XXXXXXXXX-XXXX COMPANY DEBT SECURITIES
UNDERWRITING AGREEMENT STANDARD PROVISIONS
November 19, 1997
From time to time Xxxxxxxxx-Xxxx Company (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) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (the
Securities so specified being referred to herein as the "Designated
Securities").
1. The terms and rights of the issuance of the Designated
Securities shall be specified in Schedule I to the applicable Pricing
Agreement and in or pursuant to the indenture (the "Indenture") identified in
such Pricing Agreement. Particular sales of Designated Securities may be
made from time to time to the Underwriters of such Securities, for whom the
firm or firms designated as representatives of the Underwriters of such
Securities in the Pricing Agreement relating thereto will act as
representative (the "Representative"). The term "Representative" also refers
to Underwriters who act without any firm being designated as their
representative. These Underwriting Agreement Standard Provisions 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 the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any 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 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 telegraphic communications or any other rapid transmission
device designated to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement in respect of the Securities and more
particularly described in the applicable Pricing Agreement has been
filed with the Securities and Exchange Commission (the "Commission") in
the form heretofore delivered or to be delivered to the Representative,
and such registration statement in such form 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 (any
preliminary prospectus included in such registration statement being
hereinafter called a "Preliminary Prospectus"); 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; "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 fifteenth 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, as amended (the "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 Act or, if the date of
the Pricing Agreement is after the fifteenth 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 incorporated by reference therein, is
hereinafter referred to as the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and incorporated therein by reference);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or in any amendments or
supplements thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall apply only to documents so filed and
incorporated by reference during the period that a prospectus relating
to the Designated Securities is required to be delivered in connection
with sales of such Designated Securities (such period being hereinafter
sometimes referred to as the "prospectus delivery period"); and provided
further, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through the Representative expressly for use in the Prospectus;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects
to the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder, and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any supplement thereto, 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; provided,
however, that this representation and warranty shall apply only to
amendments or supplements filed or made during the prospectus delivery
period; and provided further, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representative expressly for use
in the Prospectus;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change or any development involving a prospective
material adverse change in or affecting the business and operations,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business
under the laws of each other jurisdiction in which the nature of the
business it transacts or the properties it owns requires such
qualification except where such failures to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(f) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and duly
authenticated by the Trustee in accordance with the Indenture, such
Designated Securities will have been duly executed, issued and delivered
and will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; the Indenture, has
been duly authorized by the Company and is duly qualified under the
Trust Indenture Act and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally
and to general equity principles; this Agreement has been duly
authorized, executed and delivered by the Company; and the Securities,
the Designated Securities, the Indenture and this Agreement conform in
all material respects to the descriptions thereof in the Prospectus;
(g) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture and this Agreement, and the consummation of
the transactions herein and therein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws of the Company or any statute,
order, rule or regulation (except for state securities or Blue Sky laws,
rules and regulations, as to which the Company makes no representation)
of any court or governmental agency or body having jurisdiction over the
Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the Company of the
other transactions contemplated by the applicable Pricing Agreement or
the Indenture except such as have been, or will have been prior to the
Time of Delivery (as defined in Section 4 hereof), obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations and qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters; and
(h) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the best
of the Company's knowledge, threatened to which the Company or any of
its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which individually or in the
aggregate have a reasonable possibility of having a material adverse
effect on the consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole.
3. Upon the execution of the applicable Pricing Agreement and the
authorization by the Representative of the release of the Designated
Securities, the several Underwriters propose to offer such Securities for
sale upon the terms and conditions set forth in the Prospectus.
4. Designated Securities to be purchased by each Underwriter in
such authorized denominations and registered in such names as the
Representative may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representative for the accounts of the Underwriters, against payment by such
Underwriter or on its behalf of the purchase price therefor in the manner and
in the funds specified in such Pricing Agreement, all at the place and time
and date specified in such Pricing Agreement or at such other place and time
and date as the Representative and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Designated Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form not
disapproved by the Representative and to file such Prospectus with the
Commission (i) pursuant to Rule 424(b)(1) (or, if applicable and if
consented to by the Representatives, pursuant to Rule 424(b)(4)) not
later than the Commission's close of business on the earlier of (A) the
second business day following the date of the applicable Pricing
Agreement or (B) the fifteenth business day after the Effective Date, or
(ii) if the date of the applicable Pricing Agreement is after the
fifteenth business day after the Effective Date, pursuant to Rule
424(b)(2) (or, if applicable and if consented to by the Representatives,
pursuant to Rule 424(b)(5)) not later than the second business day
following the date of the applicable Pricing Agreement; the Company will
advise you promptly of any such filing pursuant to Rule 424(b); to
advise the Representative promptly of any amendment or supplement to the
Registration Statement or Prospectus after such relevant Time of
Delivery and during the prospectus delivery period and furnish the
Representative with copies thereof; 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 Exchange Act subsequent to the date of the Prospectus and
during the prospectus delivery period; and during such same period to
advise the Representative, 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 Designated Securities, of the
suspension of the qualification of such Designated 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 Designated
Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representative may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as the Representative may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of such
Prospectus in connection with the offering or sale of the Designated
Securities and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representative and upon the
request of the Representative to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representative may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of such Designated Securities
at any time nine months or more after the time of issue of the
Prospectus, upon the request of the Representative but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many
copies as the Representative may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158); and
(e) During the period beginning from the date of the applicable
Pricing Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions for the Designated Securities, as
notified to the Company by the Representative and (ii) the Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which mature more than one year after
such Time of Delivery, without the prior written consent of the
Representative.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Designated Securities under the Act
and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements (except as expressly provided in
the last clause of Section 5(c) hereof) thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing or producing any Agreement among Underwriters, this Agreement,
any Pricing Agreement, any Indenture, any Blue Sky survey and any other
documents in connection with the offering, purchase, sale and delivery of the
Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) any fees
charged by securities rating services for rating the Designated Securities;
(v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Designated Securities; (vi) the cost of preparing the Designated Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and
the fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Designated Securities; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 5(c), Section 8
and Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with
any offers they may make.
7. The Representative shall have the right to terminate the
Pricing Agreement, in its sole discretion, due to any inaccuracy in the
representations and warranties and other statements of the Company herein, at
and as of the Time of Delivery, the nonperformance by the Company of any of
its obligations hereunder to be performed, and the nonperformance of the the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) of the Agreement; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with;
(b) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters,
shall have furnished to the Representative such opinion or opinions,
dated the Time of Delivery, with respect to the incorporation of the
Company, the validity of the Indenture, the Designated Securities, the
Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Representative 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;
(c) Xxxxxxxx Xxxxxxxxx, Esq., Vice President and General Counsel
of the Company, shall have furnished to the Representative her written
opinion, dated the Time of Delivery, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of
the State of New Jersey, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification except where such failures to be so qualified or be
in good standing would not, individually or in the aggregate, have
a material adverse effect on the Company and its subsidiaries taken
as a whole (such counsel being entitled to rely in respect of the
opinion in this clause upon certificates of state officials,
provided that such counsel shall state that she believes that both
the Representative and she are justified in relying upon such
certificates);
(iii) To the best of such counsel's knowledge there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, other than as
set forth in the Prospectus and other than litigation incident to
the kind of business conducted by the Company and its subsidiaries
which individually and in the aggregate is not material to the
Company and its subsidiaries taken as a whole; and to the best of
such counsel's knowledge no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, subject to bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Designated Securities and the
Indenture conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Company pursuant to the terms of,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument which is material to the Company and its
subsidiaries taken as a whole and is known to such counsel to which
the Company is a party or by which the Company is bound or to which
any of the property or assets of the Company or any of its
significant subsidiaries is subject, nor will such action result in
any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws, as amended, of the
Company or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or any such regulatory
authority or other governmental agency or body is required for the
issue and sale of the Designated Securities or the consummation of
the other transactions contemplated by this Agreement or such
Pricing Agreement or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(viii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules 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 Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of
such documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, in the case of other documents which were filed
under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents
were so filed, not misleading; and
(ix) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the
Designated Securities (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder; such counsel has no reason to believe
that, as of the effective date of the Registration Statement,
either the Registration Statement or the Prospectus (or, as of its
date, any further amendment or supplement thereto made by the
Company prior to the Time of Delivery) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of the Time of Delivery, either
the Registration Statement or the Prospectus (or any such further
amendment or supplement thereto) contains an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and such counsel does not know of any contracts or
other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) The Trustee shall have furnished to the Representative a
certificate, dated the Time of Delivery, as to its due authorization,
execution and delivery of the Indenture and its due authentication of
the Designated Securities;
(e) At the Time of Delivery, the independent accountants who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
shall have furnished to the Representative a letter, dated the Time of
Delivery, of the type described in the American Institute of Certified
Public Accountants' Statement on Auditing Standards No. 72 covering such
matters as the Representative may reasonably request and in form and
substance satisfactory to the Representative;
(f) Since the effective date of the Registration Statement (or any
post-effective amendment thereto) no event shall have occurred which
should have been set forth in an amendment to the Registration Statement
or a supplement to the Prospectus but which has not been so set forth,
and since the respective dates as of which information is given in the
Prospectus there shall not have been any change or any development
involving a prospective change in or affecting the business and
operations, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which is in the reasonable judgment of the Representative so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus;
(g) Subsequent to the date of the applicable Pricing Agreement
there shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York
Stock Exchange, Inc.; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak or material escalation of hostilities
involving the United States or the declaration, on or after the date
hereof, by the United States of a national emergency or war if the
effect of any such event specified in this clause (iii) in the
reasonable judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus;
(h) The Company shall have furnished or caused to be furnished to
the Representative at the Time of Delivery a certificate or certificates
of officers of the Company as to the accuracy of the representations and
warranties of the Company herein at and as of the Time of Delivery, as
to the performance by the Company of all of its obligations hereunder to
be performed at or prior to the Time of Delivery, and as to the matters
set forth in subsections (a) and (f) of this Section; and
(i) Subsequent to the execution of the applicable Pricing
Agreement, there shall not have been any decrease in the ratings of any
of the Company's debt securities by Xxxxx'x Investors Service, Inc. or
Standard & Poor's Corporation.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus or any other prospectus relating to the Designated
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus or any other prospectus relating to
the Designated Securities, or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative expressly for use in
the Prospectus relating to such Designated Securities; provided further,
however, that the foregoing indemnity with respect to preliminary
prospectuses shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Designated Securities if such untrue statement or omission made in any
preliminary prospectus is eliminated or remedied in the Prospectus relating
to such Securities and if a copy of the Prospectus relating to such
Securities (excluding documents incorporated by reference) has not been sent
or given to such person at or prior to the written confirmation of the sale
of such Securities to such person.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus or any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus or any other prospectus relating to the Designated
Securities, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representative expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or
claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party, provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have been advised by its counsel that representation of such
indemnified party and the indemnifying party by the same counsel would be
inappropriate (whether or not such representation by the same counsel has
been proposed) under applicable standards of professional conduct due to
actual or potential differing interests or defenses between them, the
indemnified party or parties shall have the right to select separate counsel
or participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel, approved by the
Representative in the case of paragraph (a) of this Section 8, representing
the indemnified parties under such paragraph (a) who are parties to such
action).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Designated Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d)
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 which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
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 subsection (d), 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 which 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with
respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligations to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement, the Representative may in its discretion arrange for any
Underwriter or Underwriters or another party or other parties to purchase
such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representative
does not arrange for the purchase of such Designated Securities, then the
Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to the
Representative to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the Representative
notifies the Company that it has so arranged for the purchase of such
Designated Securities, or the Company notifies the Representative that it has
so arranged for the purchase of such Designated Securities, the
Representative or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement
or the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in the opinion of the Representative may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person
had originally been a party to the Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangement for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representative and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-tenth of the aggregate principal amount of
all the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase hereunder
and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the principal amount of such Designated Securities
which such Underwriter agreed to purchase hereunder) of the Designated
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representative and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-tenth of the aggregate principal amount of Designated Securities,
or if the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
the Company, or any officer or director or controlling person of the Company,
and shall survive delivery of and payment for the Designated Securities.
11. If the applicable Pricing Agreement shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Designated Securities except
as provided in Section 6 and Section 8 hereof; but if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representative for all out-of-pocket expenses approved in writing by the
Representative, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representative shall act on
behalf of each of the 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 the Representative.
All statements, requests, notices and agreements hereunder shall be
in writing or by facsimile, and if to the Underwriters shall be sufficient in
all respects if delivered or sent by registered mail to the address of the
Representative as set forth in the applicable Pricing Agreement; and if to
the Company shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Company set forth in the Registration
Statement, Attention: Vice President and Treasurer, with a copy to: Vice
President and General Counsel; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or facsimile constituting such Questionnaire,
which address has been supplied to the Company by the Representative.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Section 8 and Section 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence in connection with each Pricing
Agreement.
15. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
made and to be performed therein.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto 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
FORM OF PRICING AGREEMENT
INSERT NAME ,
As Representatives of the several
Underwriters named in Schedule I hereto,
Insert Address
_____________, 199__
Dear Sirs:
Xxxxxxxxx-Xxxx Company (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. 333-37019) (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").
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 Section 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 Section 12 of the Underwriting Agreement and the
address of the Representatives referred to in such Section 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 you is now proposed to 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 between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request, but
without warranty on the part of the Representatives as to the authority of
the signers thereof.
Very truly yours,
XXXXXXXXX-XXXX COMPANY
By:_________________________
By:_________________________
Accepted as of the date hereof:
Insert Name
By:______________________
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- ---------------------
Names of Underwriters. . $
__________
Total. . . . . . . . . . $_________
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes] [due]
AGGREGATE PRINCIPAL AMOUNT:
[U.S.] $
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest, if any, 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 ]
METHOD AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[same day] [next day] funds; [certificated] [book-entry] form
INDENTURE:
Indenture, dated as of August 1, 1986, as supplemented, between the Company
and The Bank of New York, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may 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 price (expressed in percentages of principal amount).]
If [redeemed on or before , %, and if redeemed during
the 12-month period beginning
Redemption
Year 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 make-whole provision
mandatory redemption upon occurrence of certain events or redemption for
changes in tax law.]
[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].]
TIME OF DELIVERY:
CLOSING LOCATION:
NAME AND ADDRESSES OF REPRESENTATIVE:
Designated Representative:
Address for Notices, etc.:
[OTHER TERMS] :
