EXHIBIT 1.1
EXECUTION COPY
SYSCO CORPORATION
DEBT SECURITIES
-----------------------
UNDERWRITING AGREEMENT
September 19, 2005
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
From time to time SYSCO Corporation, a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"), less the principal amount of Designated
Securities covered by Delayed Delivery Contracts (as defined in Section 3
hereof), if any, as provided in Section 3 hereof and as may be specified in
Schedule II to such Pricing Agreement (with respect to such Pricing Agreement,
any Designated Securities to be covered by Delayed Delivery Contracts are herein
sometimes referred to as "Contract Securities" and the Designated Securities to
be purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) are herein sometimes referred to as "Underwriters'
Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Agreement shall not be
construed as an obligation of the Company to sell any of the Securities or as an
obligation of any of the Underwriters to purchase the Securities. The obligation
of the Company to issue and sell any of the Securities and the obligation of any
of the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and whether any
of such Designated Securities shall be covered by Delayed Delivery Contracts (as
defined in Section 3 hereof) and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The registration statement on Form S-3 (File No. 333-124166) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto, in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"); the various parts of the Initial Registration Statement, any
post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective but excluding Form T-1, each as amended at the
time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after
2
the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
3
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree or has entered into any
transaction or agreement that is material to the Company and its
subsidiaries, taken as a whole, or incurred any liability or obligation,
direct or contingent, that is material to the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any change in excess of 5% in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except (i) such as are described in the Offering
Circular or (ii) such as do not, individually or in the aggregate, have a
material adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as do not, individually or in the aggregate, have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries;
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and to execute and
deliver this Agreement and perform its obligations hereunder, and has been
duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified or in good
standing in any such jurisdiction would not, individually or in the
aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries;
(g) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation, unlimited limited liability company,
limited liability company or limited partnership in good standing under the
laws of its jurisdiction of formation and has been duly qualified as a
foreign corporation, unlimited limited liability company, limited liability
company or limited partnership for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified or in good
4
standing in any such jurisdiction would not, individually or in the
aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock or other
equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares and except as otherwise described
in the Prospectus) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(i) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities and, in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts (as
defined in Section 3 hereof) with respect to such Contract Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(j) None of the Company's transactions contemplated by this Agreement
and the Pricing Agreement (including, without limitation, the use of the
proceeds from the sale of the Securities) will violate or result in a
violation of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations T, U and X of the
Board of Governors of the Federal Reserve System;
(k) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the offering of the Securities;
(l) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, each
of the Delayed Delivery Contracts, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or its subsidiaries is subject, nor
5
will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws or similar governing documents of
the Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture or any Delayed Delivery Contract, except
such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(m) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered by the
Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and any
Delayed Delivery Contracts conform to the description thereof in the
Prospectus;
(n) The statements set forth (i) in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Securities, and
under the captions "Plan of Distribution" and "Underwriting", insofar as
they purport to describe the provisions of the laws and documents referred
to therein and (ii) "Item 3 - Legal Proceedings" of Part I of the Company's
annual report on Form 10-K for the year ended July 2, 2005, insofar as they
purport to describe or summarize proceedings or the provisions of the laws
and documents referred to therein, are accurate, complete and fair;
(o) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation, By-laws or similar governing
documents, (ii) in default, and no event has occurred that, with notice or
lapse of time or both, would constitute such a default, in the performance
or observance of any obligation, agreement, term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of
clauses (ii) and (iii) above, for any such defaults or violations that
would not, individually or in the aggregate, have a material adverse effect
on the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
(p) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which are reasonably likely to individually
or in the aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
6
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(q) Neither the Company nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus, none of
them will be, an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act");
(r) Ernst & Young LLP, who have certified certain financial statements
of the Company and its subsidiaries, and have audited the Company's
internal control over financial reporting and management's assessment
thereof, are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(s) The consolidated financial statements included or incorporated by
reference in the Prospectus present fairly, in all material respects, the
consolidated financial position of the Company and its subsidiaries as of
the dates indicated and the consolidated results of their operations and
the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
covered thereby, except as indicated in the notes thereto; and the other
financial information included or incorporated by reference in the
Prospectus has been derived from the accounting records of the Company and
its subsidiaries and presents fairly, in all material respects, the
information shown thereby;
(t) The Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the Exchange
Act) that complies with the requirements of the Exchange Act and has been
designed by the Company's principal executive officer and principal
financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance
with generally accepted accounting principles;
(u) Based on the evaluation of management conducted as of July 2,
2005, the Company's internal control over financial reporting is effective,
and the Company has disclosed, based on its most recent evaluation of
internal control over financial reporting, to the Underwriters all
significant deficiencies and material weaknesses in the design or operation
of internal control over financial reporting which are reasonably likely to
adversely affect the Company's ability to record, process, summarize and
report financial information, if any, and any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company's internal control over financial
reporting.
(v) Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, there has been no change in
the Company's internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company's
internal control over financial reporting;
(w) The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that comply with
the requirements of the Exchange Act; such disclosure controls and
7
procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company's
principal executive officer and principal financial officer by others
within those entities; based on management's review conducted as of July 2,
2005, such disclosure controls and procedures are effective in providing
reasonable assurances that material information required to be disclosed is
included on a timely basis in the reports it files with the Commission;
(x) The Company and its subsidiaries possess all licenses, franchises,
certificates, permits and other authorizations issued by, and have made all
declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory agencies or bodies ("Permits") that are
necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Prospectus,
except where the failure to possess or make the same would not,
individually or in the aggregate, have a material adverse effect on the
current or future consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries. Except as
described in the Prospectus, the Company and its subsidiaries have
fulfilled and performed all their obligations with respect to such Permits,
and no event has occurred that allows, or after notice or lapse of time, or
both, would allow, revocation or termination thereof or result in any other
impairment of the rights of the holder of any such Permit, except for any
such failures to fulfill and perform or such revocations, terminations or
impairments that would not, individually or in the aggregate, have a
material adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries. Except as described in the Prospectus, neither the
Company nor any of its subsidiaries has received notice of any revocation
or modification of any such Permit or has any reason to believe that any
such Permit will not be renewed in the ordinary course, except for any such
revocations, modifications or nonrenewals as would not, individually or in
the aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries;
(y) No labor disturbance by or dispute with employees of the Company
or any of its subsidiaries exists or, to the best knowledge of the Company,
is contemplated or threatened, except for any such disturbances or disputes
as would not, individually or in the aggregate, have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries;
(z) Each of the Company and its subsidiaries has filed all federal,
state, local and foreign tax returns required to be filed through the date
hereof or has obtained extensions thereof, and has paid all taxes shown on
such returns and all assessments received by it to the extent that the same
have become due or is contesting such taxes in good faith by appropriate
proceedings;
(aa) The Company and its subsidiaries are in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"). To the
extent applicable, no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the
Company or any of its subsidiaries would have any liability. Neither the
Company nor any of its subsidiaries has incurred or expects to incur any
8
material liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (collectively, the "Code"); and
each "pension plan" for which the Company or any of its subsidiaries would
have any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the loss of such
qualification;
(bb) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of solid wastes,
hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of any of them, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by any of them in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit or
which would require remedial actions under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any such
violations or remedial actions as would not, individually or in the
aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; there has been no spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto any such property or into the environment surrounding any such
property of any solid wastes, hazardous wastes or hazardous substances due
to or caused by the Company or any of its subsidiaries or with respect to
which any of them has knowledge, except for any such spills, discharges,
leakages, emissions, injections, escapes, dumpings or releases as would
not, individually or in the aggregate, have a material adverse effect on
the current or future consolidated financial position, stockholders' equity
or results of operations of the Company and its subsidiaries; as used in
this Section 1(bb), the terms "solid wastes," "hazardous wastes" and
"hazardous substances" shall have the meanings specified in any applicable
local, state, federal and foreign laws or regulations with respect to human
health and safety, pollution or environmental protection;
(cc) The Company and its subsidiaries own or possess adequate rights
to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) that are material to the Company and its subsidiaries taken as
a whole necessary for the conduct of their respective businesses; and the
conduct of their respective businesses will not conflict in any material
respect with any such rights of others, and the Company and its
subsidiaries have not received any notice of any claim of infringement of
or conflict with any such rights of others, except for any such claims as
would not, individually or in the aggregate, have a material adverse effect
on the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
(dd) The Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including
business interruption, which insurance is in amounts and insures against
such losses and risks as are adequate to protect the Company and its
subsidiaries and their respective businesses; and neither the Company nor
9
any of its subsidiaries has (i) received notice from any insurer or agent
of such insurer that capital improvements are required or necessary to be
made in order to continue such insurance or (ii) any reason to believe that
it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business as currently
conducted; and
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Underwriters' Securities, the several Underwriters propose to offer such
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement applicable
to any Designated Securities that the Underwriters are authorized to solicit
offers to purchase Designated Securities from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"), substantially
in the form of Annex II attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery (as defined in Section 4 hereof), such
commission, if any, as may be set forth in such Pricing Agreement. Delayed
Delivery Contracts, if any, are to be with investors of the types described in
the Prospectus and subject to other conditions therein set forth. The
Underwriters will not have any responsibility with respect to the validity or
performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m., New York City time, on the third business day preceding the Time
of Delivery specified in the applicable Pricing Agreement (or such other time
and date as the Representatives and the Company may agree upon in writing), a
written notice setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
10
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Securities in the amount of any compensation
payable by the Company to the Underwriters in respect of any Delayed Delivery
Contracts as provided in Section 3 hereof and the Pricing Agreement relating to
such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery (other than
any amendment to the Registration Statement that is filed with the
Commission more than one year after such Time of Delivery and that does not
relate to the offering or sale of the Designated Securities) and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after they receive
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith, the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
11
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with written and electronic copies of the
Prospectus, excluding documents filed electronically with the Commission
and incorporated by reference therein, in New York City as amended or
supplemented in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as the Representatives may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance;
(d) To furnish to counsel for the Underwriters, without charge, a
signed copy (which may be a complete and accurate photocopy of a signed
original) of the Registration Statement and three conformed copies
(including exhibits thereto) and, for delivery to each other Underwriter, a
conformed copy of the Registration Statement (without exhibits thereto), in
each case prior to the first Time of Delivery under the Agreement;
(e) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(f) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives;
(g) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act;
12
(h) Not to be or become, at any time prior to the expiration of three
years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act; and
(i) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds."
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and Legal
Investment Surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the
fees and expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the applicable
Designated Securities shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) hereof; if the
Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
13
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Xxxxx Xxxxx L.L.P., counsel for the Underwriters, shall have furnished
to the Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the Company,
the Registration Statement, the Prospectus, the Delayed Delivery Contracts, if
any, and other related matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as they may
request to enable them to pass upon such matters;
(c) Xxxxxx Xxxxxx Xxxxxxx LLP, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery for such Designated Securities, in substantially the form attached
hereto as Annex III, which opinion must be in form and substance satisfactory to
the Representatives. If the Offered Securities include Delayed Delivery
Contracts, such opinion shall also address due authorization, execution and
deliver of, the enforceability of, and the absence of conflicts in connection
with the execution, delivery and performance of, the Delayed Delivery Contracts;
(d) On the date of the Pricing Agreement for such Designated Securities, at
a time prior to the execution of the Pricing Agreement with respect to such
Designated Securities, and at the Time of Delivery for such Designated
Securities, Ernst & Young LLP, the Company's independent accountants, shall have
furnished to the Representatives a letter dated as of the date of the Pricing
Agreement and a letter dated as of such Time of Delivery, respectively, to the
effect set forth in Annex IV hereto and as to such other matters as the
Representatives may reasonably request, and in form and substance satisfactory
to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
as amended prior to the date of the Pricing Agreement relating to the Designated
Securities and (ii) since the respective dates as of which information is given
in the Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities, (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
14
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal, New York or Texas
State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war; or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event specified in
clause (iv) or (v) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(h) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (e) of this
Section and as to such other matters as the Representatives may reasonably
request.
8. (a)The Company will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
15
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action 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) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
16
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a)If any Underwriter shall default in its obligation to purchase the
Underwriters' Securities which it has agreed to purchase under the Pricing
Agreement relating to such Underwriters' Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Underwriters' Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Underwriters' Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
17
procure another party or other parties satisfactory to the Representatives to
purchase such Underwriters' Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Underwriters' Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Underwriters' Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Underwriters' Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
18
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason,
other than pursuant to Sections 7(g)(i), (iii), (iv) or (v) hereof,
Underwriters' Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. The Company acknowledges and agrees that (i) the purchase and sale of
the Securities pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the several Underwriters
or the counterparty or counterparties to the Delayed Delivery Contracts, as the
case may be, on the other, (ii) in connection therewith and with the process
leading to such transaction each Underwriter is acting solely as a principal and
not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company with respect to the
offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company on
other matters) or any other obligation to the Company except the obligations
expressly set forth in this Agreement and (iv) the Company has consulted its own
legal and financial advisors to the extent it deemed appropriate. The Company
agrees that it will not claim that the Underwriters, or any of them, has
rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process
leading thereto.
14. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
19
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
15. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
16. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE COMPANY AND
EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
17. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
18. Notwithstanding anything herein to the contrary, the Company is
authorized to disclose to any persons the U.S. federal and state income tax
treatment and tax structure of the potential transaction and all materials of
any kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without the Underwriters imposing any
limitation of any kind. However, any information relating to the tax treatment
and tax structure shall remain confidential (and the foregoing sentence shall
not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, "tax structure" is limited to any facts that
may be relevant to that treatment.
19. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of
them, with respect to the subject matter hereof.
20
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and for each of the Representatives plus one
for each counsel counterparts hereof.
Very truly yours,
Sysco Corporation
By: /s/ Xxxx X. Xxxxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxxxx, Xx.
Title: Executive Vice President, Finance
and Chief Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
-------------------------------------
(Xxxxxxx, Xxxxx & Co.)
21
ANNEX I
PRICING AGREEMENT
Xxxxxxx, Sachs & Co.,
[Names of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o Goldman Xxxxx & Co.,]
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
__________, 20__
Ladies and Gentlemen:
SYSCO Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated September 19, 2005 (the "Underwriting Agreement"), between the
Company on the one hand and Xxxxxxx, Sachs & Co. and __________ on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified in
Schedule II.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
SYSCO Corporation
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
[Name(s) of Co-Representative(s)]
By:
-------------------------------------
(Xxxxxxx Sachs & Co.)
[Name(s) of Co-Representative Corporation(s)]
By:
-------------------------------------
Name:
Title:
-------------------------------------
[(Name(s) of Co-Representative Partnership(s))]
On behalf of each of the Underwriters
I-2
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
Xxxxxxx, Xxxxx & Co.............................................. $
[NAME(S) OF CO-REPRESENTATIVE(S)]................................
[NAMES OF OTHER UNDERWRITERS]....................................
------------
Total.......................................... $
============
I-3
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
TIME OF DELIVERY:
INDENTURE:
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
I-4
SINKING FUND PROVISIONS:
EXTENDABLE PROVISIONS:
FLOATING RATE PROVISIONS:
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
DELAYED DELIVERY:
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
[OTHER TERMS:]
I-5
ANNEX II
DELAYED DELIVERY CONTRACT
SYSCO Corporation,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Attention:_____________________ __________, 20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SYSCO Corporation
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$.........
principal amount of the Company's ___% __________ due 20__ (hereinafter called
the "Designated Securities"), offered by the Company's Prospectus, dated
__________, 20__, as amended or supplemented, receipt of a copy of which is
hereby acknowledged, at a purchase price of ___% of the principal amount
thereof, plus accrued interest from the date from which interest accrues as set
forth below, and on the further terms and conditions set forth below.
[The undersigned will purchase the Designated Securities from the Company
on __________, 20__ (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from __________, 20__.]
[The undersigned will purchase the Designated Securities from the Company
on the delivery date or dates and in the principal amount or amounts set forth
below:
Principal Date from Which
Delivery Date Amount Interest Accrues
__________, 20__ $_____ __________, 20__
__________, 20__ $_____ __________, 20__
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the / each] Delivery Date shall be made to the Company or its order
by certified or official bank check in __________ Clearing House funds at the
office of __________, __________, __________, or by wire transfer to a bank
account specified by the Company, on [the / such] Delivery Date upon delivery to
the undersigned of the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written, telex or
facsimile communication addressed to the Company not less than five full
business days prior to [the / such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [the / each] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [the / such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
The undersigned understands that Underwriters (the "Underwriters") are also
purchasing Designated Securities from the Company, but that the obligations of
the Undersigned hereunder are not contingent on such purchases. Promptly after
completion of the sale to the Underwriters the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
II-2
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
----------------------------------------
By:
-------------------------------------
(Authorized Signature)
Name:
Title:
-------------------------------------
(Address)
Accepted: __________, 20__
SYSCO Corporation
By:
-------------------------------------
Name:
Title:
II-3
ANNEX III
[Form of Opinion of Counsel for the Company]
__________, 20__
Xxxxxxx, Xxxxx & Co.,
[Names of Co-Representative(s),
c/o Goldman, Sachs & Co.,]
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
We are furnishing this opinion letter to you under Section 7(c) of the
Underwriting Agreement dated as of September 19, 2005 by and between SYSCO
Corporation, a Delaware corporation (the "Company"), and Xxxxxxx, Xxxxx & Co.
(the "Original Agreement"), which is incorporated by reference into the Pricing
Agreement dated as of __________, 20__ between the Company and Xxxxxxx, Sachs &
Co. [and __________], as Representative[s] for the several underwriters referred
to below (the "Pricing Agreement," and together with the Original Agreement, the
"Underwriting Agreement"), relating to the issuance and sale by the Company to
the several Underwriters named in Schedule I of the Pricing Agreement (the
"Underwriters") of $__________ aggregate principal amount of ___% __________ due
__________, 20__ (the "Securities"). The Company will issue the Securities under
an Indenture dated as of June 15, 1995 between it and Wachovia Bank, National
Association (formerly First Union National Bank of North Carolina), as trustee
(the "Trustee"), as amended and supplemented by __________ supplemental
indentures (such indenture as so amended and supplemented being herein referred
to as the "Original Indenture") and as further amended and supplemented by the
__________ Supplemental Indenture dated as of __________, 20__ relating to the
offering of the Securities (the "Supplemental Indenture"). The Original
Indenture and the Supplemental Indenture are collectively referred to herein as
the "Indenture."
Capitalized terms used herein and not otherwise defined herein have the
respective meanings given to them in the Underwriting Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 33-124166)
relating to the registration under the Securities Act of 1933 (the "Securities
Act"), and the offering thereof from time to time in accordance therewith, of
debt securities of the Company, including the Securities. The registration
statement, including exhibits thereto, as amended at the time of its effective
date, including all documents incorporated by reference therein, is hereinafter
referred to as the "Registration Statement," and the Company's prospectus dated
May 9, 2005, together with the Company's prospectus supplement dated __________,
20__, as filed with the Commission in accordance with Rule 424(b) under the
Securities Act, including all documents incorporated by reference therein, are
hereinafter collectively referred to as the "Prospectus."
We have examined the originals, or copies certified or otherwise
identified, of the Restated Certificate of Incorporation and Amended and
Restated By-laws, each as amended to date, of the Company (the "Charter
Documents"), the Prospectus, the Underwriting Agreement, the Indenture, [a form
of Delayed Delivery Contract,] the Securities, corporate records of the Company
and its subsidiaries, including minute books the Company has furnished to us,
certificates of public officials and of representatives of the Company, statutes
and other instruments and documents, as a basis for the opinions we hereinafter
express. In giving these opinions, we have relied on certificates of officers of
the Company and of public officials with respect to the accuracy of the factual
matters those certificates cover or contain, and we have assumed that all
signatures on documents we have examined are genuine, all documents submitted to
us as originals are authentic, all documents submitted to us as certified or
photostatic copies conform to the original copies of those documents and those
original copies are authentic.
In giving this opinion, we have also relied on the following assumptions:
A. Each of the individuals executing the Underwriting Agreement, the
Indenture and the Securities (collectively, the "Transaction Documents") has
requisite legal capacity and all the signatures on the Transaction Documents are
genuine.
B. The execution and delivery of each and all of the Transaction Documents
are free from any form of fraud, misrepresentation, mistake of fact, duress or
criminal activity, none of which has occurred insofar as we are aware.
C. The Indenture has been duly authorized, executed and delivered by the
Trustee to the extent required and constitutes the legal, valid and binding
obligation of the Trustee enforceable against it in accordance with its terms,
and the Trustee has all requisite corporate power and authority to perform its
obligations under the Indenture, and to enforce the Indenture.
D. The Trustee has all requisite governmental certifications of authority,
licenses, permits, consents, qualifications and documents, if any, to perform
its obligations under the Indenture, and to enforce the Indenture.
We have made no investigation of the facts or law underlying the foregoing
assumptions, and you have not requested us to do so, but we wish to advise you
that nothing has come to our attention which would provide us with actual
knowledge that we are not justified in making such assumptions.
On the basis of the foregoing and subject to the assumptions, limitations
and qualifications we set forth herein, we are of the following opinions:
1. The Company has been organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus. The Company has been qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the
failure to be so qualified or in good standing in any such jurisdiction is not
reasonably likely to, individually or in the aggregate, have a material adverse
effect on the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries.
2. The authorized capital stock of the Company is comprised of
2,000,000,000 shares of common stock, par value $1.00 per share ("Common
Stock"), and 1,500,000 shares of preferred stock, par value $1.00 per share
III-2
("Preferred Stock"). No shares of Preferred Stock have been issued. All the
issued and outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable.
3. The Company has the corporate power and authority to execute and deliver
the Indenture, and the Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms. The Indenture conforms, as
to legal matters, in all material respects to the description thereof contained
in the Prospectus.
4. The Indenture has been duly qualified under the Trust Indenture Act of
1939 (the "Trust Indenture Act").
5. The Company has the corporate power and authority to execute and deliver
the Securities, and [the Securities have been duly authorized and executed by
the Company and, when duly authenticated in accordance with the terms of the
Indenture and paid for in accordance with the terms of the Underwriting
Agreement, the Securities will have been duly authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture / the Securities have
been duly authorized; the Underwriters' Securities have been duly executed by
the Company and, when duly authenticated in accordance with the terms of the
Indenture and paid for in accordance with the terms of the Underwriting
Agreement, the Securities will have been duly authenticated, issued and
delivered and constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; the Contract Securities,
when executed, authenticated, issued and delivered pursuant to the Indenture and
Delayed Delivery Contracts and paid for in accordance with the terms of the
Underwriting Agreement, will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture]; and the
Securities and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus.
6. The Company has the corporate power and authority to execute and deliver
the Underwriting Agreement, and the Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
[7. Each of such Delayed Delivery Contracts has been duly authorized,
executed and delivered by the Company and, assuming such Contract has been duly
executed and delivered by the purchaser named therein, constitutes a valid and
legally binding agreement of the Company enforceable in accordance with its
terms; and any Delayed Delivery Contracts conform to the description thereof in
the Prospectus as amended or supplemented.]
8. The issue and sale of the Securities by the Company to the
Representative[s] and the compliance by the Company with all of the provisions
of the Securities, the Indenture, [each of the Delayed Delivery Contracts,] and
the Underwriting Agreement and the consummation of the transactions therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
(a) to which the Company or any of its subsidiaries is a party or by which the
III-3
Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject and (b) that has
been filed with the Commission as an exhibit to any document that has been
incorporated by reference into the Prospectus, nor will such actions result in
any violation of the provisions of the Charter Documents or the laws of the
State of New York, the General Corporation Law of the State of Delaware or the
federal laws of the United States;
9. Assuming the accuracy of the representations and warranties of the
Representative[s] contained in the Underwriting Agreement and its/their
compliance with its/their obligations set forth in the Underwriting Agreement,
no consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the transactions
contemplated by the Underwriting Agreement or the Indenture [or any of such
Delayed Delivery Contracts], except such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by the Representative[s].
10. The Registration Statement has become effective under the Securities
Act and, to our knowledge, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are pending before or threatened by
the Commission. Any filing of the Prospectus required by Rule 424(b) under the
Securities Act has been timely made in accordance with that rule.
11. We do not know of any pending or threatened legal or governmental
proceedings involving the Company or any of its subsidiaries that are required
to be disclosed in the prospectus, or any amendment or supplement thereto, which
are not disclosed in the Prospectus.
12. To our knowledge and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which are reasonably likely to individually or
in the aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries; and, to our knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
13. The statements set forth in the Prospectus (a) under the caption
"Description of Debt Securities" and "Description of Notes", insofar as they
purport to constitute a summary of the terms of the Securities, and (b) in
paragraphs _____ under the caption "Plan of Distribution" and in paragraphs
_____ under the caption "Underwriting," in each case insofar as they purport to
describe or summarize the provisions of the laws and documents referred to
therein, are accurate, complete and fair.
14. Neither the Company nor any of its subsidiaries is, and after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus none of them will be, an
"investment company" or an entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
15. None of the Company's transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7 of the Exchange
Act, or any regulation promulgated thereunder, including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve System.
III-4
16. To our knowledge, there are no contracts, agreements or understandings
between the Company and any other person granting such person the right to
require the Company to include the offering of any securities of the Company
owned or to be owned by such person in the offering registered pursuant to the
Registration Statement.
17. To our knowledge, neither the Company nor any of its subsidiaries is
(a) in violation of its Certificate of Incorporation, By-laws or similar
governing documents, (b) in default, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the performance or
observance of any obligation, agreement, term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound or (c) in violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or governmental
or regulatory authority, except, in the case of clauses (b) and (c) above, for
any such defaults or violations that would not, individually or in the
aggregate, have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries.
18. To our knowledge, the Company and its subsidiaries possess all
licenses, franchises, certificates, permits and other authorizations issued by,
and have made all declarations and filings with, the appropriate federal, state,
local or foreign governmental or regulatory agencies or bodies ("Permits") that
are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Prospectus, except
where the failure to possess or make the same would not, individually or in the
aggregate, have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries. To our knowledge, except as described in the Prospectus,
the Company and its subsidiaries have fulfilled and performed all their
obligations with respect to such Permits, and no event has occurred that allows,
or after notice or lapse of time, or both, would allow, revocation or
termination thereof or result in any other impairment of the rights of the
holder of any such Permit, except for any such failures to fulfill and perform
or such revocations, terminations or impairments that would not, individually or
in the aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries.
19. The Registration Statement, as of the date of the filing of the
Company's __________ with the Commission, and the Prospectus, as of the date of
the Prospectus Supplement, were appropriately responsive in all material
respects as to form to the requirements of the Act and the Trust Indenture Act
(except that in each case we do not express any view as to the financial
statements, financial statement schedules and other financial information
included or incorporated by reference therein or excluded therefrom, the
Statement of Eligibility on Form T-1, or any statement or representation in any
of the exhibits to the Registration Statement, including the Statement of
Eligibility on Form T-1).
20. The documents incorporated by reference in the Prospectus, as of their
respective filing dates, were appropriately responsive in all material respects
to the requirements of the Exchange Act (except that in each case we do not
express any view as to the financial statements, financial statement schedules
and other financial information included or incorporated by reference therein or
excluded therefrom, or any statement or representation in any of the exhibits
thereto).
III-5
We have participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants of the
Company and your representatives at which the contents of the Prospectus (for
the avoidance of doubt, the word "Prospectus" as used in this paragraph shall
include the documents incorporated by reference into the Prospectus) and related
matters were discussed. Although we have not undertaken to determine
independently, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Prospectus (except
to the extent set forth in paragraph 13 above), we advise you that, on the basis
of the foregoing, no facts have come to our attention that lead us to believe
that the Prospectus (other than (a) the financial statements and schedules
(including the notes thereto and the auditor's reports thereon) incorporated by
reference therein or omitted therefrom and (b) the other accounting and
financial information contained or incorporated by reference therein or omitted
therefrom, as to which we have not been asked to comment), as of the date of the
Prospectus Supplement or as of the date hereof, 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.
Our opinions expressed in Paragraphs 3, 5 [and 7] hereinabove are expressly
subject to the following exceptions and qualifications in addition to other
exceptions and qualifications set forth elsewhere herein:
(a) The effect of bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights and remedies of creditors. This includes
the effect of the Federal Bankruptcy Code in its entirety, including matters of
contract rejection, fraudulent conveyance and obligation, turn-over, preference,
equitable subordination, automatic stay, conversion of a non-recourse obligation
into a recourse obligation, and substantive consolidation. This also includes
laws regarding fraudulent transfers, obligations and conveyances, and state
receivership laws.
(b) The effect of general principles of equity, whether applied by a court
of law or equity.
(c) With respect to the Indenture, the possible unenforceability of
provisions that waivers or consents by a party may not be given effect unless in
writing or in compliance with particular requirements or that a person's course
of dealing, course of performance, or the like or failure or delay in taking
actions may not constitute a waiver of related rights or provisions or that one
or more waivers may not under certain circumstances constitute a waiver of other
matters of the same kind.
(d) The effect of course of dealing, course of performance, or the like, in
modifying the terms of the Indenture or the respective rights or obligations of
the parties thereunder.
(e) To the extent that the validity, binding effect or enforceability of
the Indenture or the Securities or any provisions contained therein depends upon
the application of governing state law in a jurisdiction or jurisdictions other
than the jurisdiction whose law is the governing law, regardless of whether the
same has been enacted in the jurisdiction(s) where the rights or remedies
provided by governing state law are asserted, we do not opine that a court in
any such other jurisdiction would apply governing state law to such terms or
provisions.
(f) A judgment rendered by a court of competent jurisdiction outside the
state whose law is the governing law may not be enforceable in such state if
such judgment is deemed to contravene the public policy of such state.
III-6
In this letter, references to federal statutes include all amendments
thereto and all rules and regulations of the Commission thereunder, in each case
as in effect on the date hereof.
In this letter, phrases such as "to our knowledge," "known to us" and those
with equivalent wording refer to the awareness of information by the lawyers of
this Firm who have prepared or signed this letter or been actively involved in
assisting and advising the Company in connection with the preparation of the
Prospectus and the execution and delivery of the Underwriting Agreement, without
any independent investigation by any lawyer of this Firm.
Except as otherwise expressly stated above, we limit our opinions in this
letter in all respects to matters of the laws of the States of New York and
Georgia and the General Corporation Law of the State of Delaware.
We are furnishing this letter to you solely for your use in connection with
the transactions consummated on the date hereof under the Underwriting
Agreement, and this letter may not be relied on by any other person or for any
other purpose. This letter speaks as of the date hereof, and we disclaim any
obligation to update it or advise you of any change in any matter set forth
herein.
Very truly yours,
XXXXXX XXXXXX XXXXXXX LLP
III-7
ANNEX IV
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information), examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related rules and regulations; and, if applicable, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the representative or representatives of the Underwriters
(the "Representatives"), such term to include an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives and are attached to such letters;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which are attached to such letters; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years included or
incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations adopted by
the Commission, or (ii) any material modifications should be made to
the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
adopted by the Commission thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation
of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex IV to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
