EXHIBIT 1
UNDERWRITING AGREEMENT
----------------------
December 6, 1995
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
C/O MORGAN XXXXXXX & CO. INCORPORATED,
0000 XXXXXXXX,
XXX XXXX, XXX XXXX 00000.
Dear Sirs:
1. Introductory. From time to time Alco Standard Corporation, an Ohio
corporation (the "Company"), proposes to enter into one or more Terms Agreements
(individually "Terms Agreement" and collectively "Terms Agreements") in the form
of Exhibit A 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 firm or firms named in Schedule I to the
applicable Terms Agreement (each such firm is herein called an "Underwriter" and
such firms collectively are herein called "Underwriters" with respect to such
Terms Agreement and the securities specified therein) or pursuant to delayed
delivery contracts as hereinafter provided, certain of its debt securities
("Securities"), all as specified in such Terms Agreement (with respect to each
such Terms Agreement, such Securities are herein called "Purchased Securities").
Securities are herein designated as to be purchased by Underwriters or pursuant
to delayed delivery contracts by use of the terms "Underwriters" or "Contract,"
respectively. The terms and rights of any particular issuance of Purchased
Securities shall be as specified in the applicable Terms Agreement and in the
indenture (the "Indenture") identified in such Terms Agreement. Each Terms
Agreement shall constitute an agreement by the Company and each Underwriter to
be bound by all of the provisions of this Agreement.
2. Obligations of the Company and the Underwriters. Particular sales
of Purchased Securities may be made from time to time to the Underwriter or
Underwriters of such Purchased Securities (including one or more of you) for
whom the firm or firms designated as representatives in the Terms Agreement with
respect to such Purchased Securities may act as representatives (herein
collectively called "Representatives"). This Agreement shall not be construed as
an obligation of the Company to sell any of the Securities to the Underwriters
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 Terms Agreement with respect to the Purchased Securities
specified therein. Each Terms Agreement shall specify (i) the names of the
Underwriters of such Purchased Securities, (ii) the names of the Representatives
of such Underwriters, (iii) the aggregate principal amount of the Purchased
Securities and the principal amount
of such Purchased Securities to be purchased by each Underwriter, (iv) the
public offering price of such Purchased Securities, (v) the purchase price to
the Underwriters of such Purchased Securities, (vi) the place, time, date and
manner of delivery of such Purchased Securities and payment therefor and (vii)
whether any of the Purchased Securities may be sold by the Company to
institutional purchasers pursuant to delayed delivery contracts as hereinafter
provided ("Delayed Delivery Contracts") and, if so, the minimum principal amount
of such Purchased Securities that may be sold pursuant to any such Contract and
the maximum aggregate principal amount of such Purchased Securities that may be
sold pursuant to all such Contracts. The Terms Agreement shall also specify (to
the extent not set forth in the Indenture, registration statement and prospectus
with respect thereto) the terms of such Purchased Securities. A Terms 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 communication
by any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Terms Agreement shall be several and not joint.
3. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form-S-3 (No. 33-64177), including
a prospectus, relating to the Securities, has been filed with the
Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement (including the documents
incorporated by reference therein), as amended on the date of the Terms
Agreement, is hereinafter referred to as the "Registration Statement," and
the prospectus (including the documents incorporated by reference
therein), as supplemented on the date of the Terms Agreement (the
"Prospectus Supplement") to reflect, among other things, the terms of the
Purchased Securities and the terms of the offering thereof, is hereinafter
referred to as the "Prospectus." Any reference to the Registration
Statement or Prospectus as amended or supplemented shall be deemed to
include any documents filed after the effective date of the Registration
Statement or date of the Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and so
incorporated by reference.
(b) When each part of the registration statement relating to the
Securities became effective, such part and the prospectus included therein
contained all statements which were required to be stated therein in
accordance with the Securities Act of 1933 ("Act"), the Trust Indenture
Act of 1939 ("Trust Indenture Act") and the rules and regulations ("Rules
and Regulations") of the Commission thereunder and in all material
respects conformed to the requirements of the Act, the Trust Indenture Act
and the 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 Terms Agreement and at any and all times subsequent
thereto up to and including the Closing Date for the Purchased Securities
to which such Terms Agreement relates, the Registration Statement and the
Prospectus as then amended or supplemented will contain all statements
which are required to be stated therein in accordance with the Act, the
Trust Indenture Act and the Rules and Regulations and in all material
respects will conform to the requirements of the 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 a material fact required to
be stated therein or necessary to make the statements therein not
misleading; except that the foregoing does not apply to statements in or
omissions from any such documents that are based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein.
(c) Each document or portion thereof incorporated by reference in
the Prospectus conformed, when filed with the Commission, in all material
respects to the requirements of the Act and the Rules and Regulations or
the Exchange Act and the rules and regulations of the Commission
thereunder ("Exchange Act Rules and Regulations"), as the case may be, and
each document, if any, hereafter filed under the Exchange Act and deemed
to be incorporated by reference in the Prospectus in accordance with Item
12 of Form S-3 will conform when so filed with the requirements of the
Exchange Act and the Exchange Act Rules and Regulations.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the condition,
financial or otherwise, of the Company and its consolidated subsidiaries
considered as one enterprise, or in the earnings, business affairs or
business prospects of the Company and its consolidated subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, (ii) there have been no material transactions entered
into by the Company or any of its consolidated subsidiaries other than
those in the ordinary course of business, and (iii) except for regular
quarterly dividends on the Common Stock and on outstanding series of the
Company's Serial Preferred Stock, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(e) The Company and each of its consolidated subsidiaries have been
duly incorporated and are existing corporations in good standing under the
laws of their respective jurisdictions of incorporation, with corporate
power and authority to own, lease and operate their respective properties
and conduct their respective businesses as described in the Prospectus;
and are duly qualified as foreign corporations to transact business and
are in good standing in each jurisdiction in which their respective
ownership or leasing of properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified, considering all such cases in the aggregate, does not involve a
material risk to the business, properties, financial position or results
of operations of the Company and its consolidated subsidiaries.
(f) The authorized, issued and outstanding Common Stock of the
Company is as set forth in the Prospectus, except for subsequent
issuances, if any, pursuant to reservations or agreements referred to
therein; and the shares of issued and outstanding Common Stock set forth
therein have been duly and validly authorized and issued and are fully
paid and non-assessable.
(g) Neither the Company nor any of its consolidated subsidiaries is
in violation of its charter or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of them may
be bound; and the execution and delivery of this Agreement, and the
consummation of the transactions herein contemplated will not conflict
with or constitute a breach of, or default under, the Articles of
Incorporation or Code of Regulations of the Company or any material bond,
debenture, note or other evidence of indebtedness or any material
contract, indenture, mortgage, loan agreement, lease or other instrument
to which the Company or any of its consolidated subsidiaries is a party or
by which it or any of them may be bound, or any law, administrative
regulation or court decree.
(h) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened
against or affecting the Company or any of its consolidated subsidiaries,
which is required to be disclosed in the Prospectus or which might result
in any material adverse change in the earnings, affairs, condition
(financial or otherwise), business or prospects of the Company and its
consolidated subsidiaries considered as one enterprise, or might
materially adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of transactions
contemplated by this Agreement; all pending legal or governmental
proceedings to which the Company or any consolidated subsidiary is a party
or of which any of their property is the subject which are not described
in the Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company or any of its consolidated
subsidiaries which would be required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which
have not been filed as exhibits to the Registration Statement.
(i) The Purchased Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be entitled to the benefits of the
Indenture and will be valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Purchased Securities conform in all
material respects to the description thereof contained in the Prospectus.
(j) This Agreement has been duly authorized, executed and delivered
by the Company .
(k) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized and, when executed and delivered by the
Company, will constitute a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles, and the Indenture conforms in all
material respects to the description thereof contained in the Prospectus.
4. Purchase, Sale and Delivery of Purchased Securities. Purchased
Securities to be purchased by each Underwriter pursuant to the Terms Agreement
relating thereto, in definitive form to the extent practicable, and in such
authorized denominations and registered in such names as the Representatives 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 Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company in the funds specified in such Terms Agreement, all
at the place, time and date specified in such Terms Agreement or at such other
place, time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Closing Date" for such
Purchased Securities. The Company shall make certificates for the Purchased
Securities available to the Underwriters for checking and packaging at least one
full business day prior to the Closing Date at the place specified in such Terms
Agreement.
If the Terms Agreement provides for sales of Purchased Securities pursuant
to Delayed Delivery Contracts, the Company authorizes the Underwriters to
solicit offers to purchase Purchased Securities from investors of the types set
forth in the Prospectus pursuant to Delayed Delivery Contracts substantially in
the form of Exhibit B attached hereto but with such changes therein as the
Company may approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, on the Closing Date, the Company will pay to the
Representatives, for the accounts of the Underwriters, the
fee set forth in such Terms Agreement in respect of the principal amount of
Contract Purchased Securities. The Company will enter into a Delayed Delivery
Contract in all cases where a sale of Contract Purchased Securities arranged by
the Underwriters has been approved by the Company, but, except as the Company
may otherwise agree, such Delayed Delivery Contract must be for at least the
minimum amount of Contract Purchased Securities set forth in Schedule II to the
Terms Agreement, and the aggregate amount of Contract Purchased Securities may
not exceed the maximum amount set forth in such Schedule. The Company will
advise the Representatives no later than 10:00 A.M., New York City time, on the
second business day preceding the Closing Date (or at such later time as the
Representatives may otherwise agree) of the sales of Contract Purchased
Securities that have been so approved. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts.
The amount of Securities to be purchased by each Underwriter as set forth
in Schedule I to the Terms Agreement hereto shall be reduced by an amount which
bears the same proportion to the total amount of Contract Purchased Securities
as the amount of Purchased Securities set forth opposite the name of such
Underwriter bears to the total amount of Purchased Securities set forth in such
Schedule I, except to the extent that the Representatives determine that such
reduction shall be otherwise than in such proportion and so advise the Company;
provided, however, that the total amount of Purchased Securities to be purchased
by all Underwriters shall be the total amount of Purchased Securities less the
aggregate amount of Contract Purchased Securities.
It is understood that any Representative, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to the
Company on behalf of any other Underwriter for Purchased Securities to be
purchased by such Underwriter. Any such payment by such Representative shall not
relieve any such other Underwriter of any of its obligations hereunder.
5. Offering by Underwriters. After the execution of the Terms Agreement
relating to any Purchased Securities, the Underwriters propose to offer such
Purchased Securities for sale upon the terms and conditions set forth in the
Prospectus.
6. Covenants of the Company. In connection with each offering of
Purchased Securities, the Company covenants and agrees with each of the
Underwriters that:
(a) The Company will make no further amendment or any supplement to the
Registration Statement or Prospectus after the date of the Terms Agreement
relating to such Purchased Securities and prior to the Closing Date for
such Purchased Securities which shall be reasonably disapproved by the
Representatives for such Purchased Securities promptly after reasonable
notice; will advise the Representatives promptly of any such amendment or
supplement after such Closing Date and furnish the Representatives with
copies thereof; will 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, 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the
offering or sale of such Purchased Securities; will advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has become effective or
any supplement to the Prospectus or any amended Prospectus has been filed,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Prospectus or any supplement to
the Prospectus or any amended Prospectus and of the initiation of any
proceeding for any such purpose; and in the event of the issuance of any
stop order or of any order preventing or suspending the use of any such
Prospectus or any supplement to the Prospectus or amended Prospectus, will
use promptly its best efforts to obtain its withdrawal.
(b) If at any time when a prospectus relating to such Purchased
Securities is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act or
the Trust Indenture Act, the Company promptly will (x) prepare and file
with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance,
or (y) prepare and file with the Commission documents deemed to be
incorporated by reference in the Prospectus as then amended or
supplemented which will correct such statement or omission or effect such
compliance.
(c) Not later than 90 days after the end of the 12-month period
beginning at the end of any fiscal quarter of the Company during which a
Closing Date occurs, the Company will make generally available to its
securityholders an earnings statement (which need not be audited) covering
such 12-month period which will satisfy the provisions of Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158).
(d) The Company will furnish to the Representatives on behalf of the
Underwriters copies of the Registration Statement, each related
Preliminary Prospectus (which, including documents incorporated by
reference therein, is hereinafter referred to as a "Preliminary
Prospectus"), the Prospectus and all amendments and supplements to such
documents, and all documents incorporated by reference in any of the
foregoing documents, in each case as soon as available and in such
quantities as the Representatives may reasonably request. A copy of each
document prepared or filed by the Company on or prior to the date of the
Terms Agreement shall be furnished to the Representatives on behalf of the
Underwriters prior to their execution of the Terms Agreement; provided
that if such documents are not available, the Company shall furnish to
such Representatives the information included or to be included therein,
except that in such case the Company need not furnish such Representatives
with information to be included in the Prospectus Supplement as to the
terms of the Purchased Securities and their manner of distribution.
(e) The Company will cooperate with the Underwriters in qualifying such
Purchased Securities for offering and sale and in determining their
eligibility for investment under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in effect
so long as required for the distribution of such Purchased Securities;
provided, however, that the Company shall not be obligated to file any
general consent to service, or to qualify as a foreign corporation in any
state in which it is not now so qualified.
(f) During a period of five years from the date of the Terms Agreement
relating to such Purchased Securities, the Company will promptly furnish
to the Representatives and upon request, to each of the other
Underwriters, an annual report of the Company for each fiscal year and
current reports of the Company for each quarterly period, in each case in
the forms and at the times furnished to shareholders of the Company, and,
as soon as available, a copy of each report of the Company filed with the
Commission under the Exchange Act, and, during a period of three years
from the date of the Terms Agreement relating to such Purchased
Securities, the Company will furnish to the Representatives such other
information concerning the Company as the Representatives may reasonably
request.
(g) The Company will use its best efforts to obtain the listing of the
Purchased Securities, subject to notice of issuance, on such national
securities exchanges, if any, as are indicated in the Terms Agreement
relating to such Purchased Securities, and the registration thereof under
the Exchange Act, in each case prior to the Closing Date for such
Purchased Securities.
(h) The Company will not, without the prior consent of the
Representatives, offer, sell, contract to sell or otherwise dispose of any
debt constituting a security (as defined in the Act) or the Company or any
warrants to purchase debt securities of the Company substantially similar
to the Purchased Securities (other than (i) the Purchased Securities and
(ii) commercial paper issued in the ordinary course of business) during
the period beginning from and including the date of execution of the Terms
Agreement with respect to the Purchased Securities and continuing to and
including the Closing Date.
7. Expenses. The Company agrees with you and each Underwriter of any
Purchased Securities 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 Securities under
the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any amendments and supplements thereto and
the mailing and delivery of copies thereof to the Underwriters and
dealers;
(ii) the cost of printing this Agreement, any agreement among
underwriters, any Terms Agreement, any Delayed Delivery Contract, any
Indenture, any Blue Sky and legal investment memoranda and any other
document in connection with the offering, purchase, sale and delivery of
the Securities;
(iii) all expenses in connection with the qualification of the
Securities for offering and sale as provided in Section 6(e) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with Blue Sky and
legal investment surveys;
(iv) any fees charged by securities rating services for rating the
Securities;
(v) the cost of preparing the Securities;
(vi) 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 the Indentures and the Securities;
(vii) any filing fees payable to the National Association of
Securities Dealers Inc. with respect to the Securities;
(viii) out-of-pocket expenses incurred in distributing any
Preliminary Prospectuses to the Underwriters; and
(ix) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this Section 7.
It is understood, however, that, except as provided in this Section 7, 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.
8. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters of any Purchased Securities to purchase and pay for such
Purchased Securities will be subject to the accuracy of the representations and
warranties on the part of the Company herein as of the Closing Date relating to
such Purchased Securities with the same force and effect as if made on such
date, to the accuracy of the statements of the Company officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) Prior to such Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or the Representatives, shall be contemplated by
the Commission.
(b) The Representatives shall not have advised the Company or been
advised by the Company or the Commission that the Registration Statement
or Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact or omits to state a fact which the Representatives have
concluded is in either case material and in the case of an omission is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) The Representatives shall have received an opinion or opinions of
the General Counsel for the Company, dated such Closing Date, to the
effect set forth in Exhibit C hereto.
(d) The Representatives shall have received from Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of
the Purchased Securities, the Registration Statement, the Prospectus and
such other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(e) The Representatives shall have received a certificate of either
the Chairman of the Board of Directors, the Vice Chairman, the President
or a Vice President of the Company, and of either the principal financial
or principal accounting officer of the Company, dated such Closing Date,
to the effect that the representations and warranties on the part of the
Company herein are true and correct as of such Closing Date with the same
force and effect as if made on that date, and that the Company has
performed all its obligations hereunder to be performed at or prior to
that date, and as to such other matters as the Representatives may
reasonably request.
(f) The Representatives shall have received letters from Ernst & Young
LLP dated the date of this Agreement and such Closing Date, addressed to
the Company and to the Underwriters, with conformed copies for each of the
Underwriters, to the effect set forth in Exhibit D hereto.
(g) The Company shall have furnished to the Representatives such
further information and documents as the Representatives shall have
reasonably requested.
(h) Between the time of execution by the Representatives on behalf of
the Underwriters of such Terms Agreement and such Closing Date, there
shall not have occurred (i) any change or decrease specified in the letter
or letters referred to in paragraph (f) of this Section 8 or (ii) any
change, or any development involving a prospective change, in or affecting
the business or properties of the Company and its subsidiaries, taken as a
whole, the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the reasonable
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Purchased Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
(i) Between the time of execution by the Representatives on behalf of
the Underwriters of such Terms Agreement and such Closing Date, (i) no
downgrading shall have occurred in the rating accorded the Company's
unsecured debt securities or preferred stock by Standard & Poor's Ratings
Group or Xxxxx'x Investors Service, Inc. and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
unsecured debt securities or preferred stock.
(j) Between the time of execution by the Representatives on behalf of
the Underwriters of such Terms Agreement and such Closing Date, there
shall not have occurred any of the following: (A) trading in the Company's
Common Stock shall have been suspended by the Commission or the New York
Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited or minimum prices
shall have been established on such Exchange; (B) a general moratorium on
commercial banking activities in New York declared by either Federal or
New York State authorities; or (C) any material outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets either inside or outside the United States is
such as to make it, in your reasonable judgment, impracticable to proceed
with the public offering or the delivery of the Purchased Securities on
the terms and in the manner contemplated by the Prospectus as amended or
supplemented.
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request.
In the event that the purchase of such Purchased Securities does not occur
by reason of subsection (h) or (i) of this Section 8, the Company shall have no
liability to the Underwriters except for expenses to be paid or reimbursed as
set forth in Section 7 and its obligations under Section 9.
9. Indemnification and Contribution. (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 the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
supplement 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 it in connection with
investigating or defending against such loss, claim, damage, liability or
action; 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 the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any such amendment or supplement, or any related preliminary
prospectus supplement, in reliance upon and in conformity with written
information furnished to the Company by the Representatives, or by any
Underwriter through the Representatives, specifically for use in the preparation
thereof.
(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 the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any related preliminary prospectus supplement 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 the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, or any related preliminary prospectus supplement in
reliance upon and in conformity with written information furnished to the
Company by the Representatives, or by such Underwriter through the
Representatives, specifically for use in the preparation thereof; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending against any such loss,
claim, damage, liability or action.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 9, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representatives, in the case of parties indemnified
pursuant to paragraph (a) above and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
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 more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in this Section 9 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b) above, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of
the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. 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 or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were to be 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 in the first sentence of this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of 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 against any action or claim
which is the subject of this subsection (d). 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 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 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 9 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
10. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Purchased Securities which they may have agreed
to purchase under the Terms Agreement relating to such Purchased Securities and
the total amount of Purchased Securities under such Terms Agreement which such
defaulting Underwriter or Underwriters agreed to but failed to purchase does not
exceed 10% of the total amount of Purchased Securities to be purchased under
such Terms Agreement, the other Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Purchased
Securities which such defaulting Underwriters agreed to but failed to purchase.
If any Underwriter or Underwriters so default and the total amount of Purchased
Securities under such Terms Agreement with respect to which such default or
defaults occur is more than 10% of the total amount of Purchased Securities to
be purchased under such Terms Agreement and arrangements satisfactory to the
Representatives and the Company for the purchase of such Purchased Securities by
other persons are not made within thirty-six hours after such default, such
Terms Agreement may be terminated by the Representatives or by the Company
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be paid or reimbursed by the Company pursuant to
Section 7 and the respective obligations of the Company and the Underwriters
pursuant to Section 9. As used in this Agreement the term "Underwriter" includes
any person substituted for an Underwriter under this Section 10. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
11. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement or the Terms Agreement relating to the Purchased
Securities will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or the Company or any of its officers, directors or controlling
persons and will survive delivery of and payment for any Purchased Securities.
12. Notices. All communications hereunder will be in writing, and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives at the address or addresses set forth in the applicable
Terms Agreement, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Alco Standard Corporation, X.X. Xxx 000,
Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000. Attention: General Counsel; provided,
however, that any notice to an Underwriter pursuant to Section 9 will be mailed,
delivered or telegraphed and confirmed to such Underwriter at its address
furnished to the Company in writing for the purpose of communications
thereunder.
13. Successors. This Agreement and each Terms Agreement will inure to
the benefit of and be binding upon the Company, the Underwriters and their
respective successors and, to the extent provided in Section 9, the officers,
directors and controlling persons referred to in Section 9, and no other person
will have any right or obligation hereunder.
14. Representation of Underwriters. In all dealings with the Company
under this Agreement, the Representatives represent that they shall act on
behalf of each of the Underwriters and that any action under this Agreement
taken by the Representatives will be binding upon all the Underwriters.
15. Governing Law. This Agreement and each Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
16. Counterparts. This Agreement and each Terms Agreement may be
executed in counterparts, all of which, taken together, shall constitute a
single agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us six counterparts hereof.
Very truly yours,
ALCO STANDARD CORPORATION
By /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXX BROTHERS INC.
PRUDENTIAL SECURITIES INCORPORATED
ACTING SEVERALLY ON BEHALF OF THEMSELVES
AND THE SEVERAL UNDERWRITERS NAMED.
BY XXXXXX XXXXXXX & CO. INCORPORATED
BY: /s/ XXXXXXXX X. XXXXXX
-----------------------------------
NAME: XXXXXXXX X. XXXXXX
TITLE: VICE PRESIDENT
EXHIBIT A
FORM OF TERMS AGREEMENT
[Names of Representative(s)]
[As Representative(s) of
the several Underwriters,]
[Address of Representative(s)]
Dear Sirs:
Alco Standard Corporation (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
December 6, 1995 (the "Underwriting Agreement"), between the Company on one hand
and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx Brothers
Inc. and Prudential Securities Incorporated on the other hand, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Purchased 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 Terms Agreement to the
same extent as if such provision 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 Terms 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.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement, mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, 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 a purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Purchased Securities set forth
opposite the name of such Underwriter in Schedule I hereto, less the principal
amount of Purchased Securities, if any, covered by Delayed Delivery Contracts.
If the foregoing is in accordance with your understanding, kindly 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.
Very truly yours,
ALCO STANDARD CORPORATION
By____________________________
Title:
Accepted as of the date hereof:
[Names of Representative(s)]
On behalf of each of the Underwriters
By_______________________________
Title:
A-2
SCHEDULE I
Principal
Amount
of Purchased
Securities to
Underwriter be Purchased
----------- -------------
[Name(s) of Representatives]............................... $
[Name(s) of other Underwriters]............................
-------------
Total................................................... $
=============
A-3
SCHEDULE II
Title of Purchased Securities:
Amount of Securities:
Price to Public:
Purchase Price by Underwriters:
Specified Funds for Payment of Purchase Price:
Indenture:
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
Redemption Provisions:
Sinking Fund Provisions:
Stock Exchange Listing:
Place for Checking and Packaging Purchased
Securities:
Closing Date and Time:
Closing Location:
Manner of Payment for Purchased Securities:
[Delayed Delivery Contracts:
Fee:
Minimum amount of each Contract:
Maximum amount of all Contracts:]
Address for Notices per Section 12:
Other Terms:
A-4
EXHIBIT B
(Three copies of this Delayed Delivery Contract should be signed and
returned to the address shown below so as to arrive not later than 9:00 a.m.,
New York Time , ./*/)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering.]
Alco Standard Corporation
c/o (Insert name(s) of Representative(s)
of the Underwriters]
Gentlemen:
The undersigned hereby agrees to purchase from Alco Standard Corporation
(the "Company"), and the Company agrees to sell to the undersigned, [if one
delayed closing, insert: as of the date hereof, for delivery on (the
"Delivery Date")]
$ principal amount of the Company's
(hereinafter called "Debt Securities"), offered by the Company's Prospectus
dated , and a Prospectus Supplement dated
relating thereto, receipt of copies of which is hereby acknowledged, at %
of the principal amount thereof plus accrued interest, if any, and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof for
delivery on the dates set forth below, Debt Securities in the principal amounts
set forth below.
DELIVERY DATE PRINCIPAL AMOUNT
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Debt Securities which the undersigned has agreed to
purchase for delivery on-the-each Delivery Date shall be made to the Company or
its order by immediately available funds at the office of at
.m., New York Time, on-the-such-Delivery Date upon delivery to the
undersigned of the Debt Securities to be purchased by the undersigned--for
delivery on such Delivery Date--in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to-the-such-Delivery Date.
_________________
* Insert date which is second full business day prior to Closing Date under
Term Agreement
B-1
It is expressly agreed that the purchase hereunder of Debt Securities
is to be regarded in all respects as a purchase as of the date of this Contract;
that the obligation of the Company to make delivery of and accept payment for,
and the obligation of the undersigned to take delivery of and make payment for,
Debt Securities on-the-each-Delivery Date shall be subject only to the
conditions that (1) the purchase of Debt Securities shall not-at-the-such-
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject, and (2) the Company shall have sold
to the Under writers the total principal amount of the Debt Securities less the
principal amount thereof covered by this and other similar Contracts./*/ The
undersigned represents that its investment in such Debt Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject.
Promptly after completion of the sale of Debt Securities to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of, and be binding upon, the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This Contract may be executed by either of the parties hereto in any
number of counterparts each of which shall be deemed to be an original, but all
such counterparts shall constitute one and the same instrument.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Very truly yours,
________________________________________
(Name of Purchaser)
By______________________________________
________________________________________
(Title of Signatory)
________________________________________
______________________________
/*/ Modify appropriately if the Underwriters may be obligated to take less than
all of the Purchased Securities under the Terms Agreement.
B-2
________________________________________
(Address of Purchaser)
Alco Standard Corporation
Accepted as of the above date
By________________________________
Title:
B-3
EXHIBIT C
OPINION OF GENERAL COUNSEL
(i) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Ohio, with corporate power and
authority to own its properties and conduct its business as it is now being
conducted except where the failure to have such power or authority would not
individually or in the aggregate have a material adverse effect on the financial
condition or operations of the Company and its subsidiaries, taken as a whole;
(ii) Each subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each such
subsidiary have been duly and validly authorized and issued, and are fully paid
and non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that such counsel believes
that both of you and such counsel are justified in relying upon such opinions
and certificates);
(iii) The Company has an authorized capital stock as set forth in the
Prospectus; and all of the issued shares of capital stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Purchased Securities have been duly and validly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
this Agreement, will be entitled to the benefits of the Indenture and will be
valid and legally binding obligations of the Company, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Purchased Securities
conform in all material respects to the description thereof contained in the
Prospectus;
(iv) This Agreement has been duly authorized, executed and delivered by
the Company;
(v) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and legally binding agreement of the Company, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture conforms
in all material respects to the description thereof contained in the Prospectus;
(vi) To the best of such counsel's knowledge after reasonable
investigation 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 which, individually or in
the aggregate, are likely to have a material adverse effect on the consolidated
financial condition or operations of 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;
(vii) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Purchased
Securities and the Indenture will not conflict with or result in a breach or
violation of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such counsel to
which the Company or any
C-1
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject (except for such conflicts, breaches,
violations and defaults that would not have a material adverse effect on the
financial condition or operations of the Company and its subsidiaries, taken as
a whole, and that would not affect the validity of the Purchased Securities),
nor will such action result in any violation of the provisions of the Articles
of Incorporation or Code of Regulations of the Company as in effect at the date
hereof or any existing 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 subsidiaries or any of their properties (except for such
violations of such statutes, orders, rules or regulations that would not have a
material adverse effect on the financial condition or operations of the Company
and its subsidiaries, taken as a whole, and that would not affect the validity
of the Purchased Securities);
(viii) To the best of such counsel's knowledge after reasonable
investigation, no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the performance by the Company of its obligations under this
Agreement, the Purchased Securities and the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as may be required
under state or foreign securities or Blue Sky laws in connection with the offer
and sale of the Purchased Securities;
(ix) The documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to the date
hereof (other than the financial statements and related schedules and other
financial 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 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 such documents 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, or, in the case of other documents which were
filed under 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
(x) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the date hereof
(other than the financial statements and related schedules and other financial
data 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 rules and
regulations thereunder; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment thereto made
by the Company prior to the date hereof (other than the financial statements and
related schedules and other financial data therein, as to which such counsel
need express no opinion) 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 its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the date hereof (other than the financial statements and related
schedules therein and other financial data therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading or that, as
of the date hereof, either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Company prior to the date
hereof (other than the financial statements and related schedules and other
financial data therein, as
C-2
to which such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
the statements in the Prospectus or any further amendment or supplement thereto
made by the Company prior to the date hereof with respect to statutes,
administrative orders and regulations and legal and governmental proceedings
fairly and accurately present in all material respects the information required
to be set forth therein and to the best of such counsel's knowledge there are no
statutes, administrative orders or regulations required to be described in the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the date hereof which are not described as required; and such counsel
does not know of any amendment to the Registration Statement required to be
filed or 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 or any further amendment or supplement thereto
made by the Company prior to the date hereof or required to be described in the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to the date hereof which are not filed or
incorporated by reference or described as required.
C-3
EXHIBIT D
Pursuant to Section 8(f) of the Underwriting Agreement, Ernst & Young LLP
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and schedules audited by
them and included in the Prospectus as amended or supplemented or the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published rules
and regulations thereunder;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus as amended or
supplemented agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
in the Prospectus as amended or supplemented, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus as amended or supplemented do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(B) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus as amended or supplemented) or any increase in
the consolidated long-term debt of the Company and its subsidiaries; in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus as amended or
supplemented, except in each case for changes, increases or decreases
which the Prospectus as amended or supplemented discloses have occurred or
may occur or which are described in such letter; and
(C) for the period from the date of the latest financial statements
included in the Prospectus as amended or supplemented to the date of the
latest consolidated financial statements prepared by the Company there
were any decreases in consolidated revenues, income from continuing
operations, net income, earnings per share from continuing operations, or
any increases in other items specified by the Representatives, in each
case as compared with the
D-1
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case
for decreases or increases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such
letter; and
(v) In addition to the audit referred to in their report(s) included in the
Prospectus as amended or supplemented and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs (iii) and
(iv) above, they have carried out certain specified procedures, not constituting
an audit in accordance with generally accepted accounting standards, with
respect to certain amounts, percentages, and financial information specified by
the Representatives, which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus as amended or
supplemented, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them to be
in agreement.
D-2
