23
23
securities or Blue Sky laws governing the purchase and distribution of the
Securities) for the valid issuance and sale of the Securities by Publishing
to the Underwriters or the consummation by Publishing and the Guarantor of
the other transactions set forth in this Agreement.
(ix) The Registration Statement and the Prospectus and any supplements or
amendments thereto (except for the financial statements and the notes thereto
and the schedules and other financial and statistical data included therein,
as to which such counsel need not express any opinion) comply as to form in
all material respects with the requirements of the 1933 Act.
(x) Assuming that (A) Publishing and the Guarantor have all requisite
corporate power and authority to execute, deliver and perform its obligations
under the Securities and the Indenture, (B) the Securities have been duly
authorized, executed and delivered by Publishing and the Guarantor, (C) the
Indenture has been duly authorized, executed and delivered by Publishing and
the Guarantor and the Trustees and (D) the Securities have been duly
authenticated by one of the Trustees pursuant to the Indenture (which fact
such counsel need not determine by an inspection of the Securities), the
Securities and the Indenture each constitute valid and binding obligations of
Publishing and the Guarantor, enforceable against Publishing and the
Guarantor in accordance with their respective terms, in each case subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws affecting creditors' rights generally from
time to time in effect; and the holders of the Securities are entitled to the
benefits of the Indenture. The enforceability of the obligations of
Publishing and the Guarantor is also subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(xi) To the best knowledge of such counsel after reasonable inquiry, (A)
other than as described or contemplated in the Prospectus (or any supplement
thereto), there are no legal or governmental proceedings pending or
threatened against Publishing, the Guarantor or any of the U.S. Subsidiaries,
or to
24
24
which Publishing, the Guarantor or any of the U.S. Subsidiaries, or any of
their property, is subject, which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto), and (B) there are no material agreements, contracts, indentures,
leases or other instruments to which the Guarantor, Publishing or any U.S.
Subsidiary is a party, that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or to be
filed as an exhibit to the Registration Statement that are not described or
filed as required, as the case may be.
(xii) The statements in the Registration Statement and Prospectus, insofar
as they are descriptions or summaries of contracts, agreements or other legal
documents to which Publishing, the Guarantor or any U.S. Subsidiary is a
party, or are statements of law or legal conclusions (other than matters of
English, Canadian, Australian or Israeli law), are accurate in all material
respects and present fairly the information required to be shown.
(xiii) Except as described in the Prospectus and except for options granted
under the Company's 1994 Stock Option Plan, there are no outstanding options,
warrants or other rights issued by Publishing or the Guarantor calling for
the issuance of, and to the best knowledge of such counsel after reasonable
investigation there are no written agreements entered into by Publishing or
the Guarantor or binding oral commitments by Publishing or the Guarantor to
issue, any shares of capital stock of Publishing or the Guarantor or any
security convertible into or exchangeable or exercisable for capital stock of
Publishing or the Guarantor.
(xiv) Except as described in the Prospectus, there is no holder of any
security of Publishing or the Guarantor or, to the best knowledge of such
counsel after reasonable inquiry, any other person who has the right,
contractual or otherwise, to cause Publishing or the Guarantor to sell or
otherwise issue to them, or to permit them to underwrite the sale of, the
Securities or the right to have any securities of Publishing or the Guarantor
included in the Registration Statement or the right, as a result of the
filing of the Registration Statement, to require registration under
25
25
the 1933 Act of any securities of Publishing or the Guarantor.
(xv) At the Closing Date, Southam Inc. qualifies as a Subsidiary of
Publishing as defined in the Senior Indenture/
(xvi) Although counsel cannot opine as to factual matters, and the
character of determinations involved in the registration process in such that
counsel cannot pass upon and assume any responsibility for the accuracy or
completeness of the information contained in the Registration Statement and
the Prospectus, counsel shall advise the Underwriters that on the basis of
its review of the Registration Statement and the Prospectus and its
participation in the preparation thereof (relying as to materiality to a
large extent upon the statements of officers and other representatives of the
Company) that counsel has no reason to believe that (A) the Registration
Statement (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion), at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (B) the
Prospectus (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion) at the time the
Prospectus was issued, includes an untrue statement of a material fact or
omitted state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; also, that counsel has no reason to believe, based upon the
procedures described above, that either the Registration Statement or the
Prospectus (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion) as of the date and
time of delivery of counsel's opinion contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements
26
26
therein, in light of the circumstances in which they were made, not
misleading.
In rendering their opinion as aforesaid, counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by them,
Publishing or the Guarantor as to laws of any jurisdiction other than the
United States, the Commonwealth of Pennsylvania or the Delaware General
Corporation Law, provided that (1) each such local counsel is acceptable to the
Underwriters, (2) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the Underwriters
and is, in form and substance, satisfactory to the Underwriters and their
counsel, and (3) counsel shall state in their opinion that they believe that
they and the Underwriters are justified in relying thereon. Counsel may also
rely, to the extent they deem such reliance proper, as to matters of fact upon
certificates of officers of Publishing or the Guarantor and of government
officials. Copies of all such certificates shall be furnished to counsel to
the Underwriters on the Closing Date. Such opinion may state that it is
limited to the laws of the Commonwealth of Pennsylvania (excluding the conflict
of laws rules), the Delaware Business Corporation Law and the Federal
securities laws of the United States, and that such counsel expresses no
opinion as to any other laws (except with respect to the Indenture, as to which
such counsel will express certain opinions under New York law) and further that
such opinions are being given as if the Purchase Agreement was governed by
Pennsylvania law.
(d) You shall have received on the Closing Date an opinion of Xxxxxxxx
Chance, special English counsel for the Guarantor, dated the Closing Date and
addressed to you, to the effect that:
(i) Each of Publishing's subsidiaries, DT Holdings Limited ("DTH"), First
DT Holdings Limited ("FDTH") and Telegraph, is a corporation duly
incorporated and validly existing under the laws of England, with corporate
power and authority to own or lease its properties and to conduct its
business as described in the Registration Statement and the Prospectus.
(ii) All the issued shares in the capital of DTH, FDTH and Telegraph have
been duly authorized, validly issued and credited as fully paid.
27
27
(iii) Neither the offer, sale or delivery of the Securities, the
execution, delivery or performance of this Agreement, compliance by
Publishing or the Guarantor with the provisions of this Agreement or the
Indenture, nor consummation by Publishing or the Guarantor of the
transactions contemplated hereby (i) violates the memorandum or articles of
association of DTH, FDTH or Telegraph or (ii) constitutes a breach of or
default by FDTH, DTH or Telegraph under any agreement listed on Schedule III
hereto to which DTH, FDTH or Telegraph is a party or by which they are bound,
or is material and is known to such counsel, or (iii) violates any existing
English law, regulation, ruling, judgment, injunction, order or decree known
to such counsel that names DTH, FDTH or Telegraph or is specifically directed
to DTH, FDTH or Telegraph or their properties in England and would, in the
case of this clause (iii), have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of Publishing, the Guarantor and their subsidiaries considered as
one enterprise.
(iv) The statements in the Registration Statement and Prospectus with
respect to DTH, FDTH and Telegraph and English law, insofar as they are
descriptions of agreements listed on Schedule III hereto or are statements of
law or legal conclusions with respect thereto, are accurate in all material
respects and present fairly the information required to be shown.
(v) Argsub Limited is a corporation duly incorporated and validly existing
under the laws of England, with corporate power and authority to own or lease
its properties and to conduct its business as described in the Prospectus;
all the issued preference shares in the capital of Argsub Limited of the
series issued to DTH in exchange for the FDTH Preference Shares previously
held by DTH have been duly authorized and validly issued.
In rendering their opinion as aforesaid, counsel's opinion shall be limited
to the laws of England; provided that such counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by them or
Publishing as to laws of any jurisdiction other than England, provided that (1)
each such local counsel is acceptable to the Underwriters, (2) such reliance is
28
28
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Underwriters and is, in form and substance
satisfactory to the Underwriters and their counsel, and (3) counsel shall state
in their opinion that they believe that they and the Underwriters are justified
in relying thereon.
(e) You shall have received letters addressed to you dated the date hereof
and the Closing Date from KPMG Peat Marwick, independent certified public
accountants for Publishing and the Guarantor, substantially in the forms
heretofore approved by you.
(f) You shall have received on the Closing Date an opinion of Cravath,
Swaine & Xxxxx, counsel for the Underwriters, dated the Closing Date and
addressed to you, the Underwriters, as to such matters as the Representatives
may reasonably request.
(g) At the Closing Date and at each Date of Delivery, if any, counsel for
the Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated and related actions referred to
in subparagraphs (h), (i) and (k) hereof, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by Publishing and the
Guarantor in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters.
(h) At the Closing Date, Southam Inc. shall qualify as a Subsidiary of
Publishing pursuant to the terms of the Senior Indenture.
SECTION 6. Indemnification. (a) Publishing and the Guarantor agree,
jointly and severally, to indemnify and hold harmless the Underwriters and each
person, if any, who controls the Underwriters within the meaning of Section 15
of the 1933 Act to the extent and in the manner set forth in clauses (i), (ii)
and (iii) below:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of
29
29
a material fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the Registration
Statement pursuant to Rule 430A of the 1933 Act Regulations, if applicable,
and any information contained in a Rule 462(b) Registration Statement or any
amendments thereto, or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact contained
in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of Publishing and the Guarantor; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel chosen
by the Underwriters, reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
(i) and (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to Publishing or the
Guarantor by the Underwriters expressly for use in the Registration Statement
(or any amendment
30
30
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto)[; and the parties agree that the statements set forth in
the last paragraph on the cover page, the legends on the inside cover page, and
the statements in the second and fourth paragraphs (except for the first
sentence of the fourth paragraph) under the caption "Underwriting" in the
Prospectus constitute the only information so furnished].
(b) Each Underwriter severally agrees to indemnify and hold harmless
Publishing and the Guarantor, their directors, each of their officers who
signed the Registration Statement, and each person, if any, who controls
Publishing or the Guarantor within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions made in the Registration Statement (or amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to Publishing or the Guarantor by the Underwriters expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) [and set
forth in the last paragraph on the cover page, the stabilization legends on the
inside cover page, and the statements in the second and fourth paragraph
(except for the first sentence of the fourth paragraph) under the caption
"Underwriting" in the Prospectus].
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
31
31
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which an indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, Publishing and the Guarantor
on the one hand and the Underwriters on the other hand shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity incurred by Publishing and the Guarantor on the
one hand and the Underwriters on the other hand, as incurred, in such
proportions that (a) the Underwriters are responsible for that portion
represented by the percentage that the underwriting commission appearing on the
cover page of the Prospectus bears to the aggregate stated principal amount
appearing thereon, and (b) Publishing and the Guarantor are responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls the Underwriters within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Underwriters, and each
director of each of Publishing and the Guarantor, each officer of Publishing or
the Guarantor who signed the Registration Statement, and each person, if any,
who controls Publishing or the Guarantor within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as Publishing or the
Guarantor.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement and
the Price Determination Agreement, or contained in certificates of officers of
Publishing or the Guarantor submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriters or controlling person, or by or on behalf of
Publishing or the Guarantor, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement. (a) The Underwriters may terminate
this Agreement by notice to Publishing or the Guarantor at any time at or prior
to the Closing Date (i) if there has been, since the date of this Agreement or
since the respective date as of which information is given in the Prospectus,
any material adverse
32
32
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of Publishing, the Guarantor and their
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Underwriters, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Stock of the Guarantor has been suspended by the Commission, or if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by
either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities. Notice of such termination may be given by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
As used in this Section 10(a), the term "Prospectus" means the Prospectus in
the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4. Notwithstanding any such termination, the provisions
of Sections 6 and 7 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Date to purchase the Securities that
it or they are obligated to purchase pursuant to this Agreement (the "Defaulted
Securities"), you shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms set forth
in this Agreement; if, however, you have not completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities, the nondefaulting Underwriters
shall be obligated to purchase the full amount thereof in the
33
33
proportions that their respective Securities underwriting obligation
proportions bear to the underwriting obligation proportions of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities, this Agreement shall terminate without
liability on the part of any nondefaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriters" includes
any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by Publishing. If Publishing shall fail at the Closing
Date or at the Date of Delivery to sell and deliver the number of Securities
which it is obligated to sell hereunder, then this Agreement shall terminate
without any liability on the part of any non-defaulting party.
No action taken pursuant to this Section shall relieve Publishing from
liability, if any, in respect of such default.
SECTION 12. Notices. Unless otherwise specifically indicated herein, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to Xxxxxxx
Xxxxx at Xxxxxxx Xxxxx World Headquarters, North Tower, World Financial Center,
New York, New York 10281, attention of Syndicate Operations; notices to
Publishing shall be directed to it at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, attention of President or Secretary; and notices to the
Guarantor shall be directed to it at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, attention of President or Secretary.
34
34
SECTION 13. Parties. This Agreement and the Price Determination Agreement
shall each inure to the benefit of and be binding upon the Underwriters and
Publishing and the Guarantor and their respective successors, heirs and legal
representatives. Nothing expressed or mentioned in this Agreement or the Price
Determination Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and Publishing and the
Guarantor and their respective successors, heirs and legal representatives, and
the controlling persons and officers and directors referred to in Sections 6
and 7 hereof and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or the Price
Determination Agreement or any provision herein or therein contained. This
Agreement and the Price Determination Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters, Publishing and the Guarantor and their respective
successors, heirs and legal representatives and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from the Underwriters shall be deemed to be a successor by reason merely of
such purchase.
SECTION 14. Governing Law and Time. This Agreement and the Price
Determination Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time.
35
35
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to Publishing and the Guarantor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, Publishing and the Guarantor in accordance
with its terms.
Very truly yours,
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
by
_____________________________
X. X. Xxxxxxxx
Vice President, Treasury and
Finance
XXXXXXXXX INTERNATIONAL INC.
by
____________________________
X. X. Xxxxxxxx
Vice President, Treasury and
Finance
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
CIBC WOOD GUNDY SECURITIES INC.
SCOTIA CAPITAL MARKETS (USA) INC.
TORONTO DOMINION SECURITIES (USA) INC.
36
36
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
by
_______________________
37
Exhibit A
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
(a Delaware corporation)
XXXXXXXXX INTERNATIONAL INC.
(a Delaware corporation)
$___________
__% Senior Notes due 2005
PRICE DETERMINATION AGREEMENT
__________, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
CIBC WOOD GUNDY SECURITIES CORP.
SCOTIA CAPITAL MARKETS (USA) INC.
TORONTO DOMINION SECURITIES (USA) INC.
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated __________, 1997 (the
"Purchase Agreement") among Xxxxxxxxx International Publishing Inc., a Delaware
corporation ("Publishing"), Xxxxxxxxx International Inc. (the "Guarantor") and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, CIBC Wood Gundy Securities
Corp., Scotia Capital Markets (USA) Inc. and, and Toronto Dominion
38
2
Securities (USA) Inc. (the "Underwriters"). The Purchase Agreement provides
for the purchase by the Underwriters from Publishing, subject to the terms and
conditions set forth therein, of $___________ aggregate principal amount of
Publishing's __% Senior Notes due 2005 (the "Securities"). This Agreement is
the Price Determination Agreement referred to in the Purchase Agreement.
Pursuant to Section 2 of the Purchase Agreement, the undersigned agrees with
the Underwriters as follows:
1. The initial public offering price of the Securities shall be 100% of
the aggregate stated principal amount thereof, plus accrued interest from
__________, 1997 to the Closing Time.
2. The purchase price of the Securities to be paid by the several
Underwriters shall be __% of the aggregate stated principal amount thereof,
plus accrued interest from February 1, 1996 to the Closing Time.
3. The interest rate to be borne by the Securities shall be __% per
annum.
4. The Securities will mature on __________, 2005.
Publishing and the Guarantor represent and warrant to each of the
Underwriters that the representations and warranties of Publishing and the
Guarantor set forth in Section 1(a) of the Purchase Agreement are accurate as
though expressly made at and as of the date hereof.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to Publishing and the Guarantor a counterpart hereof,
whereupon this instrument along with all counterparts and together with the
Purchase Agreement shall be a binding agreement among the Underwriters and
Publishing and the Guarantor in accordance with its terms and the terms of the
Purchase Agreement.
Very truly yours,
39
3
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
By ____________________________
X. X. Xxxxxxxx
Vice President, Treasury and
Finance
XXXXXXXXX INTERNATIONAL INC.
By ____________________________
X. X. Xxxxxxxx
Vice President, Treasury and
Finance
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CIBC WOOD GUNDY SECURITIES CORP.
SCOTIA CAPITAL MARKETS (USA) INC.
TORONTO DOMINION SECURITIES (USA) INC.
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By ____________________________
40
SCHEDULE I
Principal Amount
of Securities
Underwriters to Be Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . . . $____________
CIBC Wood Gundy Securities Corp . . . . . . . . . . . . . . . . ____________
Scotia Capital Markets (USA) Inc. . . . . . . . . . . . . . . . ____________
Toronto Dominion Securities
(USA) Inc. . . . . . . . . . . . . . . . . . . . . . . . . . ____________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . $=============
41
SCHEDULE II
Significant Subsidiaries of Xxxxxxxxx International Inc.
and Xxxxxxxxx International Publishing Inc.
42
XXXXXXXXX INTERNATIONAL PUBLISHING INC.
(a Delaware corporation)
XXXXXXXXX INTERNATIONAL INC.
(a Delaware corporation)
$___________
__% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
__________, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
BEAR XXXXXXX & CO. INC.
CIBC WOOD GUNDY SECURITIES CORP.
TORONTO DOMINION SECURITIES (USA) INC.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxxxx International Publishing Inc., a Delaware corporation
("Publishing"), and Xxxxxxxxx International Inc., a Delaware corporation (the
"Guarantor"), confirm their agreement with Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJ"), Toronto Dominion Securities (USA) Inc. ("TD"), Bear
Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") and CIBC Wood Gundy Securities Corp.
("CIBC") (collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10), with respect to
the sale by Publishing and the purchase by the Underwriters, acting severally
and not jointly, of $___________ (all
43
dollar references herein are in U.S. dollars unless otherwise specifically
indicated) aggregate principal amount of Publishing's __% Senior Subordinated
Notes due 2007 (the "Securities"). The Notes will be guaranteed by the
Guarantor on a senior subordinated basis.
The aforesaid $___________ aggregate principal amount of Securities are to
be issued pursuant to an Indenture to be dated as of ________, 1997, as
amended, (the "Senior Subordinated Indenture"), among Publishing, the Guarantor
and Fleet National Bank of Connecticut, as trustee (the "Trustee").
The interest rate and certain other terms of the Securities and the purchase
price of the Securities to be paid by the Underwriters shall be agreed upon by
Publishing, the Guarantor and the Underwriters and such agreement shall be set
forth in a separate written instrument substantially in the form of Exhibit I
hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among Publishing, the Guarantor and the Underwriters and
shall specify such applicable information as is indicated in Exhibit A hereto.
The offering of the Securities will be governed by this Agreement, as
supplemented by the Price Determination Agreement. From and after the date of
the execution and delivery of the Price Determination Agreement, this Agreement
shall be deemed to incorporate, and all references herein to "this Agreement"
or "herein" shall be deemed to include, the Price Determination Agreement.
Concurrently with the execution of this Agreement, Publishing, the Guarantor
and Xxxxxxx Xxxxx, CIBC, Scotia Capital Markets (USA) Inc. ("Scotia") and TD
are entering into a senior note purchase agreement (the "Senior Note Purchase
Agreement") pursuant to which Publishing will issue and sell to Xxxxxxx Xxxxx,
CIBC, Scotia and TD $_________ aggregate principal amount of Publishing's __%
Senior Notes due 2005 (the "Senior Notes"). The pricing terms for the Senior
Notes to be sold pursuant to the Senior Notes Purchase Agreement shall be set
forth in a separate agreement (the "Senior Notes Price Determination
Agreement"), the form of which will be attached to the Senior Notes Purchase
Agreement.
Publishing and the Guarantor have prepared and filed with the Securities and
Exchange Commission (the
44
3
"Commission") a registration statement on Form S-3 (No. ________) and a related
preliminary prospectus for the registration of the Securities under the
Securities Act of 1933 (the "1933 Act"), have filed such amendments thereto, if
any, and such amended preliminary prospectuses as may have been required to the
date hereof, and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. The term "Registration Statement"
as used in this Agreement means the registration statement (including all
financial schedules and exhibits), as amended at the time it becomes effective,
and as thereafter amended by post-effective amendment, and any registration
statement and any amendments thereto filed pursuant to Rule 462(b) of the 1933
Act relating to the offering covered by the initial registration statement (the
"Rule 462(b) Registration Statement"). The term "Prospectuses" as used in this
Agreement means the prospectuses in the forms included in the Registration
Statement, or, if the prospectuses included in the Registration Statement omit
information in reliance on Rule 430A under the 1933 Act and such information is
included in prospectuses filed with the Commission pursuant to Rule 424(b)
under the 1933 Act, the term "Prospectuses" as used in this Agreement means the
prospectuses in the forms included in the Registration Statement as
supplemented by the addition of the Rule 430A information contained in the
prospectuses filed with the Commission pursuant to Rule 424(b).
Publishing and the Guarantor understand that the Underwriters propose to
make a public offering of the Securities as soon as the Underwriters deem
advisable after the Registration Statement becomes effective and the Price
Determination Agreement has been executed and delivered.
SECTION 1. Representations and Warranties. (a) Publishing and the
Guarantor jointly and severally represent and warrant to the Underwriters as of
the date hereof and as of the date of the Price Determination Agreement (such
latter date being hereinafter referred to as the "Representation Date") as
follows:
(i) The Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective
amendment thereto or any Rule 462(b) Registration Statement or amendment
thereto shall become effective and the Prospectus and any supplement or
amendment thereto when
45
4
filed with the Commission under Rule 424(b) under the 1933 Act, complied or
will comply in all material respects with the provisions of the 1933 Act and
did not or will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to the Underwriters furnished to
Publishing and the Guarantor in writing by or on behalf of the Underwriters
through you expressly for use therein.
(ii) All the outstanding shares of common stock of Publishing and the
Guarantor have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; and the
authorized capital stock of Publishing and the Guarantor conforms to the
description thereof in the Registration Statement and the Prospectus. Except
as described in the Prospectus, there are no outstanding options, warrants or
other rights issued by Publishing or the Guarantor calling for the issuance
of, nor any written agreement entered into by Publishing or the Guarantor or
oral commitments of Publishing or the Guarantor to issue, any shares of
capital stock or any other security of Publishing or the Guarantor or any
security convertible into or exchangeable or exercisable for capital stock or
any other security of Publishing or the Guarantor.
(iii) Publishing and the Guarantor are corporations duly incorporated and
validly existing in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate their properties
and to conduct their business as described in the Registration Statement and
the Prospectus.
(iv) The only significant subsidiaries (as defined in the 0000 Xxx) of
Publishing and the Guarantor are the subsidiaries listed in Schedule II
hereto (each a "Subsidiary" and collectively the "Subsidiaries"). Each
Subsidiary is a corporation duly incorporated, validly existing and in good
standing in the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties
46
5
and to conduct its business as described in the Registration Statement and
the Prospectus, and is duly qualified as a foreign corporation for the
transaction of business in and is in good standing under the laws of each
other jurisdiction where the nature of its properties or the conduct of its
business requires such qualification, except where the failure so to qualify
does not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of such
Subsidiary; all the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and all shares of the capital stock of the Subsidiaries that
are owned directly or indirectly by Publishing or the Guarantor are owned
free and clear of any lien, adverse claim, security interest, equity, or
other encumbrance, except, to the extent set forth or described in the
Registration Statement and the Prospectus, currently existing liens, claims
and security interests of creditors and liens, claims and security interests
pursuant to the terms of the [New Bank Credit Facility] (as defined).
(v) There are no legal or governmental proceedings pending or, to the
knowledge of Publishing or the Guarantor, threatened, against Publishing or
the Guarantor or any of the Subsidiaries, or to which Publishing or the
Guarantor or any of the Subsidiaries, or to which any of their respective
properties is subject, that are required to be described in the Registration
Statement or the Prospectus but are not described as required, or which might
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operation of Publishing, the
Guarantor and their subsidiaries considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof or which
might materially and adversely affect the consummation of this Agreement; all
pending legal or governmental proceedings to which Publishing or the
Guarantor or any of the Subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material; and there are
no agreements, contracts, indentures, leases or other instruments that
47
6
are required to be described in the Registration Statement or the Prospectus
or to be filed as an exhibit to the Registration Statement that are not
described or filed as required by the 1933 Act.
(vi) Except as set forth in the Prospectus, neither Publishing, the
Guarantor nor any of the Subsidiaries (A) is in violation of its certificate
or articles of incorporation or by-laws, or other organizational documents,
(B) is in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to Publishing or the Guarantor or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over Publishing or the Guarantor or any of the
Subsidiaries, or (C) is in default in any material respect in the performance
of any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any material agreement,
indenture, lease or other instrument to which Publishing or the Guarantor or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, except, in the case of clause (B) with
respect to the Subsidiaries, where such violation does not have a material
effect on the condition (financial or other), business, properties, net worth
or results of operations of Publishing, the Guarantor and their subsidiaries
considered as one enterprise.
(vii) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement and the Price Determination
Agreement by Publishing or the Guarantor, nor the consummation by Publishing
or the Guarantor of the transactions contemplated hereby (A) requires any
consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration
of the Securities under the 1933 Act and the Securities Exchange Act of 1934
(the "Exchange Act") and compliance with the securities or Blue Sky laws of
various jurisdictions, both of which have been or will be effected in
accordance with this Agreement) or violates or will violate the certificate
or articles of incorporation or by-laws, or other organizational documents,
of Publishing or the Guarantor or any of the
48
7
Subsidiaries or (B) constitutes or will constitute a breach of, or a default
under, any material agreement, indenture, lease or other instrument to which
Publishing or the Guarantor or any of the Subsidiaries is a party or by which
any of them or any of their respective properties may be bound (except where
consents or waivers as to such default have been obtained prior to the time
of the execution of the Price Determination Agreement (the "Pricing Time")),
or violates or will violate any statute, law, regulation or judgment,
injunction, order or decree applicable to Publishing or the Guarantor or any
of the Subsidiaries or any of their respective properties, or will result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of Publishing or the Guarantor or any of the Subsidiaries
pursuant to the terms of any agreement or instrument to which any of them is
a party or by which any of them may be bound or to which any of the property
or assets of any of them is subject.
(viii) KPMG Peat Marwick LLP, who have certified or shall certify certain
of the financial statements included in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), are independent public
accountants as required by the Act.
(ix) The supplemental consolidated financial statements of the Guarantor
and its subsidiaries and Publishing (including the financial statements of
the Restricted Group as defined in the Registration Statement), together with
related notes, included in the Registration Statement and the Prospectus (and
any amendment or supplement thereto), (A) in the case of the historical
financial statements present fairly the supplemental consolidated financial
position and results of operations of the Guarantor and its subsidiaries and
of the Restricted Group, and (B) in the case of the pro forma financial
statements present fairly, on a pro forma basis, the pro forma supplemental
consolidated financial position and results of operations of the Guarantor
and its subsidiaries, including Telegraph Group Limited ("Telegraph") and its
indirect equity investments in Southam Inc. ("Southam"), in each case on the
basis stated in the Registration Statement at the respective dates or for the
respective periods to which they
49
8
apply. Such financial statements, pro forma financial statements and related
notes have been prepared in accordance with U.S. generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and statistical
information and data included in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately presented
in all material respects and prepared on a basis consistent with such
financial statements and the books and records of the Guarantor, Publishing
and their subsidiaries.
(x) The execution and delivery of, and the performance by Publishing and
the Guarantor of their obligations under, this Agreement and the Price
Determination Agreement have been duly and validly authorized by Publishing
and the Guarantor, and this Agreement and the Price Determination Agreement
have been duly executed and delivered by Publishing and the Guarantor.
(xi) Except as disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), subsequent to the respective dates
as of which such information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), neither Publishing nor
the Guarantor nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Publishing, the
Guarantor and their subsidiaries considered as one enterprise, and there has
not been any change in the capital stock, or material increase in the
short-term debt or long-term debt, of Publishing or the Guarantor or any of
the Subsidiaries, or any material adverse change, or any development
involving, or which may reasonably be expected to involve, a prospective
material adverse change, in the condition (financial or other), business, net
worth or results of operations of Publishing, the Guarantor and their
subsidiaries considered as one enterprise.
(xii) Each of Publishing, the Guarantor and the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by them (excluding properties
50
9
owned by West Ferry Printers, Trafford Park Printers, or Southam), free and
clear of all liens, claims, security interests or other encumbrances except
to the extent set forth or described in the Registration Statement and the
Prospectus or in a document filed as an exhibit to the Registration Statement
or are not material to the business of Publishing, the Guarantor and their
subsidiaries considered as one enterprise and all the property described in
the Prospectus as being held under lease by each of Publishing, the Guarantor
and the Subsidiaries is held by it under valid, subsisting and enforceable
leases with such exceptions as are not material to the business of
Publishing, the Guarantor and their subsidiaries considered as one enterprise
and do not interfere with the use made and proposed to be made of such
properties by Publishing and the Guarantor and their subsidiaries.
(xiii) Neither Publishing nor the Guarantor has distributed and, prior to
the later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Securities, neither will distribute any offering material
in connection with the offering and sale of the Securities other than the
Registration Statement, the Prospectus or other materials, if any, permitted
by the Act.
(xiv) Publishing, the Guarantor and each of the Subsidiaries has such
governmental authorizations, approvals, orders, licenses, certificates,
franchises and permits of and from all governmental or regulatory officials
and bodies ("permits") as are necessary to own its respective properties and
to conduct its business in the manner described in the Prospectus, with such
exceptions as are not material to the business of Publishing, the Guarantor
and the Subsidiaries considered as one enterprise and do not interfere with
the use made and proposed to be made of such properties by Publishing, the
Guarantor and the Subsidiaries or are otherwise disclosed; Publishing, the
Guarantor and each of the Subsidiaries has fulfilled and performed all its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of the holder of any such permit, with such exceptions as are not material to
the business of Publishing and the
51
10
Guarantor and their subsidiaries considered as one enterprise and do not
interfere with the use made and proposed to be made of such properties by
Publishing and the Guarantor and the Subsidiaries or are otherwise disclosed;
and, except as described in the Prospectus, none of such permits contains any
restriction that is materially burdensome to Publishing and the Guarantor and
their subsidiaries considered as one enterprise.
(xv) Publishing and the Guarantor maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xvi) To Publishing's or the Guarantor's knowledge, neither Publishing nor
the Guarantor nor any of the Subsidiaries nor any employee or agent of
Publishing, the Guarantor or any Subsidiary has made any payment of funds of
Publishing, the Guarantor or any Subsidiary or received or retained any funds
in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Prospectus.
(xvii) Except as described in the Registration Statement and the
Prospectus, Publishing, the Guarantor and each of the Subsidiaries have filed
all tax returns required to be filed, which returns are complete and correct,
and neither Publishing, the Guarantor nor any Subsidiary is in default in the
payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, with such exceptions as are not material to
the financial position of Publishing, the Guarantor and their subsidiaries
considered as one enterprise.
(xviii) Publishing, the Guarantor and the Subsidiaries own, or possess
adequate rights to use,
52
11
all patents, trademarks, service marks, trade names, copyrights, licenses,
and rights described in the Prospectus as being owned by them or any of them
or necessary for the conduct of their respective businesses, and neither
Publishing nor the Guarantor is aware of any claim to the contrary or any
challenge by any other person to the rights of Publishing, the Guarantor and
the Subsidiaries with respect to the foregoing.
(xix) Neither Publishing nor the Guarantor is now, and after sale of the
Securities to be sold by it hereunder and application of the net proceeds
from such sale as described in the Prospectus under the caption "Use of
Proceeds" will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xx) Publishing and the Guarantor have complied with all provisions of
Florida Statutes, Section 517.075, relating to issuers doing business with
Cuba.
(xxi) The Indenture has been duly authorized by Publishing and the
Guarantor, will be substantially in the form heretofore delivered to the
Underwriters and, when duly executed and delivered by Publishing, the
Guarantor and the Trustee, will have been duly qualified under the 1939 Act
and will constitute a valid and binding obligation of Publishing and the
Guarantor, enforceable against Publishing and the Guarantor in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law);
the Indenture conforms to the description thereof contained in the
Prospectus; the Indenture and the form and issuance of the Securities
thereunder comply with the provisions of the 0000 Xxx.
(xxii) The Securities have been duly authorized by Publishing and the
Guarantor and, when executed, authenticated, issued and delivered in the
manner provided for in the Indenture and sold and paid for as provided in
this Agreement, the Securities will
53
12
constitute valid and binding obligations of the Publishing and the Guarantor
enforceable against Publishing and the Guarantor in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law);
the holders thereof will be entitled to the benefits of the Indenture; and
the Indenture and the Securities conform to the descriptions thereof
contained in the Prospectus.
(xxiii) No holder of any security of Publishing or the Guarantor nor any
other person has any right, contractual or otherwise, to have any securities
included in the Registration Statement or the right, because of the filing of
the Registration Statement or consummation of the transactions contemplated
by this Agreement, to require registration of any security of Publishing or
the Guarantor under the Act.
(xxiv) Except as set forth in the Prospectus, no labor dispute with the
employees of Publishing or the Guarantor or any of the Subsidiaries exists
or, to the knowledge of Publishing or the Guarantor, is imminent, which might
be expected to result in a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of Publishing, the Guarantor and their subsidiaries considered as
one enterprise.
(xxv) Except as set forth in the Registration Statement and except as would
not result in a material effect on the condition (financial or other),
business, properties, net worth or results of operations of Publishing, the
Guarantor and their subsidiaries considered as one enterprise and which would
not materially and adversely affect the consummation of this Agreement, (i)
to the knowledge of Publishing and the Guarantor after reasonable inquiry,
neither Publishing nor the Guarantor is in violation of any applicable
Federal, foreign, state or local environmental law or any applicable order of
any governmental authority with respect thereto; (ii) neither Publishing nor
the Guarantor is in
54
13
violation of or subject to any existing, or pending or, to Publishing's and
the Guarantor's knowledge, threatened action, suit, investigation, inquiry or
proceeding by any governmental authority nor is Publishing or the Guarantor
subject to any environmental claim by any citizens' group or to remedial
obligations under any applicable Federal, foreign, state or local
environmental law; (iii) Publishing, the Guarantor and the subsidiaries are
in compliance with all permits or similar authorizations, if any, required to
be obtained or filed in connection with their operations including, without
limitation, emissions, discharges, treatment, storage, disposal or release of
a Hazardous Material into the environment except where any noncompliance
could not reasonably be expected to have a material adverse effect on the
operations of Publishing, the Guarantor and the Subsidiaries; and (iv) to the
knowledge of Publishing and the Guarantor after reasonable inquiry, no
Hazardous Materials have been disposed of or released by Publishing or the
Guarantor or the Subsidiaries at, under or on any property currently or
formerly owned or operated by Publishing, the Guarantor or the Subsidiaries,
except in accordance with applicable environmental laws. The term "Hazardous
Material" means any oil (including petroleum products, crude oil and any
fraction thereof), chemical, contaminant, pollutant, solid or hazardous waste
or material, or Hazardous Substance (as defined in Section 101(14) of the
Comprehensive Environmental Response, Compensation and Liability Act and
regulations thereunder), that is regulated as toxic or hazardous to human
health or the environment under any Federal, foreign, state or local
environmental law.
(xxvi) Publishing and the Guarantor and each other person or entity that,
together with Publishing and the Guarantor, is treated as a single employer
under Section 414 of the Internal Revenue Code of 1986, as amended (the
"Code") (each such person or entity being an "ERISA Affiliate"), complies in
all material respects with the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and the Code with respect to each pension plan
(as defined in Section 3(2) of ERISA) maintained by Publishing, the Guarantor
or such ERISA Affiliate, and none of Publishing, the Guarantor or any of its
ERISA Affiliates has incurred any material liability to any
55
14
pension plan or to the Pension Benefit Guaranty Corporation that has not been
fully paid as of the date hereof except as disclosed in the Registration
Statement or Prospectus (or any amendment or supplement thereto).
(b) Any certificate signed by an officer of Publishing or the Guarantor and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by Publishing and the Guarantor to the
Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) On the basis
of the representations and warranties herein contained, and subject to the
terms and conditions herein set forth, Publishing agrees to sell to the
Underwriters, and the Underwriters agree to purchase from Publishing, at the
purchase price set forth in the Price Determination Agreement, the Securities.
(b) If Publishing has elected not to rely upon Rule 430A under the 1933 Act
Regulations, the initial public offering price and the purchase price to be
paid by the Underwriters shall be agreed upon and set forth in the Price
Determination Agreement, dated the date hereof, and an amendment to the
Registration Statement containing such information will be filed with the
Commission, before the Registration Statement becomes effective.
(c) If Publishing has elected to rely upon Rule 430A under the 1933 Act
Regulations, the initial public offering price and the purchase price to be
paid by the Underwriters shall be agreed upon and set forth in the Price
Determination Agreement. In the event that the Price Determination Agreement
has not been executed by the close of business on the fourth business day
following the date on which the Registration Statement becomes effective, this
Agreement shall terminate forthwith, without liability of any party to any
other party except that Sections 6, 7 and 8 shall remain in effect.
(d) Publishing will deliver the Securities to the Underwriters, at the
offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or
at such other place as shall be agreed upon by Publishing, the Guarantor and
the Underwriters, against payment of the gross purchase price by wire transfer
to Publishing in U.S. dollars, in
56
15
funds immediately available to Publishing, at 10:00 a.m. either (i) on the
third business day following the date upon which the Publishing and the
Guarantor shall have fulfilled all requirements which under the 1933 Act must
be fulfilled to qualify the Securities for distribution and the Registration
Statement shall have become effective or (ii) if Publishing has elected to rely
upon Rule 430A under the 1933 Act Regulations, on the third business day after
execution of the Price Determination Agreement, or at such other time not later
than ten full business days thereafter as the Underwriters and Publishing
determine (such time being herein referred to as the "Closing Date"). The
Securities so to be delivered will be in definitive, fully registered form in
such denominations ($1,000 principal amount or an integral multiple thereof)
and registered in such names as the Underwriters shall request in writing at
least two full business days prior to the Closing Date, and will be made
available for checking and packaging at the office of the Trustee, not later
than 10:00 a.m. on the business day prior to the Closing Date. Concurrently
with the payment by the Underwriters of the gross purchase price for the
Securities in the manner described in this Section 2(d), Publishing will pay to
the Underwriters by certified or official bank check or checks in U.S. dollars,
in funds available the next succeeding business day drawn to the order of
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, North Tower, World
Financial Center, New York, New York 10281-1305, for the account of the
Underwriters, an amount equal to the underwriting commission applicable to the
Securities as described in the Price Determination Agreement.
SECTION 3. Covenants of Publishing and the Guarantor. Publishing and the
Guarantor, jointly and severally, covenant with the Underwriters as follows:
(a) Publishing will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of the Registration Statement and
any amendment thereto (including any posteffective amendment), (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose. Publishing will make every reasonable effort to prevent the issuance
of
57
16
any stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Publishing will furnish to the Underwriters, without charge, five true
and correct copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the Registration Statement, and of any Rule 462(b) Registration
Statement and any amendment thereto, and will also furnish to you, without
charge, such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto, but without exhibits, and of
any Rule 462(b) Registration Statement and any amendment thereto, as you may
reasonably request.
(c) Publishing will not (i) file any amendment to the Registration
Statement, any Rule 462(b) Registration Statement or amendment thereto, or make
any amendment or supplement to the Prospectuses of which you shall not
previously have been advised or to which you shall reasonably object in writing
after being so advised or (ii) so long as, in the written opinion of counsel
for the Underwriters (a copy of which shall be delivered to Publishing), a
Prospectus is required to be delivered in connection with sales by any
Underwriters or dealer, file any information, documents or reports pursuant to
the Exchange Act, without delivering a copy of such information, documents or
reports to you prior to such filing.
(d) Publishing will furnish to the Underwriters, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act
or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies
of the Prospectus (as amended or supplemented) as the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act or the respective applicable rules and regulations of the Commission
thereunder.
(e) If any event shall occur as a result of which it is necessary, in the
opinion of counsel for the Underwriters, to amend or supplement the Prospectus
in order to make the Prospectus not misleading, in the light of the
circumstances existing at the time it is delivered to a purchaser, Publishing
will forthwith amend or supplement the Prospectus (in form and substance
satisfactory to counsel for the Underwriters so that, as so amended or
supplemented,
58
17
the Prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances existing at the time it is delivered to a
purchaser, not misleading), and Publishing will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(f) Publishing will endeavor, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriters may designate; provided, however, that Publishing shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. In each jurisdiction in which the Securities have been so
qualified Publishing will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(g) Publishing will make generally available to its security holders as
soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning
not later than the first day of Publishing's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(h) Publishing will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under "Use of
Proceeds".
(i) If, at the time that the Registration Statement becomes effective, any
information shall have been omitted therefrom in reliance upon Rule 430A of the
1933 Act Regulations, then immediately following the execution of the Price
Determination Agreement, Publishing will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule 424(b) of
the 1933 Act Regulations, copies of an amended Prospectus, or, if required by
such Rule 430A, a post-effective amendment of the Registration Statement
(including an amended Prospectus), containing all information so omitted.
59
18
(j) Except as provided in this Agreement, Publishing will not directly or
indirectly, offer, sell, grant any option to purchase or otherwise dispose of,
any debt security of Publishing which is publicly offered or sold pursuant to
Rule 144A of the 1933 Act Regulations for a period of 180 days after the date
of the Prospectus, without the prior written consent of Xxxxxxx Xxxxx.
(k) For a period of three years after the Closing Date the Guarantor will
furnish to the Underwriters copies of all reports and communications delivered
to the Guarantor's stockholders or to holders of the Securities as a class and
will also furnish copies of all reports (excluding exhibits) filed with the
Commission on Form 8-K, 10-Q and 10-K, and all other reports and information
furnished to its stockholders generally, at the time such reports are furnished
to stockholders generally. For such period of time, the Guarantor will file
with the Commission such documents required to be filed with the Commission
pursuant to Sections 13(a) and 15(d) of the 1934 Act, whether or not the
Guarantor or Publishing has a class of securities registered under the 1934
Act.
(l) The Company will use reasonable efforts to effect the listing of the
Securities on the New York Stock Exchange on the date of the Price
Determination Agreement.
SECTION 4. Payment of Expenses. Publishing will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed, and of
each amendment thereto, (ii) the printing of this Agreement, the Price
Determination Agreement, the Indenture and any Legal Investment Survey, (iii)
the preparation, issuance and delivery of the certificates for the Securities
to the Underwriters, (iv) the fees and disbursements of Publishing's and the
Guarantor's counsel and accountants, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f),
including filing fees and the fee and the disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky
60
19
Survey, (viii) the filing fee of the National Association of Securities
Dealers, Inc., (ix) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee, in connection with the Indenture
and the Securities, and (x) any fees charged by investment-rating agencies for
the rating of the Securities.
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 5, Section 9(a) or Section 11, Publishing shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of Publishing and the Guarantor herein contained, to the
performance by Publishing and the Guarantor of their obligations hereunder, and
to the following further conditions:
(a) The Registration Statement shall have become effective not later than
5:30 p.m. on the date hereof, or, with the consent of the Underwriters, at a
later time and date, not later, however, than 5:30 p.m. on the first business
day following the date hereof or at such later time and date as may be approved
by the Underwriters; and at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission. If
Publishing has elected to rely upon Rule 430A of the 1933 Act Regulations, the
price of the Securities and any price-related information previously omitted
from the effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to the
Closing Date Publishing shall have provided evidence satisfactory to the
Underwriters of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the 1933 Act Regulations.
(b) At the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Prospectus, any
61
20
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of Publishing and the
Guarantor and their subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the Chairman and Chief Executive Officer of each of
Publishing and the Guarantor and of the Vice President of each of Publishing
and the Guarantor, dated as of Closing Date, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties
in Section 1(a) are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) Publishing and the
Guarantor have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the Closing Date, and
(iv) no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the Commission. As used in this Section 5, the term "Prospectus"
means the Prospectus in the form first used to confirm sales of Securities.
(c) You shall have received on the Closing Date an opinion of Xxxxxxxxxxx
& Xxxxxxxx LLP, counsel for Publishing and the Guarantor, dated the Closing
Date and addressed to you, to the effect that:
(i) Publishing, the Guarantor and each of the United States Subsidiaries
(the "U.S. Subsidiaries") is a corporation duly incorporated and validly
existing in good standing under the laws of the jurisdiction of its
organization, with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), and
is duly qualified as a foreign corporation for the transaction of business in
and is in good standing under the laws of each jurisdiction where the nature
of its properties or the conduct of its business requires such qualification,
except where the failure so to qualify would not have a material adverse
effect on the condition (financial or otherwise), business, properties, net
worth or results of operations of Publishing, the Guarantor and their
subsidiaries, considered as one enterprise.
62
21
(ii) All the outstanding shares of capital stock of each of the U.S.
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned of record by Publishing directly, or indirectly
through one of the other U.S. Subsidiaries, and are not subject to any
perfected security interest, or, to the best knowledge of such counsel after
reasonable inquiry, any adverse claims within the meaning of the Uniform
Commercial Code, except, to the extent set forth or described in the
Registration Statement and the Prospectus, currently existing liens, claims
and security interests of creditors and liens, claims and security interests
pursuant to the terms of the New Bank Credit Facility (as defined).
(iii) The authorized and outstanding capital stock of the Guarantor to be
in effect as of the Closing Date is as set forth under the caption
"Capitalization" in the Prospectus.
(iv) The Registration Statement and all post-effective amendments, if any,
have become effective under the 1933 Act, the Indenture has been duly
qualified under the 1939 Act and, to the best knowledge of such counsel after
reasonable inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
are pending before or contemplated by the Commission; and any required filing
of the Prospectus pursuant to Rule 424(b) has been made in accordance with
Rule 424(b).
(v) Publishing and the Guarantor have corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Securities to
the Underwriter as provided herein, and this Agreement has been duly
authorized, executed and delivered by Publishing and the Guarantor.
(vi) Neither Publishing, the Guarantor nor any of the U.S. Subsidiaries is
in violation of its certificate or articles of incorporation or its
respective by-laws or, to the best knowledge of such counsel after reasonable
inquiry, is in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note or other
evidence of indebtedness to which the Guarantor,
63
22
Publishing or any U.S. Subsidiary is a party that is included as an exhibit
to, or otherwise described or summarized in, the Registration Statement,
except as may be disclosed in the Prospectus and except for defaults under
existing indebtedness of Publishing, the Guarantor or any U.S. Subsidiary as
to which consents or waivers have been obtained prior to the Pricing Time.
(vii) Neither the offer, sale or delivery of the Securities, the execution,
delivery or performance of this Agreement or the Indenture, compliance by
Publishing or the Guarantor with the provisions of this Agreement or the
Indenture, nor consummation by Publishing or the Guarantor of the
transactions contemplated hereby violates the certificate or articles of
incorporation or by-laws, or other organizational documents, of Publishing or
the Guarantor or any of the U.S. Subsidiaries or constitutes a breach of or
default under any agreement, indenture, lease or other instrument to which
Publishing, the Guarantor or any of the U.S. Subsidiaries is a party or by
which any of them or any of their respective properties is bound (except for
defaults under existing indebtedness of Publishing, the Guarantor or any U.S.
subsidiary as to which consents or waivers have been obtained prior to the
Pricing Time) and that is an exhibit to the Registration Statement, or is
material and is known to such counsel after reasonable inquiry, or will
result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of Publishing, the Guarantor or any of the U.S.
Subsidiaries, nor will any such action violate any existing law, regulation,
ruling (assuming compliance with all applicable state securities and Blue Sky
laws), judgment, injunction, order or decree known to such counsel after
reasonable inquiry, that names Publishing, the Guarantor or any of the U.S.
Subsidiaries and is specifically directed to any of them or any of their
respective properties.
(viii) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of Publishing or the Guarantor (except as have been obtained under the
1933 Act, the Exchange Act, and the 1939 Act or such as may be required under
state
64
23
securities or Blue Sky laws governing the purchase and distribution of the
Securities) for the valid issuance and sale of the Securities by Publishing
to the Underwriters or the consummation by Publishing and the Guarantor of
the other transactions set forth in this Agreement.
(ix) The Registration Statement and the Prospectus and any supplements or
amendments thereto (except for the financial statements and the notes thereto
and the schedules and other financial and statistical data included therein,
as to which such counsel need not express any opinion) comply as to form in
all material respects with the requirements of the 1933 Act.
(x) Assuming that (A) Publishing and the Guarantor have all requisite
corporate power and authority to execute, deliver and perform its obligations
under the Securities and the Indenture, (B) the Securities have been duly
authorized, executed and delivered by Publishing and the Guarantor, (C) the
Indenture has been duly authorized, executed and delivered by Publishing and
the Guarantor and the Trustees and (D) the Securities have been duly
authenticated by one of the Trustees pursuant to the Indenture (which fact
such counsel need not determine by an inspection of the Securities), the
Securities and the Indenture each constitute valid and binding obligations of
Publishing and the Guarantor, enforceable against Publishing and the
Guarantor in accordance with their respective terms, in each case subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws affecting creditors' rights generally from
time to time in effect; and the holders of the Securities are entitled to the
benefits of the Indenture. The enforceability of the obligations of
Publishing and the Guarantor is also subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(xi) To the best knowledge of such counsel after reasonable inquiry, (A)
other than as described or contemplated in the Prospectus (or any supplement
thereto), there are no legal or governmental proceedings pending or
threatened against Publishing, the Guarantor or any of the U.S. Subsidiaries,
or to
65
24
which Publishing, the Guarantor or any of the U.S. Subsidiaries, or any of
their property, is subject, which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto), and (B) there are no material agreements, contracts, indentures,
leases or other instruments to which the Guarantor, Publishing or any U.S.
Subsidiary is a party, that are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or to be
filed as an exhibit to the Registration Statement that are not described or
filed as required, as the case may be.
(xii) The statements in the Registration Statement and Prospectus, insofar
as they are descriptions or summaries of contracts, agreements or other legal
documents to which Publishing, the Guarantor or any U.S. Subsidiary is a
party, or are statements of law or legal conclusions (other than matters of
English, Canadian, Australian or Israeli law), are accurate in all material
respects and present fairly the information required to be shown.
(xiii) Except as described in the Prospectus and except for options granted
under the Company's 1994 Stock Option Plan, there are no outstanding options,
warrants or other rights issued by Publishing or the Guarantor calling for
the issuance of, and to the best knowledge of such counsel after reasonable
investigation there are no written agreements entered into by Publishing or
the Guarantor or binding oral commitments by Publishing or the Guarantor to
issue, any shares of capital stock of Publishing or the Guarantor or any
security convertible into or exchangeable or exercisable for capital stock of
Publishing or the Guarantor.
(xiv) Except as described in the Prospectus, there is no holder of any
security of Publishing or the Guarantor or, to the best knowledge of such
counsel after reasonable inquiry, any other person who has the right,
contractual or otherwise, to cause Publishing or the Guarantor to sell or
otherwise issue to them, or to permit them to underwrite the sale of, the
Securities or the right to have any securities of Publishing or the Guarantor
included in the Registration Statement or the right, as a result of the
filing of the Registration Statement, to require registration under
66
25
the 1933 Act of any securities of Publishing or the Guarantor.
(xv) At the Closing Date, Southam Inc. qualifies as a Subsidiary as
defined in the Senior Indenture.
(xvi) Although counsel cannot opine as to factual matters, and the
character of determinations involved in the registration process in such that
counsel cannot pass upon and assume any responsibility for the accuracy or
completeness of the information contained in the Registration Statement and
the Prospectus, counsel shall advise the Underwriters that on the basis of
its review of the Registration Statement and the Prospectus and its
participation in the preparation thereof (relying as to materiality to a
large extent upon the statements of officers and other representatives of the
Company) that counsel has no reason to believe that (A) the Registration
Statement (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion), at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (B) the
Prospectus (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion) at the time the
Prospectus was issued, includes an untrue statement of a material fact or
omitted state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; also, that counsel has no reason to believe, based upon the
procedures described above, that either the Registration Statement or the
Prospectus (except for the financial statements and notes thereto and the
schedules and other financial or statistical data included therein or omitted
therefrom, as to which counsel need express no opinion) as of the date and
time of delivery of counsel's opinion contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading.
67
26
In rendering their opinion as aforesaid, counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by them,
Publishing or the Guarantor as to laws of any jurisdiction other than the
United States, the Commonwealth of Pennsylvania or the Delaware General
Corporation Law, provided that (1) each such local counsel is acceptable to the
Underwriters, (2) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the Underwriters
and is, in form and substance, satisfactory to the Underwriters and their
counsel, and (3) counsel shall state in their opinion that they believe that
they and the Underwriters are justified in relying thereon. Counsel may also
rely, to the extent they deem such reliance proper, as to matters of fact upon
certificates of officers of Publishing or the Guarantor and of government
officials. Copies of all such certificates shall be furnished to counsel to
the Underwriters on the Closing Date. Such opinion may state that it is
limited to the laws of the Commonwealth of Pennsylvania (excluding the conflict
of laws rules), the Delaware Business Corporation Law and the Federal
securities laws of the United States, and that such counsel expresses no
opinion as to any other laws (except with respect to the Indenture, as to which
such counsel will express certain opinions under New York law) and further that
such opinions are being given as if the Purchase Agreement was governed by
Pennsylvania law.
(d) You shall have received on the Closing Date an opinion of Xxxxxxxx
Chance, special English counsel for the Guarantor, dated the Closing Date and
addressed to you, to the effect that:
(i) Each of Publishing's subsidiaries, DT Holdings Limited ("DTH"), First
DT Holdings Limited ("FDTH") and Telegraph, is a corporation duly
incorporated and validly existing under the laws of England, with corporate
power and authority to own or lease its properties and to conduct its
business as described in the Registration Statement and the Prospectus.
(ii) All the issued shares in the capital of DTH, FDTH and Telegraph have
been duly authorized, validly issued and credited as fully paid.
(iii) Neither the offer, sale or delivery of the Securities, the execution,
delivery or performance of
68
27
this Agreement, compliance by Publishing or the Guarantor with the provisions
of this Agreement or the Indenture, nor consummation by Publishing or the
Guarantor of the transactions contemplated hereby (i) violates the memorandum
or articles of association of DTH, FDTH or Telegraph or (ii) constitutes a
breach of or default by FDTH, DTH or Telegraph under any agreement listed on
Schedule III hereto to which DTH, FDTH or Telegraph is a party or by which
they are bound, or is material and is known to such counsel, or (iii)
violates any existing English law, regulation, ruling, judgment, injunction,
order or decree known to such counsel that names DTH, FDTH or Telegraph or is
specifically directed to DTH, FDTH or Telegraph or their properties in
England and would, in the case of this clause (iii), have a material adverse
effect on the condition (financial or other), business, properties, net worth
or results of operations of Publishing, the Guarantor and their subsidiaries
considered as one enterprise.
(iv) The statements in the Registration Statement and Prospectus with
respect to DTH, FDTH and Telegraph and English law, insofar as they are
descriptions of agreements listed on Schedule III hereto or are statements of
law or legal conclusions with respect thereto, are accurate in all material
respects and present fairly the information required to be shown.
(v) Argsub Limited is a corporation duly incorporated and validly existing
under the laws of England, with corporate power and authority to own or lease
its properties and to conduct its business as described in the Prospectus;
all the issued preference shares in the capital of Argsub Limited of the
series issued to DTH in exchange for the FDTH Preference Shares previously
held by DTH have been duly authorized and validly issued.
In rendering their opinion as aforesaid, counsel's opinion shall be limited
to the laws of England; provided that such counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by them or
Publishing as to laws of any jurisdiction other than England, provided that (1)
each such local counsel is acceptable to the Underwriters, (2) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Underwriters
69
28
and is, in form and substance satisfactory to the Underwriters and their
counsel, and (3) counsel shall state in their opinion that they believe that
they and the Underwriters are justified in relying thereon.
(e) You shall have received letters addressed to you dated the date hereof
and the Closing Date from KPMG Peat Marwick, independent certified public
accountants for Publishing and the Guarantor, substantially in the forms
heretofore approved by you.
(f) You shall have received on the Closing Date an opinion of Cravath,
Swaine & Xxxxx, counsel for the Underwriters, dated the Closing Date and
addressed to you, the Underwriters, as to such matters as the Representatives
may reasonably request.
(g) At the Closing Date and at each Date of Delivery, if any, counsel for
the Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated and related actions referred to
in subparagraphs (h), (i) and (k) hereof, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by Publishing and the
Guarantor in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters.
(h) At the Closing Date, Southam Inc. shall qualify as a Subsidiary as
defined in the Senior Subordinated Indenture.
SECTION 6. Indemnification. (a) Publishing and the Guarantor agree,
jointly and severally, to indemnify and hold harmless the Underwriters and each
person, if any, who controls the Underwriters within the meaning of Section 15
of the 1933 Act to the extent and in the manner set forth in clauses (i), (ii)
and (iii) below:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the information
70
29
deemed to be part of the Registration Statement pursuant to Rule 430A of the
1933 Act Regulations, if applicable, and any information contained in a Rule
462(b) Registration Statement or any amendments thereto, or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of Publishing and the Guarantor; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel chosen
by the Underwriters, reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
(i) and (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to Publishing or the
Guarantor by the Underwriters expressly for use in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto)[; and the parties agree
71
30
that the statements set forth in the last paragraph on the cover page, the
legends on the inside cover page, and the statements in the second and fourth
paragraphs (except for the first sentence of the fourth paragraph) under the
caption "Underwriting" in the Prospectus constitute the only information so
furnished].
(b) Each Underwriter severally agrees to indemnify and hold harmless
Publishing and the Guarantor, their directors, each of their officers who
signed the Registration Statement, and each person, if any, who controls
Publishing or the Guarantor within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions made in the Registration Statement (or amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to Publishing or the Guarantor by the Underwriters expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) [and set
forth in the last paragraph on the cover page, the stabilization legends on the
inside cover page, and the statements in the second and fourth paragraph
(except for the first sentence of the fourth paragraph) under the caption
"Underwriting" in the Prospectus].
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
72
31
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which an indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, Publishing and the Guarantor
on the one hand and the Underwriters on the other hand shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity incurred by Publishing and the Guarantor on the
one hand and the Underwriters on the other hand, as incurred, in such
proportions that (a) the Underwriters are responsible for that portion
represented by the percentage that the underwriting commission appearing on the
cover page of the Prospectus bears to the aggregate stated principal amount
appearing thereon, and (b) Publishing and the Guarantor are responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls the Underwriters within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Underwriters, and each
director of each of Publishing and the Guarantor, each officer of Publishing or
the Guarantor who signed the Registration Statement, and each person, if any,
who controls Publishing or the Guarantor within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as Publishing or the
Guarantor.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement and
the Price Determination Agreement, or contained in certificates of officers of
Publishing or the Guarantor submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriters or controlling person, or by or on behalf of
Publishing or the Guarantor, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement. (a) The Underwriters may terminate
this Agreement by notice to Publishing or the Guarantor at any time at or prior
to the Closing Date (i) if there has been, since the date of this Agreement or
since the respective date as of which information is given in the Prospectus,
any material adverse
73
32
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of Publishing, the Guarantor and their
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Underwriters, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Stock of the Guarantor has been suspended by the Commission, or if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by
either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities. Notice of such termination may be given by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
As used in this Section 10(a), the term "Prospectus" means the Prospectus in
the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4. Notwithstanding any such termination, the provisions
of Sections 6 and 7 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Date to purchase the Securities that
it or they are obligated to purchase pursuant to this Agreement (the "Defaulted
Securities"), you shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms set forth
in this Agreement; if, however, you have not completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities, the nondefaulting Underwriters
shall be obligated to purchase the full amount thereof in the
74
33
proportions that their respective Securities underwriting obligation
proportions bear to the underwriting obligation proportions of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities, this Agreement shall terminate without
liability on the part of any nondefaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriters" includes
any person substituted for an Underwriter under this Section 10.
SECTION 11. Default by Publishing. If Publishing shall fail at the Closing
Date or at the Date of Delivery to sell and deliver the number of Securities
which it is obligated to sell hereunder, then this Agreement shall terminate
without any liability on the part of any non-defaulting party.
No action taken pursuant to this Section shall relieve Publishing from
liability, if any, in respect of such default.
SECTION 12. Notices. Unless otherwise specifically indicated herein, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to Xxxxxxx
Xxxxx at Xxxxxxx Xxxxx World Headquarters, North Tower, World Financial Center,
New York, New York 10281, attention of Syndicate Operations; notices to
Publishing shall be directed to it at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, attention of President or Secretary; and notices to the
Guarantor shall be directed to it at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, attention of President or Secretary.
75
34
SECTION 13. Parties. This Agreement and the Price Determination Agreement
shall each inure to the benefit of and be binding upon the Underwriters and
Publishing and the Guarantor and their respective successors, heirs and legal
representatives. Nothing expressed or mentioned in this Agreement or the Price
Determination Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and Publishing and the
Guarantor and their respective successors, heirs and legal representatives, and
the controlling persons and officers and directors referred to in Sections 6
and 7 hereof and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or the Price
Determination Agreement or any provision herein or therein contained. This
Agreement and the Price Determination Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters, Publishing and the Guarantor and their respective
successors, heirs and legal representatives and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from the Underwriters shall be deemed to be a successor by reason merely of
such purchase.
SECTION 14. Governing Law and Time. This Agreement and the Price
Determination Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time.
76
35
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to Publishing and the Guarantor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, Publishing and the Guarantor in accordance
with its terms.
Very truly yours,
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
by
_____________________________
X. X. Xxxxxxxx
Vice President, Treasury and
Finance
XXXXXXXXX INTERNATIONAL INC.
by
____________________________
X. X. Xxxxxxxx
Vice President, Treasury and
Finance
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
TORONTO DOMINION SECURITIES (USA) INC.
BEAR XXXXXXX & CO. INC.
CIBC WOOD GUNDY SECURITIES CORP.
77
36
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
by _______________________
78
Exhibit A
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
(a Delaware corporation)
XXXXXXXXX INTERNATIONAL INC.
(a Delaware corporation)
$___________
__% Senior Subordinated Notes due 2007
PRICE DETERMINATION AGREEMENT
__________, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION
TORONTO DOMINION SECURITIES (USA) INC.
BEAR XXXXXXX & CO. INC.
CIBC WOOD GUNDY SECURITIES INC.
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated __________, 1997 (the
"Purchase Agreement") among Xxxxxxxxx International Publishing Inc., a Delaware
corporation ("Publishing"), Xxxxxxxxx International Inc. (the
79
2
"Guarantor") and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Toronto
Dominion Securities (USA) Inc., Bear Xxxxxxx & Co. Inc. and CIBC Wood Gundy
Securities Corp. (the "Underwriters"). The Purchase Agreement provides for the
purchase by the Underwriters from Publishing, subject to the terms and
conditions set forth therein, of $___________ aggregate principal amount of
Publishing's __% Senior Subordinated Notes due 2007 (the "Securities"). This
Agreement is the Price Determination Agreement referred to in the Purchase
Agreement.
Pursuant to Section 2 of the Purchase Agreement, the undersigned agrees with
the Underwriters as follows:
1. The initial public offering price of the Securities shall be 100% of
the aggregate stated principal amount thereof, plus accrued interest from
__________, 1997 to the Closing Time.
2. The purchase price of the Securities to be paid by the several
Underwriters shall be __% of the aggregate stated principal amount thereof,
plus accrued interest from February 1, 1996 to the Closing Time.
3. The interest rate to be borne by the Securities shall be __% per
annum.
4. The Securities will mature on __________, 2007.
5. The optional redemption prices (to be supplied on page __ of the
Prospectus (and correspondingly in the Indenture)) shall be equal to the
percentage of the principal amount set forth below if redeemed during the
12-month period beginning __________ for the years indicated:
Redemption
Year Price
____ _______%
____ _______%
____ _______%
and thereafter at 100% of the principal amount, together in the case of any
such redemption with accrued and unpaid interest to the redemption date.
Publishing and the Guarantor represent and warrant to each of the
Underwriters that the representations and warranties of Publishing and the
Guarantor set forth in Section 1(a) of the Purchase Agreement are accurate as
though expressly made at and as of the date hereof.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to Publishing and the Guarantor a counterpart hereof,
whereupon this instrument along with all counterparts and together with the
Purchase Agreement shall be a binding agreement among the Underwriters and
Publishing and the Guarantor in accordance with its terms and the terms of the
Purchase Agreement.
Very truly yours,
XXXXXXXXX INTERNATIONAL
PUBLISHING INC.
By ____________________________
X. X. Xxxxxxxx
Vice President, Treasury and
Finance
XXXXXXXXX INTERNATIONAL INC.
By ____________________________
X. X. Xxxxxxxx
Vice President, Treasury and
Finance
80
3
Confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
TORONTO DOMINION SECURITIES (USA) INC.
BEAR XXXXXXX & CO. INC.
CIBC WOOD GUNDY SECURITIES CORP.
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By ____________________________
81
SCHEDULE I
Principal Amount
of Securities
Underwriters to Be Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . . . . . $___________
Donaldson, Lufkin, Xxxxxxxx
Securities Corporation . . . . . . . . . . . . . . . . . . . . . ___________
Toronto Dominion Securities
(USA) Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . ___________
Bear Xxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . . . . . ___________
CIBC Wood Gundy Securities Corp.. . . . . . . . . . . . . . . . . ___________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $===========
82
SCHEDULE II
Significant Subsidiaries of Xxxxxxxxx International Inc.
and Xxxxxxxxx International Publishing Inc.
