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EXHIBIT 1
$150,000,000
XXXXXX, INC.
___% Senior Notes Due ______________, 2008
Guaranteed by
XXXXXX INTERNATIONAL, INC.
Underwriting Agreement
________________, 1998
X.X. Xxxxxx Securities Inc.
Salomon Brothers Inc
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxx, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), $150,000,000 principal amount of its _____% Senior Notes Due
__________, 2008 (the "Notes"). The Notes will be unconditionally guaranteed
(the "Guarantees" and, together with the Notes, the "Securities") as to payment
of principal, premium (if any) and interest by Xxxxxx International, Inc., a
Delaware corporation, as guarantor (the "Guarantor"). The Securities will be
issued pursuant to the provisions of an Indenture to be dated as of
____________, 1998 among the Company, the Guarantor and LaSalle National Bank,
as Trustee (the "Trustee").
The Company and the Guarantor have prepared and filed with the
Securities and Exchange Commission (the "Commission"), in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-3 (file
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no. 333-42481), including a prospectus, relating to the Securities. The
registration statement as amended at the time of its effectiveness, or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, including in each
case information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement", and the
prospectus in the form first used to confirm sales of Securities is referred to
in this Agreement as the "Prospectus". If the Company and the Guarantor have
filed an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement. Any reference in this Agreement to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such preliminary prospectus or the
Prospectus, as the case may be, and any reference to "amend" "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
The Company and the Guarantor hereby agree with the Underwriters as
follows:
1. The Company and the Guarantor agree to issue and sell the Securities
to the several Underwriters as hereinafter provided, and each Underwriter, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Company and the Guarantor the respective principal amount of
Securities set forth opposite such Underwriter's name in Schedule I hereto at a
price equal to ______% of their principal amount plus accrued interest, if any,
from ______________, 1998 to the date of payment and delivery.
2. The Company and the Guarantor understand that the Underwriters
intend (i) to make a public offering of their respective portions of the
Securities as soon after (A) the Registration Statement has become effective and
(B) the parties hereto have executed and delivered this Agreement, as in the
judgment of the Representatives is advisable and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer to an
account previously specified by the Company to the Representatives in same day
funds not later than 10:00 a.m. on _______________, 1998, or at such other time
on the same or such other date, not later than the third Business Day
thereafter, as the Representatives and the Company may agree upon in writing.
The time and date of such payment is referred to herein as the
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"Closing Date". As used herein, the term "Business Day" means any day other than
a day on which banks are permitted or required to be closed in New York City.
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes
(collectively, the "Global Note") representing the Securities, with any transfer
taxes payable in connection with the transfer to the Underwriters of the
Securities duly paid by the Company and the Guarantor. The Global Note will be
made available for inspection by the Representatives at the office of the
Trustee, Corporate Trust Services, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, not later than 1:00 P.M., New York City time, on the Business Day prior
to the Closing Date.
4. Each of the Company and the Guarantor, jointly and severally,
represents and warrants to each Underwriter that, as of the date on which this
Agreement becomes effective pursuant to Section 9 hereof:
(a) no order preventing or suspending the use of any
preliminary prospectus has, to the best knowledge of the Company and
the Guarantor, been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, complied when so filed in
all material respects with the Securities Act, and did 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, in light of the circumstances under which they were made, not
misleading; provided that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company and the Guarantor in writing by such Underwriter expressly
for use therein;
(b) the Registration Statement has been declared effective by
the Commission under the Securities Act, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company and the Guarantor, threatened by the Commission; and the
Registration Statement and Prospectus (as amended or supplemented if
the Company and the Guarantor shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Trust Indenture Act") 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 date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, and the Prospectus, as amended or supplemented, if
applicable, at the
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Closing Date will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company and the Guarantor
in writing by such Underwriter expressly for use therein;
(c) the documents incorporated by reference in the Prospectus,
when they become effective or were filed with the Commission as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act as applicable and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(d) the financial statements of the Company and the Guarantor,
including the related notes and schedules thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus (i) present fairly the consolidated financial position of
the Company and the Guarantor, as the case may be, and their respective
consolidated subsidiaries taken as a whole as of the dates indicated
and the consolidated results of their respective operations and the
changes in their respective consolidated cash flows for the periods
specified in conformity with generally accepted accounting principles
("GAAP") in the United States applied on a consistent basis throughout
the periods involved, except as stated therein or in the reports
related thereto and (ii) have been prepared in accordance with the
applicable accounting requirements of Regulation S-X promulgated under
the Securities Act ("Regulation S-X") in all material respects; the
financial statement schedules included in the Registration Statement
include in all material respects the information required to be
included therein; and the pro forma financial information, and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus have been prepared in
accordance with the requirements of the Securities Act and the Exchange
Act, as applicable, and are based on good faith estimates and
assumptions believed by the Company and the Guarantor to be reasonable;
(e) the financial statements of Federal Cartridge Company
("Federal"), including the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus (i) present fairly the financial position of Federal as of
the dates indicated and the results of its operations and the changes
in its cash flows for the periods specified in conformity with GAAP in
the United States applied on a consistent basis throughout the periods
involved, and (ii) have been
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prepared in accordance with the applicable accounting requirements of
Regulation S-X in all material respects;
(f) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set
forth or contemplated therein or in Annex B hereto, there has not been
any change in the capital stock or long-term debt of the Guarantor or
any of its subsidiaries (including the Company, the "Subsidiaries"), or
any material adverse change in the business, prospects, management,
operations or condition, financial or otherwise of the Guarantor and
the Subsidiaries, taken as a whole (a "Material Adverse Change," and
any event or state of facts that could reasonably be expected to result
in a Material Adverse Change is herein referred to as a "Prospective
Material Adverse Change"), otherwise than as set forth or contemplated
in the Prospectus; and except as set forth or contemplated in the
Prospectus, neither the Guarantor nor any of the Subsidiaries has
entered into any transaction or agreement (other than those in the
ordinary course of business) materially adverse to the Guarantor and
the Subsidiaries taken as a whole;
(g) each of the Company and the Guarantor has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with full 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 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, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the general affairs, business, prospects,
management, financial position, operations or condition, financial or
otherwise, of the Guarantor and the Subsidiaries, taken as a whole
("Material Adverse Effect");
(h) each of the Subsidiaries (other than the Company) has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with full
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 and is in good
standing under the laws of each jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a Material Adverse Effect; except as set
forth in the Registration Statement and the Prospectus, all the
outstanding shares of capital stock of each Subsidiary listed on Annex
A hereto, which constitute all of the "significant" Subsidiaries as
defined in Rule 1-02(w) of Regulation S-X (the "Significant
Subsidiaries") has been duly authorized and validly issued, are
fully-paid and non-assessable, and (except, in the case of foreign
Subsidiaries, for directors' qualifying shares and transfer
restrictions imposed by local law the compliance with
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which, singly or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect) are owned by the Guarantor, directly or
indirectly, free and clear of all liens, encumbrances, security
interests and claims; and except as set forth in the Registration
Statement and the Prospectus or in Annex A, there are no outstanding
(a) securities or obligations of the Guarantor or the Company
convertible into or exchangeable for any shares of capital stock of the
Guarantor or the Company or any Significant Subsidiary, (b) rights,
warrants or options to acquire or purchase from the Guarantor or the
Company any shares of capital stock of the Guarantor, the Company or
any Significant Subsidiary or any such convertible or exchangeable
securities or obligations or (c) obligations or understandings of the
Guarantor or the Company to issue or sell any shares of capital stock
of the Guarantor, the Company or any Significant Subsidiary, any such
convertible or exchangeable securities or obligations, or any such
warrants, rights or obligations;
(i) this Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor;
(j) the issuance and sale by the Company of, and the
performance by the Company of its obligations under, the Notes have
been duly authorized by all necessary corporate action on the part of
the Company, and, when executed by the Company and authenticated by the
Trustee 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, the Notes will be entitled to the benefits of
the Indenture and will constitute legal, valid and binding obligations
of the Company enforceable against the Company in accordance with their
terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect relating to
creditors' rights generally and subject, as to enforcement, to general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); the execution and
delivery by the Guarantor of, and the performance by the Guarantor of
its obligations under, the Guarantees have been duly authorized by all
necessary corporate action on the part of the Guarantor, and when the
Notes have been duly authenticated by the Trustee in accordance with
the terms of the Indenture and the Securities have been delivered to
and paid for by the Underwriters in accordance with the terms of this
Agreement, will constitute valid and binding obligations of the
Guarantor entitled to the benefits provided by the Indenture, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to creditors' rights
generally and subject, as to enforcement, to general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity); the execution and delivery by the
Company and the Guarantor of, and the performance by each of the
Company and the Guarantor of its respective obligations under, the
Indenture have been duly authorized by all necessary corporate action
of the Company and the Guarantor, and the Indenture has been duly
authorized and upon effectiveness of the Registration Statement will
have been duly qualified
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under the Trust Indenture Act and, when executed and delivered by the
Company, the Guarantor and the Trustee, the Indenture will constitute a
valid and binding agreement of the Company and the Guarantor
enforceable against the Company and the Guarantor in accordance with
its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect relating to
creditors' rights generally and subject as to enforcement, to general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and the Securities and
the Indenture will conform in all material respects to the descriptions
thereof in the Prospectus;
(k) neither the Guarantor nor the Company is in violation of
its Certificate of Incorporation or Bylaws or is, or with the giving of
notice or lapse of time or both would be, in violation of or in default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Guarantor or any of the
Subsidiaries is a party or by which it or any of them is bound or to
which any of their respective properties is subject, except for
violations and defaults which individually and in the aggregate would
not reasonably be expected to have a Material Adverse Effect;
(l) the execution and delivery by the Company of the Notes and
the execution and delivery by the Guarantor of the Guarantees and the
performance by each of the Company and the Guarantor of its respective
obligations under the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein contemplated do
not result in any violation of the Certificate of Incorporation or
Bylaws of the Guarantor or the Company, and do not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or give rise to any right to
accelerate the maturity or require the prepayment of any indebtedness
or the purchase of any capital stock under, or result in the creation
or imposition of any lien, charge or encumbrance upon any material
property or assets of the Guarantor or any Subsidiary of the Guarantor
under, (i) any indenture, mortgage, loan agreement, note, lease,
partnership agreement or other agreement or instrument to which the
Guarantor or any such Subsidiary is a party or by which any of them may
be bound or to which any of their properties may be subject, (ii) any
existing applicable law, rule or regulation (other than the securities
or Blue Sky laws of the various states of the United States of America)
or (iii) any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Guarantor or any such Subsidiary or any of their respective
properties, except, in the case of clause (i), for such violations,
conflicts, breaches, defaults, rights, liens, charges and encumbrances
that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect or a material adverse effect
on the ability of the Guarantor or the Company to perform their
respective obligations under this Agreement; and no consent, approval,
authorization,
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order, license, registration or qualification of or with any such court
or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company and the Guarantor of
the transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been or will be prior to the
Closing Date obtained under the Securities Act, the Trust Indenture Act
and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters;
(m) except as described in the Registration Statement and the
Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of the Guarantor or the Company,
threatened against or affecting the Guarantor or any of its
Subsidiaries that is reasonably likely to have a Material Adverse
Effect or that is reasonably likely to have a material adverse effect
on the consummation of the transactions contemplated in this Agreement.
There is no action, suit or proceeding before or by any government,
governmental instrumentality or court, now pending, or to the knowledge
of the Guarantor or the Company, threatened against or affecting the
Guarantor or any of its Subsidiaries that is required to be described
in the Registration Statement or the Prospectus that is not so
described. The aggregate of all pending legal or governmental
proceedings known to the Guarantor or the Company to which the
Guarantor or any of its Subsidiaries is a party or that affect any of
their properties that are not referred to or described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to its business, is not reasonably likely to have
a Material Adverse Effect;
(n) Coopers & Xxxxxxx L.L.P. who have audited certain
financial statements of the Guarantor and the Company incorporated by
reference into the Registration Statement are independent public
accountants of the Company and the Guarantor as required by the
Securities Act;
(o) Deloitte & Touche LLP who have audited certain financial
statements of Federal incorporated by reference into the Registration
Statement are independent public accountants of Federal as required by
the Securities Act;
(p) each of the Guarantor and the Subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), and all courts and
other tribunals, domestic or foreign, necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business
as conducted as of the date hereof, except in each case where the
failure to obtain licenses, permits, certificates, consents, orders,
approvals and other authorizations, or to make all
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declarations and filings, would not have a Material Adverse Effect, and
neither the Guarantor nor any such Subsidiary has received any notice
of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement and
the Prospectus and except, in each case, where such revocation or
modification would not reasonably be expected to have a Material
Adverse Effect; and each of the Guarantor and the Subsidiaries is in
material compliance with all laws and regulations relating to the
conduct of its respective business as conducted as of the date hereof,
except where noncompliance with such laws and regulations would not
reasonably be expected to have a Material Adverse Effect;
(q) there are no labor disputes with the employees of the
Guarantor or any of the Subsidiaries which are reasonably likely to
have a Material Adverse Effect;
(r) the Guarantor and its Subsidiaries are in material
compliance with all applicable existing federal, state, local and
foreign laws and regulations relating to protection of human health or
the environment or imposing liability or standards of conduct
concerning any Hazardous Material (as hereinafter defined)
("Environmental Laws"), except, in each case, where noncompliance,
singly or in the aggregate, would not be reasonably likely to have a
Material Adverse Effect. The term "Hazardous Material" means (i) any
"hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, (ii) any
"hazardous waste" as defined by the Resource Conservation and Recovery
Act, as amended, (iii) any petroleum or petroleum product, (iv) any
polychlorinated biphenyl, and (v) any pollutant or contaminant or
hazardous, dangerous, or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental Law;
(s) the conditions for use of a Registration Statement on Form
S-3 set forth in the General Instructions to Form S-3 have been
satisfied with respect to the Company and the Guarantor and the
transactions contemplated by this Agreement, the Indenture and the
Registration Statement.
5. Each of the Company and the Guarantor covenants and agrees
with each of the several Underwriters as follows:
(a) to use its reasonable best efforts to cause the
Registration Statement to become effective at the earliest possible
time and, if required, to file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A under
the Securities Act; and to file promptly all reports and any definitive
proxy or information statements required to be filed by it 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 for so long
as the delivery of a prospectus is required in
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connection with the offering or sale of the Securities; and to use its
reasonable best efforts to furnish copies of the Prospectus to the
Underwriters in New York City prior to 2:00 p.m., New York City time,
on the Business Day next succeeding the date of this Agreement in such
quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company and the
Guarantor, to the Representatives, three conformed copies of the
Registration Statement (as originally filed) and each amendment thereto
together with one set of original signature pages thereto, in each case
including exhibits but excluding documents incorporated by reference
therein, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case without exhibits or documents incorporated by
reference therein and, during the period from the effectiveness of this
Agreement through the time period referred to in the first clause of
the first sentence of paragraph (e) below (and subject to the
provisions of paragraph (e)), to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements
thereto) as the Representatives may reasonably request;
(c) during the period from the effectiveness of this Agreement
through the end of the time period referred to in the first clause of
the first sentence of paragraph (e) below, before filing any amendment
or supplement to the Registration Statement or the Prospectus, to
furnish to the Representatives a copy of the proposed amendment or
supplement for review and not to file any such proposed amendment or
supplement to which the Representatives reasonably object unless, in
the judgment of the Company and the Guarantor and their counsel, such
amendment is required by law;
(d) during the period from the effectiveness of this Agreement
through the end of the time period referred to in the first clause of
the first sentence of paragraph (e) below, to advise the
Representatives promptly, and to confirm such advice in writing, (i)
when the Registration Statement has become effective, (ii) when any
amendment to the Registration Statement has been filed or becomes
effective, (iii) when any supplement to the Prospectus or any amendment
to the Prospectus has been filed and to furnish the Representatives
with copies thereof, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus or the Prospectus
or the initiation or threatening of any proceeding for that purpose,
(vi) of the occurrence of any event, within the period referenced in
paragraph (e) below, 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 when the
Prospectus is delivered to a purchaser, not misleading, and (vii) of
the receipt
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by the Company or the Guarantor of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its reasonable best efforts to prevent the
issuance of any such stop order, or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or
of any order suspending any such qualification of the Securities, or
notification of any such order and, if issued, to obtain as soon as
possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Securities as in the reasonable opinion of
counsel for the Underwriters a prospectus relating to the Securities is
required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company and the
Guarantor if during the nine-month period immediately following the
date on which a Prospectus is first provided to the Underwriters
hereunder and at the expense of the Underwriters thereafter, to the
Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company and the Guarantor) to which
Securities may have been sold by the Representatives on behalf of the
Underwriters and to any other dealers upon written request, such
amendments or supplements to the Prospectus as may be necessary so that
the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply
with law;
(f) to use their best efforts (A) to qualify the Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representatives shall reasonably request and (B)
to continue such qualification in effect so long as reasonably required
for distribution of the Securities; provided that neither the Company
nor the Guarantor shall be required to qualify the Securities in any
jurisdiction where, as a result of such qualification, the Company or
the Guarantor would be required to qualify as a foreign corporation, to
file a general consent to service of process or to become subject to
taxation in any jurisdiction;
(g) to make generally available to its security holders and to
the Representatives as soon as practicable an earnings statement which
will satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Commission promulgated thereunder covering a period of
at least twelve months beginning with the first fiscal quarter of the
Company and the Guarantor occurring after the "effective date" (as
defined in Rule 158) of the Registration Statement, provided that in no
event shall the Company and the Guarantor be required to provide such
statement prior to ninety days following the end of such twelve month
period; provided, however, that
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the Company shall not be obligated to make such an earnings statement
available if, at the time when the Guarantor makes such an earnings
statement available, (i) the Company would be required to file periodic
reports and other documents and information with the Commission but for
exemptive relief granted by the Commission or in a no-action position
taken by the staff of the Commission with respect to the Company
allowing such requirement to be satisfied by the filing of such
reports, documents and information by the Guarantor and (ii) the
Guarantor complies with any applicable requirements set forth in such
exemptive relief or in a letter stating such no-action position;
(h) so long as the Securities are outstanding, until five
years after the Closing Date, to furnish to the Representatives copies
of all reports or other communications (financial or other) furnished
to holders of the Securities, and copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange;
(i) During the period beginning the date hereof and continuing
until the Business Day following the Closing Date, without the prior
written consent of the Underwriters, not to offer, sell, contract to
sell, or otherwise dispose of any debt securities of or guaranteed by
the Company or the Guarantor which are substantially similar to the
Securities;
(j) to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters may
designate (including reasonable fees of counsel for the Underwriters
and their disbursements related to such registration or qualification,
provided that such fees and disbursements payable by the Company
pursuant to this clause (iii) shall not exceed $1,000), (iv) in
connection with the listing of the Securities on any stock exchange,
(v) consisting of any fees payable to the National Association of
Securities Dealers, Inc. in connection with the offering of the
Securities, (vi) in connection with the printing (including word
processing and
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duplication costs) and delivery of this Agreement, the Indenture, the
Preliminary and Supplemental Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to Underwriters and dealers of
copies of the Registration Statement and, subject to Section 5(e)
hereof, the Prospectus, including mailing and shipping, as herein
provided, (vii) payable to rating agencies in connection with the
rating of the Securities, (viii) any expenses incurred by the Company
and the Guarantor in connection with a "road show" presentation to
potential investors (provided that the Company shall be obligated to
reimburse the Underwriters pursuant to this clause (viii) only for such
expenses as are reasonably incurred by the Underwriters on behalf of
the Company) and (ix) the cost and charges of any transfer agent; and
(l) prior to the Closing Date, the Company and the Guarantor
shall disclose to the Representatives any transaction or agreement
(other than those in the ordinary course of business) that the
Guarantor or a Subsidiary has entered into since the respective dates
that information is given in the Registration Statement and Prospectus
that is material to the Guarantor and the Subsidiaries taken as a
whole.
6. The several obligations of the Underwriters hereunder to
purchase the Securities on the Closing Date are subject to the performance by
each of the Company and the Guarantor of its respective obligations hereunder
and to the following additional conditions:
(a) the Registration Statement shall have become effective (or
if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective) not later than 5:00 P.M., New York City time, on the date
this Agreement becomes effective pursuant to Section 9 hereof;
provided, however, that if the Registration Statement becomes effective
pursuant to Rule 430A and a post-effective amendment is thereafter
filed, such post-effective amendment shall have become effective not
later than 5:00 p.m., New York City time, on the Business Day following
the day on which such post-effective amendment is filed; and no stop
order suspending the effectiveness of the Registration Statement or any
post-affective amendment shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission;
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 Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional
information by the Commission shall have been complied with to the
reasonable satisfaction of the Representatives;
(b) the representations and warranties of each of the Company
and the Guarantor contained herein are true and correct on and as of
the Closing Date as if made on and as of the Closing Date and each of
the Company and the Guarantor shall have complied with all agreements
and all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date;
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(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company or the
Guarantor by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus there shall not
have been any Material Adverse Change or any development involving a
Prospective Material Adverse Change, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus, the
effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the Closing Date on the terms and in the
manner contemplated in the Registration Statement and the Prospectus;
(e) the Representatives shall have received on and as of
the Closing Date a certificate of Xxxxxx X. Xxxxxx, Chief Financial
Officer of the Company and the Guarantor, Xxxx X. Panettiere, Chief
Executive Officer of the Company and the Guarantor or Xxxxxx X.
Xxxxxxxxxxx, Chief Accounting Officer of the Company and the Guarantor
reasonably satisfactory to the Representatives to the effect set forth
in subsections (a) through (c) of this Section and to the further
effect that since the respective dates as of which information is given
in the Registration Statement and the Prospectus there has not occurred
any Material Adverse Change, or any development involving a Prospective
Material Adverse Change, otherwise than as set forth or contemplated in
the Registration Statement and the Prospectus;
(f) Xxxxxxx X. Xxxxxx III, General Counsel for the
Company and the Guarantor, shall have furnished to the Representatives
his written opinion, dated the Closing Date, to the effect that:
(i) each of the Company and the Guarantor has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware;
(ii) each of the Company and the Guarantor 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,
other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect;
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(iii) each [Significant Subsidiary incorporated under
the laws of any State in the States of the United States] has
been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of
incorporation with corporate power and corporate authority to
own its properties and conduct its business as described in
the Prospectus and is 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, other than where the failure to be so qualified
and in good standing would not have a Material Adverse Effect;
(iv) such counsel does not know of any action, suit
or proceeding before or by any government, governmental
instrumentality or court now pending or threatened against or
affecting the Guarantor or the Company or any of their
respective properties that is required to be described in the
Registration Statement or the Prospectus and is not so
described (provided that for such purpose such counsel need
not regard any suit or proceeding to be "threatened" unless
the potential litigant or instrumentality has manifested to
the management of the Company or to such counsel a present
intention to initiate such suit or proceedings) or of any
contract or other document that is required to be described in
the Registration Statement or the Prospectus, or to be filed
as an exhibit to the Registration Statement, that is not
described or filed, as required;
(v) the issue and sale by the Company of the Notes
and by the Guarantor of the Guarantees and the performance by
each of the Company and the Guarantor of its respective
obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and
therein contemplated will not (i) result in any violation of
the Certificate of Incorporation or Bylaws of the Guarantor or
the Company, (ii) contravene any judgment, order or decree
known to such counsel by which the Company or any Subsidiary
is bound or by which their assets may be affected or (iii)
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a
default) under, or give rise to any right to accelerate the
maturity or require the prepayment of any indebtedness or the
purchase of any capital stock under, or result in the creation
or imposition of any lien, charge or encumbrance upon any
material properties or assets of the Guarantor or the Company,
pursuant to the terms of any agreement known to such counsel,
except for such violations, contraventions, conflicts,
breaches, defaults, rights, liens, charges or encumbrances
that would not have a Material Adverse Effect;
Such opinions (other than the opinion described in clause
(iii) above) may be limited to the laws of the State of Delaware and
the federal laws of the United States.
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In rendering the opinion described in clause (iii) above, such counsel
may rely, as to matters involving the application of laws other than
the laws of the United States and the States of Delaware, with respect
to the opinion that each Significant Subsidiary "is in good standing
under the laws of each other jurisdiction in which it owns or leases
property" solely upon a certificate of the Secretary of State of such
jurisdiction certifying that such Significant Subsidiary is in good
standing in such jurisdiction as of the date specified in such
certificate. In rendering such opinions, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on originals
or copies certified or otherwise identified to such counsel's
satisfaction of corporate records of the Company and the Guarantor and
other certificates and other written statements of public officials,
officers and representatives of the Company and the Guarantor and other
persons. The opinion of such counsel for the Company and the Guarantor
shall state that the opinion of any such other counsel upon which they
relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon.
The opinion of Xxxxxxx X. Xxxxxx III described above shall be
rendered to the Underwriters at the request of the Company and the
Guarantor and shall so state therein.
(g) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Company and the Guarantor, shall have furnished to the Representatives
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(i) each of the Company and the Guarantor is validly
existing as a corporation in good standing under the laws of
the State of Delaware, and has the corporate power to own,
lease and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus;
(ii) based solely on the inquiry of Xxxxxxx X. Xxxxxx
III, General Counsel of the Company and the Guarantor, and of
the lawyers currently with Cleary, Gottlieb, Xxxxx & Xxxxxxxx
who, according to the records of such firm, have performed
legal services for the Company and the Guarantor since
February 1, 1995, such counsel does not know of any action,
suit or proceeding before or by any government, governmental
instrumentality or court now pending or threatened against or
affecting the Guarantor or the Company or any of their
respective properties that is required to be described in the
Registration Statement or the Prospectus and is not so
described (provided that for such purpose such counsel need
not regard any suit or proceeding to be "threatened" unless
the potential litigant or instrumentality has manifested to
the management of the Company or to such counsel a present
intention to initiate such suit or proceedings) or of any
contract or other document that is required to be
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described in the Registration Statement or the Prospectus, or
to be filed as an exhibit to the Registration Statement, that
is not described or filed, as required;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company and the Guarantor;
(iv) the issuance and sale of, and the performance
of all obligations under, the Notes have been duly authorized
by all necessary corporate action of the Company, and the
Notes, when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the
Under writers in accordance with the terms of this Agreement,
will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture subject to
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws now or hereafter in effect relating to
creditors' rights generally and subject, as to enforceability,
to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity);
(v) the execution, delivery and performance of the
Guarantees have been duly authorized by all necessary
corporate action of the Guarantor, and when the Notes have
been duly authenticated in accordance with the terms of the
Indenture and the Securities have been delivered to and paid
for by the Underwriters in accordance with the terms of this
Agreement, the Guarantees will constitute valid and binding
obligations of the Guarantor entitled to the benefits provided
by the Indenture subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect relating to creditors' rights generally and subject, as
to enforcement, to general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or
in equity);
(vi) the execution, delivery and performance of the
Indenture have been duly authorized by all necessary corporate
action of the Company and the Guarantor, and the Indenture has
been duly executed and delivered by the Company and the
Guarantor and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and
binding instrument of each of the Company and the Guarantor
enforceable against them in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and subject, as to enforcement,
to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity);
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(vii) the execution and delivery by each of the
Company and the Guarantor of, and the performance by each of
the Company and the Guarantor of its respective obligations
under, the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein
contemplated, will not (i) result in any violation of the
Certificate of Incorporation or Bylaws of the Guarantor or the
Company, (ii) violate any provision of any of the laws, rules
and regulations of the United States of America, the State of
Delaware and the State of New York (collectively, the
"Applicable Laws") (assuming for this purpose that (A) the
Registration Statement, at the time it becomes effective, does
not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
(B) the Prospectus, as of the date thereof, does not contain
any untrue statement of material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading), except that such counsel need not
express any opinion with respect to state securities laws;
(iii) contravene any judgment, order or decree known to such
counsel by which the Company or any Subsidiary is bound or by
which their assets may be affected; (iv) conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or give
rise to any right to accelerate the maturity or require the
prepayment of any indebtedness or the purchase of any capital
stock under, or result in the creation or imposition of any
lien, charge or encumbrance upon any material properties or
assets of the Guarantor or the Company, pursuant to the terms
of any agreement identified on a schedule to this opinion
(which schedule shall be in form and substance satisfactory to
the Underwriters and their counsel), except for such
conflicts, breaches, violations, defaults, accelerations,
repayments, repurchases, liens, charges or encumbrances that
would not have a Material Adverse Effect; or (v) based on such
counsel's review of the Applicable Laws, require any consent,
approval or authorization or order of, or qualification of or
with any governmental agency, except such as have been
obtained under the Securities Act and the Trust Indenture Act
and as may be required under state securities or Blue Sky laws
in connection with the offer and sale of the Securities;
(viii) the statements in the Prospectus under
"Description of Notes", insofar as such statements purport to
summarize certain provisions of the Securities and the
Indenture provide a fair summary of such provisions;
(ix) the Registration Statement and the Prospectus
(except for the financial statements, schedules and other
financial and statistical data, included in the Registration
Statement and the Prospectus, as to which counsel need not
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opine) appear on their face to be appropriately responsive in
all material respects to the requirements of the Securities
Act and the rules and regulations of the Commission
thereunder;
(x) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made
by the Guarantor or the Company prior to the Closing Date
(other than the financial statements, schedules and other
financial and statistical data included therein, as to which
such counsel need express no opinion), when they were filed
with the Commission, appear on their face to be appropriately
responsive in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder;
(xi) neither the Company nor the Guarantor is and,
after giving effect to the offering and sale of the
Securities, neither will be an "investment company" or an
entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act; and
(xii) the conditions for use of a Registration
Statement on Form S-3 set forth in the General Instructions to
Form S-3 have been satisfied with respect to the Company and
the Guarantor and the transactions contemplated by this
Agreement and the Registration Statement.
Such counsel shall also state that they have been advised by
the Commission that the Indenture has been qualified under the Trust
Indenture Act and that the Registration Statement became effective
under the Securities Act; that any required filings of the Prospectus
pursuant to Rule 424(b) have been made in the manner and within the
time period required by Rule 424(b); and that, based solely on
conversations with the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted, are pending or, to
such counsel's knowledge, are contemplated under the Securities Act.
Such counsel shall also state that no information has come to
such counsel's attention which causes such counsel to believe that the
Registration Statement (except the financial statements and schedules
and other financial and statistical data contained therein, as to which
such counsel need express no opinion), at the time it became effective,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or that the Prospectus, as of its
date and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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In rendering such opinions, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on originals
or copies certified or otherwise identified to such counsel's
satisfaction of corporate records of the Company and the Guarantor and
other instruments and other certificates of public officials, officers
and representatives of the Company and the Guarantor and other persons.
With respect to the matters to be covered in the immediately preceding
paragraphs, such counsel may state that the statements made in such
paragraphs are based upon participation of such counsel (in the course
of acting as special counsel to the Company in connection with the
preparation of the Registration Statement and Prospectus) in
conferences and telephone conversations with representatives of the
Company and the Guarantor, representatives of independent public
accountants for the Company and representatives of the Underwriters and
counsel for the Underwriters but without independent verification of
the accuracy, completeness or fairness of the statements made in the
Registration Statement and Prospectus, except as specified.
The opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx described
above shall be rendered to the Underwriters at the request of the
Company and the Guarantor and shall so state therein.
(h) on the effective date of the Registration Statement and
the effective date of the most recently filed post-effective amendment
to the Registration Statement, if any, and also on the Closing Date,
Coopers & Xxxxxxx L.L.P. with respect to the Company and the Guarantor
and Deloitte & Touche LLP with respect to Federal shall have furnished
to the Representatives letters, dated the respective dates of delivery
thereof, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
(i) the Representatives shall have received on and as of the
Closing Date an opinion of King & Spalding, counsel to the
Underwriters, with respect to the validity of the Indenture, the Notes
and the Guarantees, the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(j) on or prior to the Closing Date, each of the Company and
the Guarantor shall have furnished to the Representatives such further
certificates and documents as the Representatives shall reasonably
request.
7. The Company and the Guarantor agree, jointly and severally, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from
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and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company and the Guarantor shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
and the Guarantor in writing by such Underwriter through the Representatives
expressly for use therein; provided that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities
if such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus is eliminated or remedied in the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Guarantor, their respective directors, their
respective officers who sign the Registration Statement and each person who
controls the Company or the Guarantor within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company and the Guarantor to each Underwriter, but
only with reference to information relating to such Underwriter furnished to the
Company and the Guarantor in writing by such Underwriter expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus. For purposes of this Section 7 and paragraphs (a)
and (b) of Section 4 hereof, the only information furnished in writing by the
Underwriters to the Company and the Guarantor expressly for use in the
Registration Statement and the Prospectus is the information in the last
paragraph on the cover page of the Prospectus, the legend at the top of page 2
of the Prospectus and the list of underwriters set forth in the table under the
caption "Underwriting" in the Prospectus, the second paragraph and the second
sentence of the third paragraph following such table and the sixth paragraph
following such table.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying
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Person, upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may designate in such proceeding and shall
pay the reasonable fees and expenses of such counsel actually incurred by such
counsel related to such proceeding. In any such proceeding, any Indemnified
Person 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 Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person 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 Person shall not, in connection with any proceeding or related
proceeding 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 Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters and such control persons
of the Underwriters shall be designated in writing by X.X. Xxxxxx Securities
Inc. and any such separate firm for the Company, the Guarantor, their respective
directors, their respective officers who sign the Registration Statement and
such control persons of the Company and the Guarantor shall be designated in
writing by the Company and the Guarantor. The Indemnifying Person 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 Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses actually incurred by counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
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 Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages
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or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor on the one hand and the
Underwriters on the other hand 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 and
the Guarantor 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 and the Guarantor on the one hand and
the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the Company and the total underwriting discounts and the commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate public offering price of the
Securities. The relative fault of the Company and the Guarantor on the one hand
and the Underwriters on the other 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 and the Guarantor or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Guarantor and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
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The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of each of the Company and the Guarantor
set forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company or the Guarantor, their respective officers or
directors or any other person controlling the Company or the Guarantor and (iii)
acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company and the Guarantor, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the National Association of
Securities Dealers, Inc., (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iii) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and which,
in the judgment of the Representatives, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-tenth of such principal amount of
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Securities
which it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities to
be purchased on such date, and arrangements satisfactory to the Representatives
and the Company for the purchase of such
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Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Guarantor. In any such case either the Representatives or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters because
of any failure or refusal on the part of the Company or the Guarantor to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company or the Guarantor shall be unable to perform its
obligations under this Agreement or any condition of the Underwriters'
obligations cannot be fulfilled, the Company and the Guarantor agree, jointly
and severally, to reimburse the Underwriters for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Guarantor, the Underwriters, any controlling persons, officers
and directors referred to in Section 7 hereof and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000 (telefax:______); Attention: Syndicate Department. Notices to
the Company shall be given to it at Xxxxxx, Inc., 0000 Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000-0000, (telefax:______); Attention: Chief Financial
Officer, with a copy to the same address, Attention: General Counsel. Notices to
the Guarantor shall be given to it at Xxxxxx International, Inc., 0000 Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000-0000, (telefax:______); Attention: Chief
Financial Officer, with a copy to the same address, Attention: General Counsel.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
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14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
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If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
XXXXXX, INC.
By:_______________________
Title:
XXXXXX INTERNATIONAL, INC.
By:_______________________
Title:
Accepted: _________________, 1998
X.X. Xxxxxx Securities Inc.
Salomon Brothers Inc
Acting on behalf of themselves
and the several Underwriters
listed in Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
By:___________________________
Title:
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SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES TO
UNDERWRITER BE PURCHASED
----------- -------------
X.X. Xxxxxx Securities Inc.................................. $
Salomon Brothers Inc ......................................
------------
Total ............................................. $150,000,000
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ANNEX A
SIGNIFICANT SUBSIDIARIES
Xxxxxx, Inc.
BI Holdings Corp.
Xxxxxx Holdings, Ltd.
Xxxxxx Canada, Ltd.
Federal Cartridge Company
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ANNEX B
Between the respective dates as of which information is given in the
Registration Statement and the Prospectus and the date hereof, there has not
been any change in the capital stock or long-term debt of the Guarantor or any
of the Subsidiaries except (i) such changes as are disclosed therein and (ii)
the following:
(1) Changes in capital stock accounts resulting from the
conversion of shares of Class B Common Stock of the Guarantor into
shares of Class A Common Stock of the Guarantor pursuant to the By-Laws
of the Guarantor;
(2) Changes in capital stock resulting from the issuance of
shares of capital stock of the Guarantor pursuant to the exercise of
(i) options outstanding as of such dates or (ii) options issued between
such dates and the date hereof and exercised upon the retirement of the
grantees of such options;
(3) Changes in capital stock resulting from the repurchase by
the Guarantor of not more than ___shares of Class A Common Stock of the
Guarantor pursuant to its stock buyback program as announced prior to
the date of the Prospectus; and
(4) Changes in long-term debt not in excess of $____________.
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