Exhibit 1.1
XXXXX XXXXXXXX U.S.A., INC.
DEBT SECURITIES
XXXXX XXXXXXXX CORPORATION
GUARANTOR
Form of Underwriting Agreement Standard Provisions
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_______, 1998
From time to time, Xxxxx Xxxxxxxx U.S.A., Inc., a Delaware corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"). The Designated Securities shall be
guaranteed by Xxxxx Xxxxxxxx Corporation (the "Guarantor") pursuant to a
Guarantee (the "Guarantee") attached to the Designated Securities.
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the Indenture, dated as of __________ ____, 1998, between the
Company, the Guarantor and The Chase Manhattan Bank, as Trustee (as it may be
amended or supplemented from time to time, the "Indenture").
1. Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase any of the Securities. The obligation of
the Company to issue and sell any of the Securities and the obligation of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of
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such Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telecopied communications. The obligations
of the Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company and the Guarantor represent and warrant jointly and severally
to each of the Underwriters of Designated Securities under the Pricing Agreement
relating to such Designated Securities that:
(a) A registration statement on Form S-3 relating to the Securities and
the Guarantees and more particularly described in the applicable Pricing
Agreement has been filed with the Securities and Exchange Commission (the
"Commission") and has been declared effective by the Commission and no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or threatened
by the Commission. If any post-effective amendment to such registration
statement has been filed with the Commission prior to the date of the
applicable Pricing Agreement, the most recent such amendment has been
declared effective by the Commission. For purposes of this Agreement,
"Effective Date" means the date as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was declared
effective by the Commission. Such registration statement, as amended at
the Effective Date, including all material incorporated by reference
therein and, if the date of the Pricing Agreement is on or before the fifth
business day after the Effective Date, including all information deemed to
be a part thereof as of the Effective Date pursuant to paragraph (b) of
Rule 430A under the Securities Act of 1933, amended (the "Securities Act"),
is hereinafter referred to as the "Registration Statement," and the form of
prospectus relating to the Designated Securities, as first filed pursuant
to paragraph (1) or (4) of Rule 424(b) ("Rule 424(b)") under the Securities
Act or, if the date of the Pricing Agreement is after the fifth business
day after the Effective Date, pursuant to Rule 424(b)(2) or (5), as such
form of prospectus may be supplemented as contemplated by Section 1 to
reflect the terms of the Designated Securities and the terms of offering
thereof, including all documents
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incorporated by reference therein, is hereinafter referred to as the
"Prospectus."
(b) Except for statements in such documents which do not constitute
part of the Registration Statement or the Prospectus pursuant to Rule 412,
and after substituting therefor any statements modifying or superseding
such excluded statements, on the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Securities Act, the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules and
regulations of the Commission ("Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of the applicable Pricing Agreement, and at
the time of filing of the Prospectus pursuant to Rule 424(b) and on the
Closing Date, the Prospectus will conform in all respects to the
requirements of the Securities Act, the Trust Indenture Act and the Rules
and Regulations, and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that the foregoing does
not apply to statements in or omissions from any of such documents based
upon written information furnished to the Company in writing by or on
behalf of any Underwriter through the Representatives expressly for use
therein or to the part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee.
(c) The Guarantor, the Company and each of the corporations of which a
majority of the outstanding voting equity securities are owned, directly or
indirectly, by the Company (the "Subsidiaries") which would be "Significant
Subsidiaries" as such term is defined in Regulation S-X promulgated by the
Commission, as in effect on the date of this Agreement (the "Significant
Subsidiaries") have been duly incorporated and are validly existing as
corporations in good standing under the laws their respective jurisdictions
of incorporation, have the corporate power and authority to own their
property and to conduct their business as described in the Prospectus and
are duly qualified as a foreign corporation to transact business and are in
good standing in each jurisdiction in which the conduct of their respective
businesses or their ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Guarantor and its Subsidiaries, taken as a whole.
(d) This Agreement and such Pricing Agreement has been duly authorized,
executed and delivered by the Guarantor and the Company.
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(e) The execution and delivery by the Guarantor and the Company of, and
the performance by each of the Guarantor and the Company of its obligations
under, this Agreement, such Pricing Agreement, the Indenture, the
Designated Securities and the Guarantees will not contravene any provision
of applicable law or the memorandum of association or certificate of
incorporation of the Guarantor or the Company or any agreement or other
instrument binding upon the Guarantor or Company or any of its Significant
Subsidiaries that is material to the Guarantor and its Subsidiaries, taken
as a whole, or any judgment, order, treaty or decree of any governmental
body, agency or court having jurisdiction over the Guarantor or the Company
or any Significant Subsidiary, and no consent, approval, authorization or
order of or qualification with any governmental body or agency is required
for the performance by each of the Guarantor and the Company of its
obligations under this Agreement and such Pricing Agreement, except such as
have been obtained or may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Designated
Securities.
(f) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
business, financial position, stockholders' equity or results of operations
of the Guarantor and its Subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(g) There are no legal or governmental proceedings pending or, to the
knowledge of the Guarantor and the Company, threatened to which the
Guarantor or the Company or any of its Subsidiaries is a party or to which
any of the properties of the Guarantor or the Company or any of its
Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(h) Each of the Guarantor and the Company and its Significant
Subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file would not have a material adverse effect
on the Guarantor and its Subsidiaries, taken as a whole.
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(i) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the rules and regulations
of the Commission thereunder.
(j) The Company, directly or through its Subsidiaries, is the owner of
record for the uses described in the Prospectus of the "XXXXX XXXXXXXX"
name, the Xxxxx Xxxxxxxx red, white and blue flag logo and the Xxxxx
Xxxxxxxx crest trademarks (the "Trademarks") in the United States and each
jurisdiction in which a material portion of its business is conducted and
neither the Company nor any of its Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, would reasonably be
expected to result in any material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(k) Each of the Guarantor and the Company has complied to the extent
necessary with all provisions of Florida H.B. 1771 and Section 517.075,
Florida Statutes (Chapter 93-198 Laws of Florida).
(l) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized by each of the Guarantor and the Company and,
when executed and delivered by the Guarantor, the Company and the Trustee,
will constitute a valid and binding agreement of each of the Guarantor and
the Company, enforceable against each of the Company and the Guarantor in
accordance with its terms (i) except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization or similar
laws relating to or affecting creditors' rights generally and (ii) subject
to the application of general principles of equity (regardless of whether
enforcement is considered in proceedings at law or in equity).
(m) The Designated Securities have been duly authorized and, when
executed and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement and the Pricing Agreement relating to such
Designated Securities (and assuming due authentication by the Trustee) will
be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms (i)
except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or
affecting creditors' rights generally and (ii) subject to the application
of general principles of equity (regardless of whether enforcement is
considered in proceedings at law or in equity).
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(n) The Guarantees have been duly authorized and, when the Designated
Securities (with the Guarantees endorsed thereon) are executed and
delivered to the Underwriters and paid for by the Underwriters in
accordance with the terms of this Agreement and the Pricing Agreement
relating thereto, the Guarantees will be valid and binding obligations of
the Guarantor, enforceable in accordance with their (i) terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
creditors' rights generally and (ii) subject to the application of general
principles of equity (regardless of whether enforcement is considered in
proceedings at law or in equity).
(o) Neither the Guarantor nor the Company is an "investment company" or
an entity "controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities upon the terms and conditions set forth in the Prospectus as amended
or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in definitive form or temporary form, and
registered in such names and in such denominations as the Representatives shall
request in writing not later than two full business days prior to the Closing
Date, shall be delivered to the Representatives on the Closing Date for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Designated Securities to the Underwriters
duly paid, against payment by such Underwriter or on its behalf of the purchase
price therefor by wire transfer of immediately available funds to an account
specified in writing by the Company, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives designate in writing (such time and date being referred to
as the "Closing Date").
5. The several obligations of the Underwriters of Designated Securities under
the Pricing Agreement relating to such Designated Securities are subject to the
following conditions:
(a) Subsequent to the execution and delivery of such Pricing Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any ratings
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watch with negative implications, in the rating accorded any of the
Company's securities by any of Standard & Poor's Rating Service,
Xxxxx'x Investors Service, Inc., Duff & Xxxxxx Inc. or Fitch Investors
Service, Inc.; and
(ii) there shall not have occurred any material adverse change, or
any development involving a prospective material adverse change, in
the business, financial position, stockholders' equity or results of
operations of the Guarantor and its Subsidiaries, taken as a whole,
since the respective dates of which information is given in the
Prospectus that makes it, in the Representatives' reasonable judgment,
impracticable to market the Designated Securities on the terms and in
the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect that the representations and warranties of the
Company contained in this Agreement and such Pricing Agreement are true and
correct in all material respects as of the Closing Date and that the
Company has complied in all material respects with all of the agreements on
its part to be performed hereunder on or before the Closing Date. The
officer signing and delivering such certificate may rely upon the best of
his knowledge as to proceedings threatened.
(c) The Representatives shall have received on the Closing Date an
opinion of Wachtell, Lipton, Xxxxx & Xxxx, counsel to the Company and U.S.
counsel to the Guarantor, dated the Closing Date, to the effect that:
i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware;
ii) The Company has full corporate power and authority to enter
into this Agreement and such Pricing Agreement and to sell, transfer
and deliver the Designated Securities hereunder, and the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement and such Pricing Agreement will not
contravene any provision of the Certificate of Incorporation of the
Company;
iii) To the best of such counsel's knowledge, without independent
investigation other than inquiries of the Chief Executive Officer, the
Chief Operating Officer, an Executive Vice President and the Vice
President-Corporate Affairs (the "Responsible Officers"), including
any documentation received by
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such counsel in response to such inquiries, and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending or threatened to which the Guarantor or any of its
Subsidiaries is a party or of which any property or assets of the
Guarantor or any of its Subsidiaries is the subject that are required
to be described in the Registration Statement or the Prospectus and
are not so described;
iv) Such counsel has been advised by the staff of the Commission
that the Registration Statement was declared effective under the
Securities Act as of the date and time specified in the opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) under the Securities Act specified in such opinion on
the date specified therein and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act or proceedings therefor initiated
or threatened by the Commission;
v) The Designated Securities have been duly authorized, executed
and delivered by the Company and, when duly authenticated in
accordance with the terms of the Indenture and delivered and paid for
by the Underwriters in accordance with the Pricing Agreement, will
constitute valid and legally binding instruments of the Company
enforceable against the Company in accordance with their terms
entitled to the benefits provided by the Indenture, subject to the
effect of bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether
enforcement is considered in proceedings at law or in equity);
vi) Assuming that (1) the Guarantor is validly existing and in good
standing under the laws of the British Virgin Islands and has duly
authorized, executed and delivered the Guarantees in accordance with
its memorandum and articles of association, (2) execution, delivery
and performance by the Guarantor of the Guarantees do not violate the
laws of the British Virgin Islansd or any other applicable laws
(excepting the laws of the State of New York and the Federal laws of
the United States) and (3) execution, delivery and performance by the
Guarantor of the Guarantees do not constitute a breach or violation of
any agreement or instrument which is binding upon the Guarantor, the
Guarantees constitute the valid and legally binding obligations of the
Guarantor, enforceable against the Guarantor in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
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relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is considered in
proceedings at law or in equity);
vii) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding obligation,
enforceable against the Company in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally and to general equity principles (regardless of whether
enforcement is considered in proceedings at law or in equity); the
Indenture has been duly qualified under the Trust Indenture Act;
viii) Assuming that (1) the Guarantor is validly existing and in
good standing under the laws of the British Virgin Islands and has
duly authorized, executed and delivered the Indenture in accordance
with its memorandum and articles of association, (2) execution,
delivery and performance by the Guarantor of the Indenture does not
violate the laws of the British Virgin Islands or any other applicable
laws (excepting the laws of the State of New York and the Federal laws
of the United States) and (3) execution, delivery and performance by
the Guarantor of the Indenture does not constitute a breach or
violation of any agreement or instrument which is binding upon the
Guarantor, the Indenture constitutes the valid and legally binding
obligations of the Guarantor, enforceable against the Guarantor in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether enforcement is
considered in proceedings at law or in equity);
ix) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules and notes and other financial, accounting or
statistical data therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
x) The Designated Securities, the Guarantees and the Indenture
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented;
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xi) The Registration Statement, the Prospectus and any further
amendments or supplements thereto made by the Company prior to the
Closing Date (other than the financial statements and related
schedules and notes and other financial, accounting or statistical
data therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the
Securities Act and the rules promulgated thereunder;
xii) To the best of such counsel's knowledge, without independent
investigation other than inquiries of the Responsible Officers,
including any documentation received by such counsel in response to
such inquiries, there are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the rules and
regulations promulgated thereunder which have not been described or
filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by such rules and regulations;
xiii) The issue and sale of the Designated Securities being
delivered on the Closing Date by the Company, the issue of the
Guarantees being delivered on the Closing Date by the Guarantor and
the compliance by the Guarantor and the Company with all of the
provisions of the Designated Securities, the Guarantees, the
Indenture, this Agreement and such Pricing Agreement and the
consummation of the transactions contemplated hereby and thereby will
not result in any violation of any applicable U.S. or New York State
statute, order, rule or regulation in each case which, in such
counsel's experience, are normally applicable to transactions of the
type provided for in the Designated Securities, the Guarantees, the
Indenture, this Agreement and such Pricing Agreement, or, to such
counsel's knowledge, any agreement or other instrument binding upon
the Guarantor or any of its Subsidiaries that is material,
individually or in the aggregate, to the Guarantor and its
Subsidiaries, taken as a whole, which, after due inquiry, has been
expressly identified in writing (included in a list attached to this
opinion) to such counsel by the Guarantor or the Company or, to such
counsel's knowledge, any judgment, order, treaty or decree of any
federal or New York governmental body, agency or court having
jurisdiction over the Guarantor or the Company or any Subsidiary
which, after due inquiry, has been expressly identified in writing
(included in a list attached to this opinion) to such counsel by the
Guarantor or the Company, and no consent, approval, authorization or
order of or qualification with any
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U.S. or New York governmental body or agency is required for the
performance by each of the Guarantor and the Company of its
obligations under the Designated Securities, the Guarantees, the
Indenture, this Agreement and such Pricing Agreement, except in any of
the foregoing cases such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale
of the Designated Securities by the Underwriters and the securities
laws of any jurisdiction outside the United States in which the
Designated Securities are offered and sold, as to which such counsel
need express no opinion, and the federal securities laws, which are
addressed in subparagraph (v) hereof; and
xiv) This Agreement and such Pricing Agreement has been duly
authorized, executed and delivered by the Company.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that (x) such counsel has acted as U.S.
counsel to the Guarantor and the Company in connection with the preparation
of the Registration Statement, has participated in conferences with certain
officers of the Guarantor and the Company, the independent public
accountants of the Guarantor and the Company and other representatives of
the Guarantor and the Company and (y) based on the foregoing, no facts have
come to the attention of such counsel which lead them to believe that the
Registration Statement (except for financial statements and schedules and
notes and other financial, accounting or statistical data as to which such
counsel need express no belief), as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (except for financial
statements and schedules and notes and other financial, accounting or
statistical data as to which such counsel need express no belief), contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The foregoing opinion and statement may be qualified by a
statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and are without
independent verification.
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(d) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated the
Closing Date for such Designated Securities and Guarantees, with respect to
the incorporation of the Company, the validity of the Indenture, the
Designated Securities, the Guarantees, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
The opinion of Wachtell, Lipton, Xxxxx & Xxxx described in paragraph (c)
above shall be rendered to the Representatives at the request of the
Company and shall so state therein. Wachtell, Lipton, Xxxxx & Xxxx and
Xxxxxxx Xxxxxxx & Xxxxxxxx may state that, insofar as their opinions
involve factual matters, they have relied to the extent they deem proper
upon certificates of the Guarantor, the Company and any of its Subsidiaries
and certificates of public officials.
(e) The Representatives shall have received on the Closing Date an
opinion of Xxxxxx, Westwood & Riegels, British Virgin Islands counsel to
the Guarantor, dated the Closing Date, to the effect that:
i) The Guarantor has been duly incorporated and is validly existing
as a company limited by shares in good standing under the laws of the
British Virgin Islands, and has the corporate power and authority
necessary to own its properties and conduct its businesses;
ii) The Guarantor has full right, power and authority to enter into
this Agreement and such Pricing Agreement and to deliver the
Guarantees hereunder, and the execution and delivery by the Guarantor
of, and the performance by the Guarantor of its obligations under,
this Agreement and such Pricing Agreement will not contravene any
provision of the Memorandum of Association of the Guarantor;
iii) The Guarantees have been duly authorized, executed, issued and
delivered by the Guarantor and, upon payment and delivery of the
Designated Securities (with the Guarantees endorsed thereon) in
accordance with the Pricing Agreement, the Guarantees will constitute
valid and legally binding obligations of the Guarantor enforceable
against the Guarantor in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
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iv) The Indenture has been duly authorized, executed and delivered
by the Guarantor;
v) The Guarantees being delivered on the Closing Date by the
Company and the compliance by the Guarantor with all of the provisions
of the Guarantees, the Indenture, this Agreement and such Pricing
Agreement and the consummation of the transactions contemplated hereby
and thereby will not result in any violation of any applicable British
Virgin Islands statute, order, rule or regulation in each case which,
in such counsel's experience, are normally applicable to transactions
of the type provided for in the Guarantees, the Indenture, this
Agreement and such Pricing Agreement, or, to such counsel's knowledge,
any judgment, order, treaty or decree of any British Virgin Islands
governmental body, agency or court having jurisdiction over the
Guarantor or any Subsidiary which, after due inquiry, has been
expressly identified in writing (included in a list attached to this
opinion) to such counsel by the Guarantor, and no consent, approval,
authorization or order of or qualification with any British Virgin
Islands governmental body or agency is required for the performance by
the Guarantor of its obligations under the Guarantees, the Indenture,
this Agreement and such Pricing Agreement;
vi) This Agreement and such Pricing Agreement has been duly
authorized, executed and delivered by the Guarantor;
vii) The statements contained in the Prospectus under the caption
"Enforceability of Civil Liabilities and Related Matters" insofar as
they purport to constitute a description of the laws and regulations
of the British Virgin Islands, or its respective agencies, authorities
or other governmental or quasi-governmental bodies or conclusions of
British Virgin Islands law, constitutes an accurate description of
British Virgin Islands law in all material respects;
viii) The Guarantor has the power insofar as British Virgin Islands
law is concerned to submit, and pursuant to this Agreement has
legally, validly, effectively and irrevocably submitted, to the
jurisdiction of any federal or state court in the State of New York,
County of New York, and has the power to designate, appoint and
empower and pursuant to this Agreement has legally, validly,
effectively and irrevocably designated, appointed and empowered an
agent for service of process in any suit or proceeding based on or
arising under this Agreement or the Pricing Agreement in any federal
or state court in the State of
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New York, County of New York as provided in Paragraphs 10 and 12
hereof;
ix) Under the laws of the British Virgin Islands, the Underwriters
would be permitted to commence actions or proceedings in British
Virgin Islands courts of competent jurisdiction based upon this
Agreement or the Pricing Agreement, and such courts would accept
jurisdiction over any such action or proceeding and would give effect
to the choice of the internal laws of the State of New York to govern
this Agreement; and
x) Neither the Underwriters nor any holder of Designated Securities
will become subject to any income, franchise or other tax imposed by a
governmental authority of the British Virgin Islands solely by reason
of the transactions contemplated by the Designated Securities, the
Guarantees, the Indenture, this Agreement and the Pricing Agreement
and the execution, delivery and performance of the Designated
Securities, the Guarantees, the Indenture, this Agreement and the
Pricing Agreement, and the transactions contemplated hereby and
thereby will not require the payment of any registration charge or
stamp or similar tax imposed by any Governmental Authority of the
British Virgin Islands.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the laws of the British Virgin Islands.
(f) The Representatives shall have received, on the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to the Representatives, from Price
Waterhouse LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained and incorporated in the
Registration Statement and the Prospectus.
(g) The Guarantees shall be in full force and effect.
6. In further consideration of the agreements of the Underwriters herein
contained, the Guarantor and the Company jointly and severally covenant as
follows:
(a) To advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and to afford the
Representatives a reasonable opportunity to comment on any such proposed
amendment or supplement and not to file such proposed amendment or
supplement if the Representatives reasonably object other than an amendment
or supplement required to
15
comply with law; to file the Prospectus as amended and supplemented in
accordance with Rule 424(b) and to advise the Representatives promptly of
any such filing; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or become
effective or any supplement to the Prospectus or any amended Prospectus has
been filed, or mailed for filing, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish to the Representatives, without charge, three signed
copies of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as the
Representatives may reasonably request.
(c) If, during such period after the first date of the public offering
of the Designated Securities as in the opinion of the Representatives'
counsel the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses the Representatives will furnish to the Company) to
which Designated Securities may have been sold by the Representatives on
behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements
16
to the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To take such actions as the Representatives may reasonably request
to qualify the Designated Securities for offer and sale under the
securities or Blue Sky laws of such states as the Representatives shall
reasonably request and to pay all expenses (including reasonable fees and
disbursements of counsel) in connection with such qualification and in
connection with any review of the offering of the Designated Securities by
the National Association of Securities Dealers, Inc.; provided that the
--------
Company shall not be obligated so to qualify the Designated Securities if
such qualification requires it to subject itself to any material additional
tax liabilities, to file a general consent to service of process or to
register to qualify as a foreign corporation in any jurisdiction in which
it is not so registered or qualified.
(e) To make generally available to the Company's security holders and
to the Representatives as soon as practicable an earning statement covering
the twelve-month period from the later of the effective date of the
Registration Statement and the effective date of any post-effective date of
any post-effective amendment that satisfies the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) To pay or cause to be paid (i) all taxes, if any, on the transfer
and sale of the Designated Securities being delivered to the Underwriters
pursuant to this Agreement and the Pricing Agreement relating to such
Designated Securities and (ii) all costs and expenses incident to the
performance of the obligations of the Guarantor and the Company under this
Agreement and such Pricing Agreement, including, but not limited to, all
expenses incident to the delivery of the Designated Securities, the fees
and expenses of counsel and accountants for the Company, the costs and
expenses incident to the preparation, printing and filing of the
Registration Statement (including all exhibits thereto) and the Prospectus
and any amendments or supplements thereto, the expenses of qualifying the
Designated Securities under the securities or Blue Sky laws of various
jurisdictions (including reasonable fees and expenses of counsel to the
Underwriters related thereto), and the cost of furnishing to the
Underwriters the required copies of the Registration Statement and
Prospectus and any amendments or supplements thereto.
7. (a) The Guarantor and the Company agree, jointly and severally, to
indemnify and hold harmless each Underwriter and
17
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, subject to the provisions of the second following paragraph, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company or the Guarantor shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company or the Guarantor by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated Securities;
provided, however, that the foregoing indemnity agreement with respect to any
-------- -------
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Designated Securities, or any person controlling such Underwriter, if
a copy of the Prospectus (as then amended or supplemented if the Company or the
Guarantor shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required by
law so to have been delivered, at or prior to the written confirmation of the
sale of the Designated Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Guarantor, Company, the directors of the Company and the
Guarantor, the officers of the Company and the Guarantor who sign the
Registration Statement and each person, if any, who controls the Company or the
Guarantor within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such Underwriter, but only with reference to the information
furnished to the Company or the Guarantor in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified
18
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of Underwriters,
such firm shall be designated in writing by the Representatives. In the case of
any such separate firm for the Guarantor, the Company, such directors, officers
and control persons of the Guarantor and the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by clause (ii) of the second
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into in good faith more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) the
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is a party or is or has been threatened to have been made a
party and indemnity could reasonably have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from
19
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in the first or second
paragraph of this Paragraph 7 to an indemnified party is unavailable or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein (other than by reason of the exceptions set forth therein), then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Designated Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Guarantor and the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Designated Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Designated Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate public offering price of the
Designated Securities. The relative fault of the Guarantor and the Company on
the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Guarantor, the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Paragraph 7
are several in proportion to the respective number of Designated Securities they
have purchased hereunder, and not joint.
(e) The Guarantor, the Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Paragraph 7 were
determined by pro rata allocation (even if the Underwriters were treated as
--- ----
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding
20
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Paragraph 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Paragraph 7 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Paragraph 7 and the representations and warranties contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Guarantor or the Company, the officers or directors or any person
controlling the Guarantor or the Company and (iii) acceptance of and payment for
any of the Designated Securities.
8. Each Pricing Agreement shall be subject to termination by notice given by
the Representatives to the Guarantor and the Company, if (a) after the execution
and delivery of such Pricing Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Guarantor or the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the Representatives' reasonable
judgment, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event singly or together with any
other such event makes it, in the Representatives' reasonable judgment,
impracticable to market the Designated Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Designated Securities that it or they have agreed to purchase
hereunder on
21
such date, and the aggregate number of Designated Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of the Designated Securities
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Designated Securities set forth
opposite their respective names in Schedule I of the applicable Pricing
Agreement bears to the aggregate number of Designated Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Representatives may specify, to purchase the Designated
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the number
--------
of Designated Securities that any Underwriter has agreed to purchase pursuant to
Schedule I of the applicable Pricing Agreement be increased pursuant to this
Paragraph 9 by an amount in excess of one-ninth of such number of Designated
Securities without the written consent of such Underwriter. If, on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Designated
Securities under the Pricing Agreement relating to such Designated Securities
and the aggregate number of Designated Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Designated
Securities to be purchased on such date, and arrangements satisfactory to the
Representatives and the Guarantor and the Company for the purchase of such
Designated Securities are not made within 36 hours after such default, the
Pricing Agreement relating to such Designated Securities shall terminate without
liability on the part of any non-defaulting Underwriter or the Guarantor and the
Company. In any such case either the Representatives or the Guarantor or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement or such Pricing Agreement.
If any Pricing Agreement shall be terminated by the Underwriters of Designated
Securities under such Pricing Agreement because of any failure or refusal on the
part of the Guarantor or the Company to comply with the terms or to fulfill any
of the conditions of such Pricing Agreement, or if for any reason the Guarantor
or the Company shall be unable to perform its obligations under such Pricing
Agreement, the Guarantor and the Company will reimburse the Underwriters or such
Underwriters as have so terminated such Pricing Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with such Pricing Agreement or the Offering contemplated hereunder.
10. (a) Each of the parties hereto consents to the
22
jurisdiction of and venue in federal and state courts located in the Borough of
Manhattan, City and State of New York, over any suit, action or proceeding with
respect to this Agreement.
(b) This Agreement and each Pricing Agreement shall be construed in
accordance with the laws of the State of New York.
(c) The provisions of this Paragraph 10 shall survive the termination
of this Agreement or any Pricing Agreement, in whole or in part.
11. The Guarantor and the Company shall indemnify each Underwriter against
any loss incurred by it as a result of any judgment or order being given or made
against the Guarantor and the Company and expressed and paid in a currency (the
"Judgment Currency") other than U.S. Dollars and as a result of any variation as
between (i) the rate of exchange at which the U.S. dollar amount is converted
into the Judgment Currency for the purpose of such judgment or order and (ii)
the spot rate of exchange in New York, New York at which such Underwriter on the
date of payment of such judgment or order is able to purchase U.S. dollars with
the amount of the Judgment Currency actually received by such Underwriter. If
the U.S. dollars so purchased are greater than the amount originally due to such
Underwriter hereunder, such Underwriter agrees to pay to the Guarantor and the
Company an amount equal to the excess of the U.S. dollars so purchased over the
amount originally due to such Underwriter hereunder. The foregoing indemnities
shall constitute a separate and independent obligation of the Guarantor and the
Company or the Underwriters, as the case may be, and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, U.S. dollars.
The provisions of this Paragraph 11 shall survive any termination of this
Agreement or any Pricing Agreement, in whole or in part.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be sufficient in
all respects if delivered or sent by registered mail to Xxxxx Xxxxxxxx U.S.A.,
Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Executive
Officer; provided, however, that any notice to an Underwriter pursuant to
Paragraph 7(c) hereof shall be delivered or sent by registered mail to such
23
Underwriter at the address set forth in the Pricing Agreement.
The Guarantor hereby irrevocably and unconditionally designates and directs
the Company with offices on the date hereof at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as its agent to receive service of any and all process and
documents on its behalf in any legal action or proceeding referred to in
paragraph (a) of Paragraph 10 in the State of New York and agrees that service
upon such agent shall constitute valid and effective service upon the Guarantor
and that failure of the Company to give any notice of such service to such
parties shall not affect or impair in any way the validity of such service or of
any judgment rendered in any action or proceeding based thereon and (ii) agrees
to appoint, on terms and conditions satisfactory to the Representatives, a
successor agent to receive service of process on or prior to the termination for
any reason of the appointment of the Company (or any successor agent) as agent
to receive service of process.
The Guarantor hereby irrevocably and unconditionally agrees that service of
process in any such action or proceeding may also be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Company at its address set forth in the
Registration Statement.
13. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
---------------
ANNEX I
PRICING AGREEMENT
-----------------
[ INSERT NAME ],
As Representatives of the several
Underwriters named in Schedule I hereto,
[Insert Address]
____________, 199__
Dear Sirs:
Xxxxx Xxxxxxxx U.S.A., Inc. (the "Company") proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement Standard Provisions
filed as an exhibit to the Company's registration statement on Form S-3 (No.
333-48355/48355-01) (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). The Designated
Securities shall be guaranteed by Xxxxx Xxxxxxxx Corporation pursuant to a
Guarantee attached to the Designated Securities. Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
with respect to the Prospectus in Paragraph 2 of the Underwriting Agreement
shall be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein defined), and
also a representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Paragraph 12 of the Underwriting Agreement and the
address of the Representatives referred to in such Paragraph 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus,
as the case may be, relating to the Designated Securities, in the form
heretofore delivered to the Representatives is now proposed be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference,
the Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the principal amount of Designated Securities set
forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement among each of the Underwriters,
the Guarantor and the Company.
Very truly yours,
XXXXX XXXXXXXX U.S.A., INC.
BY:
-----------------------------------
XXXXX XXXXXXXX CORPORATION
BY:
-----------------------------------
Accepted as of the date hereof:
[ Insert Name ]
By:
-------------------------------------
On behalf of each of the Underwriters
SCHEDULE I
UNDERWRITER PRINCIPAL AMOUNT OF
----------- DESIGNATED SECURITIES
TO BE PURCHASED
---------------------
[Names of Underwriters............... $
------------
$
Total................................ ============
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
$
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and accrued
amortization, if any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus
accrued interest, if any, from to [and accrued
amortization, if any, from to ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[Federal/Immediately Available] funds
INDENTURE:
Indenture, dated as of , between the Company and The Chase
Manhattan Bank, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REGULAR RECORD DATES:
[months and dates]
REDEMPTION PROVISIONS:
[The Designated Securities may be redeemed upon certain changes in tax
law as specified in Section 1305 of the Indenture]
[No other provisions for redemption]
[The Designated Securities may also be redeemed, otherwise than through
the sinking fund, in whole or in part at the option of the Company, in
the amount of $ or an integral multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount).] If [redeemed on or
before , %, and if] redeemed during the 12-month period
beginning
YEAR REDEMPTION
---- PRICE
-----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at
the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire $ principal amount of Designated Securities on in each of the
years through at 100% of their principal amount plus accrued
interest] [, together with [cumulative] [noncumulative] redemptions at the
option of the Company to retire an additional $ principal amount of
Designated Securities in the years through at 100% of their principal
amount plus accrued interest].
[If Securities are extendable Debt Securities, insert --
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual interest
rate will be adjusted on , and to a rate not
less than % of the effective annual interest rate on U.S. Treasury
obligations with -year maturities as of the [insert date 15 days prior
to maturity date] prior to such [insert maturity date].]
[If Securities are Floating Rate Debt Securities, insert --
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each ,
and ] [to an annual rate of % above the average rate
for -year [month] [securities] [certificates of deposit] by
and [insert names of banks].] [and the annual interest
rate [thereafter] [from, through ] will be the
interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of Interest
Differential (the excess, if any, of (i) then current weekly average per
annum secondary market yield for -month certificates of deposit over
(ii) then current interest yield equivalent of the weekly average per
annum market discount rate for -month Treasury bills); from and
thereafter the rate will be the then current interest yield equivalent
plus % of Interest Differential].]
OTHER:
[If a Tax Section is contained in the Prospectus Supplement for the
Offering of Designated Securities -- Opinion of British Virgin Islands
counsel as to British Virgin Islands tax consequences, if applicable.]
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.: