1
EXHIBIT 1(b)
XXXXXXXX-XXXXXX INDUSTRIES, INC.
$250,000,000
6.08% MARKET VALUE PUT SECURITIES(SM)
UNDERWRITING AGREEMENT
January 12, 1999
Xxxxxxxx-Xxxxxx Industries, Inc.
000 X. Xxxxxxxx
Xxxxxxx, Xxxxx 00000
Dear Sirs:
We (the "Underwriters") understand that Xxxxxxxx-Xxxxxx Industries,
Inc., a Delaware corporation (the "Company"), proposes to issue and sell
$250,000,000 aggregate principal amount of its 6.08% Market Value Put
securities(SM) (the "Underwritten Securities"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the principal amounts of Underwritten Securities set forth below
opposite their respective names:
-------------------------------------- ---------------------
UNDERWRITER PRINCIPAL AMOUNT
First Chicago Capital Markets, Inc..................... $ 125,000,000
Chase Securities Inc................................... 67,500,000
NationsBanc Xxxxxxxxxx Securities LLC.................. 67,500,000
-------------
Total......................................... $ 250,000,000
=============
The Underwritten Securities shall be issued under the Restated
Indenture, dated as of September 1, 1991, as amended (the "Indenture"), between
the Company and Chase Bank of Texas, National Association (successor to Texas
Commerce Bank National Association, as successor trustee to First City,
Texas--Houston, National Association, formerly First City National Bank of
Houston), as trustee (the "Trustee"), and shall have the terms set forth in the
form of the Underwritten Security attached hereto as Exhibit A.
Delivery Date and closing location: The Underwritten Securities will be
delivered in book-entry form only through the facilities of The Depository Trust
Company, on January 15, 1999 (the third business date following the date of this
Underwriting Agreement), with the closing of such transaction to take place at
the offices of the Company indicated above.
Public offering price: The Underwriters will sell the Underwritten
Securities to the public at varying prices relating to prevailing market prices
at the time of sale.
Purchase price: 100.43% of the principal amount of the Underwritten
Securities (0.58% of which is payable solely by First Chicago Capital Markets,
Inc.), plus accrued interest, if any, from January 15, 1999 to the Delivery Date
(payable in same-day funds).
Arrangements, if any, with respect to Delayed Delivery Contracts: None
------------------------
"Market Value Put securities(SM)" is a service xxxx owned by First Chicago
Capital Markets, Inc.
2
Information in the Interim Prospectus and the Prospectus (each as
hereinafter defined) which has been furnished by Underwriters for inclusion
therein: The information in the first sentence of the penultimate paragraph on
the cover page of both the Interim Prospectus and the Prospectus relating to the
price to the public and the information set forth in the second, third and
fourth paragraphs under the caption "Underwriting" in both the Interim
Prospectus and the Prospectus.
Other terms and conditions: All references to "Registration Statement"
in this Underwriting Agreement and in the Underwriting Agreement Provisions
attached hereto as Exhibit B (the "Underwriting Agreement Provisions") shall
mean the Registration Statement on Form S-3 (No. 33-65055) filed with the
Securities and Exchange Commission (the "Commission") on December 15, 1995
(including all documents incorporated by reference), as amended or supplemented
at the date of this Underwriting Agreement.
Similarly, all references to "Prospectus" in this Underwriting
Agreement and in the Underwriting Agreement Provisions shall mean the Basic
Prospectus of the Company dated January 11, 1996, as supplemented by the
Prospectus Supplement of the Company dated January 12, 1999 (including in each
case all documents incorporated therein by reference), in the form filed with
the Commission pursuant to Rule 424 of the Rules and Regulations, and all
references to the "Interim Prospectus" in this Underwriting Agreement and in the
Underwriting Agreement Provisions shall mean such Basic Prospectus as
supplemented by the preliminary prospectus supplement of the Company dated
January 6, 1999 (including in each case all documents incorporated therein by
reference), in the form filed with the Commission pursuant to such Rule 424. The
references to "Preliminary Prospectus" in clause (iii) of the proviso to Section
8(a) of the Underwriting Agreement Provisions shall be deemed to be references
to the Interim Prospectus.
Notwithstanding Section 7(j) of the Underwriting Agreement Provisions,
the Company hereby agrees to pay all fees and expenses of counsels to the
Underwriters in connection with the offering and sale of the Underwritten
Securities.
The legal opinions to be delivered pursuant to Sections 10(c) and 10(e)
of the Underwriting Agreement Provisions shall include, in addition to those
opinions contemplated by such Section, the following opinions relating to the
Underwritten Securities:
"The Remarketing and Interest Calculation Agreement has been
duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery thereof by
each of the Call Holder and the Calculation Agent,
constitutes, under the laws of the State of New York, a legal,
valid and binding agreement of the Company, enforceable in
accordance with its terms, except (A) as such enforceability
may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other laws affecting
creditors' rights generally, (B) that the remedy of specific
performance and injunctive and other forms of equitable relief
are subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor
may be brought, and (C) as such enforceability may be subject
to limitations on rights to indemnity or contribution or both
by federal or state securities laws or the public policies
underlying such laws."
"The Underwritten Securities are in a form contemplated by the
Indenture and have been authorized by all necessary corporate
action by the Company, and, when the Underwritten Securities
have been duly executed, authenticated and delivered against
payment therefor in accordance with the Indenture and the
Underwriting Agreement, the Underwritten Securities will be
legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except (A) as such enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other laws affecting creditors' rights generally
and (B) that the remedy of specific performance and injunctive
and other forms of equitable relief are subject to certain
equitable
-2-
3
defenses and to the discretion of the court before which any
proceeding therefor may be brought."
The letter of Xxxxxx Xxxxxxxx LLP referred to in Section 10(f) of the
Underwriting Agreement Provisions shall be dated the Delivery Date, and the
"subsequent specified date" referred to in Section 10(f)(iii)(B) of the
Underwriting Agreement Provisions shall be January 12, 1999.
All references in the Underwriting Agreement Provisions to
"Representatives" shall be deemed to refer to the Underwriters named herein. Any
notice by the Company to the Underwriters given pursuant to this Underwriting
Agreement shall be addressed to the Underwriters, c/o First Chicago Capital
Markets, Inc., Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
(Attention: Corporate Securities Structuring).
All the provisions contained in the Underwriting Agreement Provisions,
as modified by the terms and provisions set forth above, are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
Underwriting Agreement to the same extent as if such provisions had been set
forth in full herein. Terms defined in such document are used herein as therein
defined.
Please accept this offer no later than 7:00 o'clock P.M. on January 12,
1999, by signing a copy of this Underwriting Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
FIRST CHICAGO CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Vice President
Accepted:
XXXXXXXX-XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxx
Treasurer
-3-
