Exhibit 1(e)
Xxxxxxx Xxxxx & Co., Inc.
Retail Notes
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
Dated as of : ,
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center Floor 00
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxxx Xxxxx & Co., Inc., a Delaware corporation (the "Company"),
confirms its agreement with Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
(the "Purchasing Agent") with respect to the issue and sale by the Company of
its Retail Notes Due Nine Months or More From Date of Issue (the "Notes"). The
Notes are to be issued pursuant to an Indenture, dated as of October 1, 1993, as
amended or modified from time to time (the "Indenture"), between the Company and
JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank, as trustee (the
"Trustee"). As of the date hereof, the Company has authorized the issuance and
sale of up to U.S. $ aggregate initial offering price of Notes to or
through the Purchasing Agent pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Purchasing Agent pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof. It is
further understood that the Company may issue one or more other series of its
Retail Notes, and that such securities are not included within the term "Notes"
as used in this Distribution Agreement.
This Agreement specifies terms and conditions on which Notes may be
sold by the Company (i) to the Purchasing Agent as principal for resale and (ii)
directly to investors through the Purchasing Agent as an agent of the Company in
soliciting offers for the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-________) [and
pre-effective amendment[s] no[s]_______. thereto] for the registration of
certain securities, including the Notes, under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the
Company has filed such post-effective amendments thereto as may be required
prior to its acceptance of any offer for the purchase of
Notes and each such post-effective amendment has been declared effective by the
Commission. Such registration statement (as so amended, if applicable, and any
further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) is referred to
herein as the "Registration Statement"; and the final prospectus and all
applicable amendments or supplements thereto (including the final prospectus
supplement and pricing supplement relating to the offering of Notes), in the
form first furnished to the Purchasing Agent for use in confirming sales of
Notes, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to any acceptance by the Company of an offer for the purchase
of Notes; provided, further, that if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to the "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the Registration Statement became effective and any
prospectus furnished by the Company after the registration statement became
effective and before any acceptance by the Company of an offer for the purchase
of Notes which omitted information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "disclosed", "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
SECTION 1. Appointment as Purchasing Agent.
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(a) Appointment. Subject to the terms and conditions stated herein and
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subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold exclusively to
or through the Purchasing Agent pursuant to the terms of this Agreement. The
Company agrees that it will not appoint any other agents to act on its behalf,
or to assist it, in the placement of the Notes.
(b) Sale of Notes. The Company shall not sell or approve the
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solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Purchasing Agent shall have no responsibility for
maintaining
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records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Purchasing Agent shall not have any
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obligation to purchase Notes from the Company as principal. However, absent an
agreement between the Purchasing Agent and the Company for the Purchasing Agent
to act as an agent for the Company, the Purchasing Agent shall be deemed to be
acting as principal in connection with any offering of Notes by the Company. Any
purchase of Notes from the Company by the Purchasing Agent as principal shall be
made in accordance with Section 3(a) hereof.
(d) Solicitations as Purchasing Agent. If agreed upon between the
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Purchasing Agent and the Company, the Purchasing Agent, acting solely as an
agent for the Company and not as principal, will solicit offers for the purchase
of Notes. The Purchasing Agent will communicate to the Company, orally, each
offer for the purchase of Notes solicited by it on an agency basis other than
those offers rejected by the Purchasing Agent. The Purchasing Agent shall have
the right, in its discretion reasonably exercised, to reject any offer for the
purchase of Notes, in whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein. The Company may accept or
reject any offer for the purchase of Notes which is communicated to it by the
Purchasing Agent, in whole or in part. The Purchasing Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer for the purchase of Notes has been solicited by it on an
agency basis and accepted by the Company. The Purchasing Agent shall not have
any liability to the Company in the event that any such purchase is not
consummated for any reason. If the Company shall default on its obligation to
deliver Notes to a purchaser whose offer has been solicited by the Purchasing
Agent on an agency basis and accepted by the Company, the Company shall (i) hold
the Purchasing Agent harmless against any loss, claim or damage arising from or
as a result of such default by the Company and (ii) pay to the Purchasing Agent
any commission to which it would otherwise be entitled absent such default.
(e) Reliance. The Company and the Purchasing Agent agree that any Notes
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purchased from the Company by the Purchasing Agent as principal shall be
purchased, and any Notes the placement of which the Purchasing Agent arranges as
an agent of the Company shall be placed by the Purchasing Agent, in reliance on
the representations, warranties, covenants and agreements of the Company
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to the Purchasing Agent as of
the date hereof, as of the date of each acceptance by the Company of an offer
for the purchase of Notes (whether to the Purchasing Agent as principal or
through the Purchasing Agent as agent), as of the date of each delivery of Notes
(whether to the Purchasing Agent as principal or through the Purchasing Agent as
agent) (the date of each such delivery to the Purchasing Agent as principal
being hereafter referred to as a "Settlement Date"), and as of any time that the
Registration Statement or the Prospectus shall be amended or supplemented or
there is filed with the Commission any document incorporated by reference into
the Prospectus (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
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(i) Due Incorporation and Qualification. The Company has been duly
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incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify and
be in good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company listed in Exhibit No.
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21 to the Company's annual report on Form 10-K filed with the Commission under
Section 13 of the 1934 Act for the Company's most recent fiscal year (the
"Annual Report on Form 10-K") which is a significant subsidiary (each, a
"Significant Subsidiary") as defined in Rule 1-02 of Regulation S-X of the 1933
Act has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify and be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise; and
all of the issued and outstanding capital stock of each Significant Subsidiary
has been duly authorized and validly issued, is fully paid and non-assessable
and, except for directors' qualifying shares, is owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. At the time the
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Registration Statement became effective, the Registration Statement complied,
and as of each applicable Representation Date will comply, in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission promulgated
thereunder. The Registration Statement, at the time it became effective, did
not, and at each time thereafter at which any amendment to the Registration
Statement becomes effective or any Annual Report on Form 10-K is filed by the
Company with the Commission and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does not, and as of each
Representation Date will not, contain an untrue statement of a 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;
provided, however, that the representations and warranties in this subsection
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shall not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Company in writing by the Purchasing Agent expressly for
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use in the Registration Statement or Prospectus or to that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification under the 1939 Act (Form T-1) of the trustee under the Indenture.
(iv) Incorporated Documents. The documents incorporated by reference in
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the Prospectus, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the rules and
regulations promulgated thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the Prospectus, did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were or are made,
not misleading.
(v) Accountants. The accountants who certified the financial statements
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included or incorporated by reference in the Prospectus are independent public
accountants within the meaning of the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements and any supporting
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schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the consolidated results
of their operations for the periods specified; and, except as stated therein,
said financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent
basis during the periods involved, except as indicated therein; and the
supporting schedules included in the Registration Statement present fairly the
information required to be stated therein.
(vii) Authorization and Validity of this Agreement, the Indenture and
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the Notes. This Agreement has been duly authorized, executed and delivered by
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the Company and, upon execution and delivery by the Purchasing Agent, will be a
valid and legally binding agreement of the Company; the Notes have been duly and
validly authorized for issuance, offer and. sale pursuant to this Agreement and,
when issued, authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against payment of the consideration therefor
specified in the Prospectus or agreed upon pursuant to the provisions of this
Agreement, the Notes will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors' rights generally
or by general equity principles, except further as enforcement thereof may be
limited by (i) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit judgment in
respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (ii) governmental
authority to limit, delay or prohibit the making of payments outside the United
States; the Notes and the Indenture will be substantially in the form heretofore
delivered to the Purchasing Agent
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and conform in all material respects to all statements relating thereto
contained in the Prospectus; and each holder of Notes will be entitled to the
benefits of the Indenture.
(viii) Material Changes or Material Transactions. Since the respective
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dates as of which information is given in the Registration Statement and the
Prospectus, except as may otherwise be stated therein or contemplated thereby,
(a) there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business and (b) there have been no material
transactions entered into by the Company or any of its subsidiaries other than
those in the ordinary course of business.
(ix) No Defaults Regulatory Approvals. Neither the Company nor any of
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its Significant Subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or any of them
or their properties may be bound; the execution and delivery of this Agreement
and the Indenture and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action and will
not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its Significant Subsidiaries is a party or by which it or
any of them may be bound or to which any of the property or assets of the
Company or any such Significant Subsidiary is subject, nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or any law, administrative regulation or administrative or court order
or decree; and no consent, approval, authorization, order or decree of any court
or governmental agency or body is required for the consummation by the Company
of the transactions contemplated by this Agreement or in connection with the
sale of Notes hereunder, except such as have been obtained or rendered, as the
case may be, or as may be required under state securities ("Blue Sky") laws.
(x) Certificates; Regulatory Agencies. The Company and its Significant
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Subsidiaries possess adequate certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, and neither the Company nor any of
its Significant Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the conduct of the
business, operations, financial condition or income of the Company and its
subsidiaries considered as one enterprise.
(xi) Trademarks. The Company and its Significant Subsidiaries own or
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possess, or can acquire on reasonable terms, adequate trademarks, service marks
and trade names necessary to conduct the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict
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with asserted rights of others with respect to any trademarks, service
marks or trade names which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as
one enterprise.
(xii) Legal Proceedings; Contracts. Except as may be set forth
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in the Registration Statement, 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 subsidiaries, which
might, in the opinion of the Company, result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might materially
and adversely affect the consummation of this Agreement or any
transaction contemplated hereby or thereby; and there are no contracts
or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(xiii) Employees. No labor dispute by the employees of the
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Company or any subsidiary exists or, to the knowledge of the Company,
is imminent which might be expected to have a material adverse effect
upon the conduct of the business, or the earnings, operations or
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise.
(xiv) Commodity Exchange Act. The Notes, when issued,
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authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture will be excluded or exempted under the
provisions of the Commodity Exchange Act.
(b) Additional Certifications. Any certificate signed by any
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director or officer of the Company and delivered to
the Purchasing Agent or to counsel for the Purchasing Agent in connection with
an offering of Notes to the Purchasing Agent as principal or through the
Purchasing Agent as agent shall be deemed a representation and warranty by the
Company to the Purchasing Agent as to the matters covered thereby on the date of
such certificate and at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Purchasing Agent.
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(a) Purchases as Principal. Unless otherwise agreed by the Purchasing
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Agent and the Company, Notes purchased from the Company by the Purchasing Agent
as principal shall be made in accordance with terms agreed upon between the
Purchasing Agent and the Company (which terms, unless otherwise agreed, shall,
to the extent applicable, include those terms specified in Exhibit A hereto and
shall be agreed upon orally, with written confirmation prepared by the
Purchasing Agent and delivered to the Company). The Purchasing Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Unless the
context otherwise requires, references herein to "this
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Agreement" shall include the applicable agreement of the Purchasing Agent to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Purchasing Agent may engage the services of any broker or dealer in connection
with the resale of the Notes purchased by it as principal or allow all or any
portion of the discount received by it in connection with such purchases to any
broker or dealer. At the time of each purchase of Notes from the Company by the
Purchasing Agent as principal, the Purchasing Agent shall specify the
requirements for the officers' certificate, opinion of counsel and comfort
letter pursuant to Sections 7(b), 7(c) and 7(d) hereof.
(b) Solicitations as Purchasing Agent. On the basis of the
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representations and warranties herein contained, but subject to the terms and
conditions herein set forth, when agreed by the Company and the Purchasing
Agent, the Purchasing Agent, as an agent of the Company, will use its reasonable
efforts to solicit offers for the purchase of Notes upon the terms set forth in
the Prospectus. The Purchasing Agent is authorized to appoint any sub-agent with
respect to solicitations of offers to purchase Notes. All Notes sold through the
Purchasing Agent as agent will be sold at 100% of their principal amount unless
otherwise agreed upon between the Company and the Purchasing Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through the Purchasing Agent,
as an agent of the Company, commencing at any time for any period of time or
permanently. As soon as practicable after receipt of instructions from the
Company and the Purchasing Agent, the Purchasing Agent will suspend solicitation
of offers for the purchase of Notes from the Company until such time as the
Company has advised the Purchasing Agent that such solicitation may be resumed.
The Company agrees to pay the Purchasing Agent, as consideration for
soliciting offers to purchase Notes as an agent of the Company, a commission, in
the form of a discount, equal to the applicable percentage of the principal
amount of each Note sold by the Company as a result of any such solicitation
made by the Purchasing Agent, as set forth in Schedule A hereto unless otherwise
agreed.
(c) Administrative Procedures. The purchase price, interest rate or
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formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the
Purchasing Agent and specified in a pricing supplement to the Prospectus (each,
a "Pricing Supplement") to be prepared by the Company in connection with each
sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the issuance and sale of the Notes (the "Procedures")
shall be agreed upon from time to time among the Company, the Purchasing Agent
and the Trustee. The Purchasing Agent and the Company agree to perform, and the
Company agrees to cause the Trustee to agree to perform, their respective duties
and obligations specifically provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
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The Company covenants and agrees with the Purchasing Agent as follows:
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(a) Notice of Certain Events. The Company will notify the Purchasing
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Agent immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
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Purchasing Agent advance notice of its intention to file or prepare any
additional registration statement with respect to the registration of additional
Notes, any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement providing
solely for a change in the interest rates of Notes), whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish
the Purchasing Agent with copies of any such amendment or supplement or other
documents proposed to be filed or prepared a reasonable time in advance of such
proposed filing or preparation, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which the Purchasing
Agent or counsel for the Purchasing Agent shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
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Company will deliver to the Purchasing Agent as many signed and conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as the Purchasing
Agent may reasonably request. The Company will furnish to the Purchasing Agent
as many copies of the Prospectus (as amended or supplemented) as the Purchasing
Agent shall reasonably request so long as the Purchasing Agent is required to
deliver a Prospectus in connection with sales or solicitations of offers to
purchase the Notes. The Registration Statement, the Prospectus and any
amendments or supplements thereto furnished to the Purchasing Agent will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX to the extent permitted by Regulation S-T.
(d) Preparation of Pricing Supplements. The Company will prepare, with
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respect to any Notes to be sold through or to the Purchasing Agent pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Purchasing Agent and will file such Pricing
Supplement pursuant to Rule 424(b)(3) under the 1933 Act.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
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provided in subsection (1) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Purchasing Agent or
counsel for the Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or
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if it shall be necessary, in the reasonable opinion of either such counsel, to
amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given, and confirmed in writing, to the Purchasing
Agent to cease the solicitation of offers to purchase the Notes in the
Purchasing Agent's capacity as agent and to cease sales of any Notes the
Purchasing Agent may then own as principal, and the Company will promptly amend
the Registration Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
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otherwise provided in subsection (1) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such information to
the Purchasing Agent, confirmed in writing, and shall cause the Prospectus to be
amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations. (g)
Prospectus Revisions -- Audited Financial Information. Except as otherwise
provided in subsection (1) of this Section 4, on or prior to the date on which
there shall be released to the general public financial information included in
or derived from the audited financial statements of the Company for the
preceding fiscal year, the Company shall cause the Registration Statement and
the Prospectus to be amended, whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, to include or incorporate by reference such
audited financial statements and the report or reports, and consent or consents
to such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
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otherwise provided in subsection (1) of this Section 4, on or prior to the date
on which shall be released to the general public financial information included
in or derived from the audited financial statements of the Company for the
preceding fiscal year, the Company shall cause the Registration Statement and
the Prospectus to be amended, whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, to include or incorporate by reference such
audited financial statements and the report or reports, and consent or consents
to such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally available to
-------------------
its security holders as soon as practicable, an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
-----------------------
with the Purchasing Agent, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Purchasing Agent may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will promptly
advise the Purchasing Agent of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes for sale in any
such state or jurisdiction or the initiating or threatening of any proceeding
for such purpose.
10
(j) 1934 Act Filings. The Company, during the period when the
----------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file promptly all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(k) Stand-Off Agreement. If agreed by the Purchasing Agent and the
-------------------
Company in connection with a purchase by the Purchasing Agent of Notes as
principal, between the date of the agreement to purchase such Notes and the
Settlement Date with respect to such purchase, the Company will not, without the
Purchasing Agent's prior written consent, offer or sell, or enter into any
agreement to sell, any debt securities of the Company (other than the Notes that
are to be sold pursuant to such agreement and commercial paper in the ordinary
course of business).
(l) Suspension of Certain Obligations. The Company shall not be
---------------------------------
required to comply with the provisions of subsection (e), (f) or (g) of this
Section 4 during any period from the time (i) the Purchasing Agent shall have
suspended solicitation of purchases of the Notes in its capacity as agent
pursuant to a request from the Company and (ii) the Purchasing Agent shall not
then hold any Notes purchased as principal pursuant hereto, until the time the
Company shall determine that solicitation of purchases of the Notes should be
resumed or the Purchasing Agent shall subsequently purchase Notes from the
Company as principal.
SECTION 5. Conditions of Purchasing Agent's Obligations.
--------------------------------------------
The obligations of the Purchasing Agent to purchase Notes from the
Company as principal, the obligations of the Purchasing Agent to solicit offers
for the purchase of Notes as an agent of the Company and the obligations of any
purchasers of Notes sold through the Purchasing Agent as an agent of the
Company, will be subject to the accuracy of the representations and warranties
on the part of the Company herein contained or contained in any certificate of
an officer of the Company or any of its subsidiaries delivered pursuant to the
provisions hereof, to the performance and observance by the Company of its
covenants and other obligations hereunder, and to the following additional
conditions precedent:
(a) Effectiveness of Registration Statement. The Registration Statement
---------------------------------------
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Purchasing Agent.
(b) Legal Opinion. On the date hereof, the Purchasing Agent shall have
-------------
received the legal opinion of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Company, dated as of the date hereof and in form and substance satisfactory to
the Purchasing Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement.
11
(iii) To the best of their knowledge and information, the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required and in which failure of the Company to be so
qualified and in good standing would have a material adverse effect
upon the Company and its subsidiaries considered as a single
enterprise.
(iv) Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
("MLPF&S") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement, and, to the best of such counsel's knowledge, is duly
qualified as a foreign corporation to transact business and is in good
standing in the State of New York; MLPF&S is a Controlled Subsidiary of
the Company, as such term is defined in the Indenture; all of the
issued and outstanding capital stock of MLPF&S has been duly authorized
and validly issued, is fully paid and non-assessable, and all of such
capital stock owned by the Company, to the best of their knowledge, is
owned by the Company, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(v) This Agreement, and, if applicable, the Terms Agreement,
have been duly and validly authorized, executed and delivered by the
Company.
(vi) The Indenture has been duly and validly authorized,
executed and delivered by the Company and (assuming the Indenture has
been duly authorized, executed and delivered by the Trustee)
constitutes the legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors' rights
generally, or by general equity principles, and except further as
enforcement thereof may be limited by (A) requirements that a claim
with respect to any Notes under the Indenture denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit judgment
in respect of such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or (B) governmental authority to limit, delay or prohibit the
making of payments in foreign currency or currency units or payments
outside the United States.
(vii) The Notes, in the forms certified by the Company as of
the date hereof are in the forms contemplated by the Indenture, have
been duly and validly authorized by all necessary corporate action and,
when executed and authenticated as specified in the Indenture and
delivered against payment pursuant to this Agreement, will be valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally or
by general equity principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign currency or
foreign currency unit judgment in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay
12
or prohibit the making of payments in foreign currency or currency
units or payments outside the United States, and each holder of Notes
will be entitled to the benefits of the Indenture.
(viii) The Indenture and the Notes conform in all material
respects to the descriptions thereof in the Prospectus.
(ix) The Indenture is qualified under the 1939 Act.
(x) The Registration Statement is effective under the 1933 Act
and, to the best of their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the
Commission.
(xi) The Registration Statement, at the time it became
effective (other than the financial statements included therein, as to
which no opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act, the 1939 Act and the
regulations under each of those Acts.
(xii) No consent, approval, authorization, or order of any
court or governmental authority or agency is required in connection
with the sale of the Notes, except such as have been obtained under the
1933 Act and state securities laws; and, to the best of their knowledge
and information, the execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated herein
and therein will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company,
or any law, administrative regulation or administrative or court
decree.
(xiii) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus complied when filed as to
form in all material respects with the 1934 Act and the 1934 Act
Regulations thereunder.
(xiv) The Notes, in the form(s) certified by the Company as of
the date hereof, when issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture, will be excluded or
exempted from the provisions of the Commodity Exchange Act, assuming
the accuracy of any certifications of factual matters furnished by the
Purchasing Agent or the Company in connection with the issuance
thereof.
In giving their opinion, Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, or such other counsel
satisfactory to the Purchasing Agent, shall additionally state that nothing has
come to their attention that would lead them to believe that the Registration
Statement, at the time it became effective or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness of the Registration
13
Statement, then at the time of the most recent such filing, or at the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the Prospectus, as
amended or supplemented at the date hereof, or (if such opinion is being
delivered in connection with the purchase of Notes by the Purchasing Agent as
principal pursuant to Section 7(c) hereof) at the date of any agreement by the
Purchasing Agent to purchase Notes as principal and at the Settlement Date with
respect thereto, as the case may be, contained or contains an untrue statement
of a material fact or omitted or omits 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.
(c) Officer's Certificate. On the date hereof, there shall not have
---------------------
been, since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Purchasing Agent shall have
received a certificate of the President or a Vice President or the Treasurer and
the chief financial officer or chief accounting officer of the Company, dated as
of the date hereof, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company herein
contained are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv) 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 the best of such officer's knowledge, are threatened by the Commission.
(d) Comfort Letter. On the date hereof, the Purchasing Agent shall have
--------------
received a letter from Deloitte & Touche LLP, dated as of the date hereof and in
form and substance satisfactory to the Purchasing Agent, to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedule(s) of the Company and its subsidiaries audited
or reviewed by them and included or incorporated by reference in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim financial statements of the Company and its indicated
subsidiaries, a reading of the minute books of the Company and such
subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of the Company and such subsidiaries responsible
for financial and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated by reference
in the
14
Registration Statement and Prospectus and the latest available interim
unaudited financial statements of the Company and its subsidiaries, and
such other inquiries and procedures as may be specified in such letter,
and on the basis of such inquiries and procedures nothing came to their
attention that caused them to believe that: (A) the unaudited
consolidated financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement and
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the 1934 Act
Regulations or were not fairly presented in conformity with generally
accepted accounting principles in the United States applied on a basis
substantially consistent with that of the audited financial statements
included or incorporated by reference therein, or (B) at a specified
date not more than five days prior to the date of such letter, there
was any change in the consolidated capital stock or any increase in
consolidated long-term debt of the Company and its subsidiaries or any
decrease in the consolidated net assets of the Company and its
subsidiaries, in each case as compared with the amounts shown on the
most recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus or, during the period from the date of such
balance sheet to a specified date not more than five days prior to the
date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues or
net income of the Company and its subsidiaries, except in each such
case as set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as
shall have been agreed to by the Purchasing Agent and the Company.
(iv) In addition to the audit or review referred to in their
report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain amounts,
percent-ages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Purchasing Agent, and have found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(e) Additional Documents. On the date hereof, counsel to the Purchasing
--------------------
Agent shall have been furnished with such documents and opinions as such counsel
may require for the purpose of enabling such counsel to pass upon the issuance
and sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Purchasing Agent
and to counsel to the Purchasing Agent.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Purchasing Agent by notice to the Company at any time and any such
termination shall be without liability of any party to any
15
other party except as provided in Section 10 hereof and except that Sections 8,
9, 11, 14 and 15 hereof shall survive any such termination and remain in full
force and effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Purchasing Agent
-------------------------------------------------------------------
as Agent.
--------
Delivery of Notes sold through the Purchasing Agent as an agent of the
Company shall be made by the Company to the Purchasing Agent for the account of
any purchaser only against payment therefor in immediately available funds. In
the event that a purchaser shall fail either to accept delivery of or to make
payment for a Note on the date fixed for settlement, the Purchasing Agent shall
promptly notify the Company and deliver such Note to the Company and, if the
Purchasing Agent has theretofore paid the Company for such Note, the Company
will promptly return such funds to the Purchasing Agent. If such failure has
occurred for any reason other than default by the Purchasing Agent in the
performance of its obligations hereunder, the Company will reimburse the
Purchasing Agent on an equitable basis for its loss of the use of the funds for
the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company further covenants and agrees with the Purchasing Agent as
follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
-----------------------------------------------
the Company of an offer for the purchase of Notes (whether to the Purchasing
Agent as principal or through the Purchasing Agent as agent), and each delivery
of Notes (whether to the Purchasing Agent as principal or through the Purchasing
Agent as agent), shall be deemed to be an affirmation that the representations
and warranties of the Company herein contained and contained in any certificate
theretofore delivered to the Purchasing Agent pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the Purchasing Agent or to the purchaser or its agent,
as the case may be, of the Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (it being understood
that such representations and warranties shall relate to the Registration
Statement and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by the Purchasing Agent as principal) the Company sells
Notes to the Purchasing Agent as principal or (iii) the Company sells Notes in a
form not previously certified to the Purchasing Agent by the Company, the
Company shall furnish or cause to be furnished to the Purchasing Agent,
forthwith a certificate dated the date of filing with the Commission or the date
of effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form satisfactory to the Purchasing Agent to
the effect that the statements contained in the certificate referred to in
Section 5(c) hereof which were last furnished to the Purchasing Agent are true
and correct at the time of the filing or effectiveness of such amendment or
supplement, as applicable, or the time of such sale, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the
16
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(c) hereof, modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by the Purchasing Agent as principal) the Company sells
Notes to the Purchasing Agent as principal or (iii) the Company sells Notes in a
form not previously certified to the Purchasing Agent by the Company, the
Company shall furnish or cause to be furnished forthwith to the Purchasing Agent
and to counsel to the Purchasing Agent the written opinion of Xxxxxx Xxxxxx
Xxxxx & Xxxx LLP, counsel to the Company, or other counsel satisfactory to the
Purchasing Agent, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form and substance satisfactory to the
Purchasing Agent, of the same tenor as the opinion referred to in Section 5(b)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion or, in lieu of such opinion, counsel last furnishing such opinion to the
Purchasing Agent shall furnish the Purchasing Agent with a letter substantially
to the effect that the Purchasing Agent may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes) or (ii) (if required in connection with the purchase of Notes
from the Company by the Purchasing Agent as principal) the Company sells Notes
to the Purchasing Agent as principal, the Company shall cause Deloitte & Touche
LLP forthwith to furnish to the Purchasing Agent a letter, dated the date of
filing with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
satisfactory to the Purchasing Agent, of the same tenor as the letter referred
to in Section 5(d) hereof but modified to relate to the Registration Statement
and Prospectus as amended and supplemented to the date of such letter; provided,
however, that if the Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, Deloitte & Touche LLP may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement unless
any other information included therein of an accounting, financial or
statistical nature is of such a nature that, in the reasonable judgment of the
Purchasing Agent, such letter should cover such other information.
17
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Purchasing Agent. The Company agrees to
---------------------------------------
indemnify and hold harmless the Purchasing Agent and each person, if any, who
controls the Purchasing Agent within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 8(d) hereof) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Purchasing Agent), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Purchasing Agent expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. The Purchasing
--------------------------------------------------
Agent severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 8(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the
18
Purchasing Agent expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
-------------------------------------
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 8(a) hereof,
counsel to the indemnified parties shall be selected by the Purchasing Agent
and, in the case of parties indemnified pursuant to Section 8(b) hereof, counsel
to the indemnified shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
--------
however, that counsel to the indemnifying party shall not (except with the
-------
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
--------------------------------------------------
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 9. Contribution.
------------
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Purchasing Agent shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity
19
agreement incurred by the Company and the Purchasing Agent, as incurred, in such
proportions that the Purchasing Agent is responsible for that portion
represented by the percentage that the total commissions and underwriting
discounts received by the Purchasing Agent to the date of such liability bears
to the total sales price from the sale of Notes sold to or through the
Purchasing Agent to the date of such liability, and the Company is responsible
for the balance; provided, however, that no person guilty of fraudulent
-------- -------
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 9, each person, if any, who controls the
Purchasing Agent within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Purchasing
Agent, and each director of the Company, each officer of the Company who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration
Statement as originally filed and all amendments thereto and any preliminary
prospectus, the Prospectus and any amendments or supplements thereto;
(b) The preparation, printing and delivery of this Agreement and the
Indenture;
(c) The preparation, issuance and delivery of the Notes, including any
fees and expenses relating to the eligibility and issuance of Notes in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Notes;
(d) The fees and disbursements of the Company's accountants, counsel
and other advisors or agents (including any calculation agent or exchange rate
agent) and of the Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the Purchasing
Agent incurred in connection with the establishment of the Program and incurred
from time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(h) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including the filing fees
incident to, and the reasonable fees
20
and disbursements to counsel to the Purchasing Agent in connection with, the
preparation of any Blue Sky Survey and any Legal Investment Survey.
(i) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Purchasing Agent in connection with, the review,
if any, by the National Association of Securities Dealers, Inc. (the "NASD");
and
(j) Any advertising and other out-of-pocket expenses of the Purchasing
Agent incurred with the approval of the Company.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Purchasing Agent or any controlling person of the Purchasing Agent, or by or
on behalf of the Company, and shall survive each delivery of and payment for the
Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any
-----------------------------
agreement by the Purchasing Agent to purchase Notes from the Company as
principal) may be terminated for any reason, at any time by either the Company
or the Purchasing Agent, upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
-------------------------------------------------------
Purchasing Agent may terminate any agreement by the Purchasing Agent to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time on or prior to the Settlement Date relating thereto, if (i) there has
been, since the date of such agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development or event involving a prospective
change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment of the
Purchasing Agent, impracticable to market such Notes or enforce contracts for
the sale of such Notes, or (iii) trading in any securities of the Company has
been suspended or materially limited by the Commission or a national securities
exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities, or (v) the rating assigned by any nationally recognized
statistical rating organization to the Program or any debt securities (including
the Notes) of the Company as of the date of such agreement shall have been
lowered or withdrawn since that date
21
or if any such rating organization shall have publicly announced that it has
under surveillance or review its rating of the Program or any such debt
securities, or (vi) there shall have come to the attention of the Purchasing
Agent any facts that would cause the Purchasing Agent to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of such
Notes, included 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 existing at the time of such delivery, not misleading.
(c) General. In the event of any such termination, neither party will
-------
have any liability to the other party hereto, except that (i) the Purchasing
Agent shall be entitled to any commissions earned in accordance with the third
paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) the
Purchasing Agent shall own any Notes purchased by it from the Company as
principal or (b) an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or his agent of such Notes
relating thereto has not occurred, the covenants set forth in Sections 4 and 7
hereof shall remain in effect until such Notes are so resold or delivered, as
the case may be, and (iii) the covenant set forth in Section 4(i) hereof, the
provisions of Section 10 hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15
hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Xxxxxxx Xxxxx & Co., Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, New York 10080
Attention: Treasury
Telecopy No.: (000) 000-0000
If to the Purchasing Agent:
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center Floor 00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Management Group
Telecopy No.: (000) 000-0000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
22
SECTION 14. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the
Purchasing Agent and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons, officers and directors
referred to in Sections 8 and 9 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons, officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase.
SECTION 15. GOVERNING LAW; FORUM.
--------------------
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE COMPANY AGAINST THE PURCHASING AGENT IN CONNECTION
WITH OR ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR
FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN,
THE CITY OF NEW YORK.
SECTION 16. Effect of Headings.
------------------
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 17. Counterparts.
------------
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
23
If the foregoing is in accordance with the Purchasing Agent's
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this Distribution Agreement, along with all
counterparts, will become a binding agreement between the Purchasing Agent and
the Company in accordance with its terms.
Very truly yours,
XXXXXXX XXXXX & CO., INC.
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Authorized Signatory
SCHEDULE A
The Company shall pay the Purchasing Agent, on a discount basis, a
commission for the sale of each Note equal to the principal amount of such Note
multiplied by the appropriate percentage set forth below.
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year ............................................. ____%
From 1 year to less than 18 months ............................................ ____
From 18 months to less than 2 years ........................................... ____
From 2 years to less than 3 years ............................................. ____
From 3 years to less than 4 years ............................................. ____
From 4 years to less than 5 years ............................................. ____
From 5 years to less than 6 years ............................................. ____
From 6 years to less than 7 years ............................................. ____
From 7 years to less than 10 years ............................................ ____
From 10 years to less than 15 years ........................................... ____
From 15 years to less than 20 years ........................................... ____
From 20 years to 30 years ..................................................... ____
Greater than 30 years ......................................................... ____*
-------------------------------
* As agreed to by the Company and the Purchasing Agent at the time of sale.
Sch A-1
EXHIBIT A
PRICING TERMS
Retail Notes
Principal Amount: $___________
Interest Rate:
Interest Payment Dates:
Redemption Dates:
Optional Repayment Date(s):
Survivor's Option:
Original Issue Date:
Stated Maturity Date:
Authorized Denomination:
Issue Price:
[Price to Public: ____%, plus accrued interest, if any, from ___________]
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by the
Purchasing Agent as principal, agreement as to whether the following will be
required:
Officers' Certificate pursuant to Section 7(b) of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
--------------------------------------
Authorized Signatory
ACCEPTED
XXXXXXX XXXXX & CO., INC.
---------------------------------
Name:
Title:
A-1
