EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
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XXXXXX INTERNATIONAL, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
New York, New York
____________, 1998
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Xxxxxx International, Inc., an Indiana corporation (the
"Company"), proposes to issue and sell to the underwriter or
underwriters named in Schedule II hereto (the "Underwriters"), for
whom the representative or representatives, if any, named in Schedule
I hereto (the "Representatives") are acting as representative or
representatives, the principal amount as set forth in Schedule II
hereto of debt securities to be issued under an indenture, dated as of
________, 1998 (the "Indenture"), between the Company and The First
National Bank of Chicago, as Trustee (the "Trustee"), and identified
in Schedule I hereto as "Securities," less the amount of Securities
covered by Delayed Delivery Contracts (as defined in Section 2
hereof), if any, as provided in Section 2 hereof and as may be
specified in Schedule I hereto (any Securities to be covered by
Delayed Delivery Contracts being herein sometimes referred to as
"Contract Securities" and the Securities to be purchased by the
Underwriters (after giving effect to the deduction, if any, for
Contract Securities) being herein sometimes referred to as
"Underwriters' Securities"). If the firm or firms listed in Schedule
II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms. The term
"Representatives" also refers to a single firm acting as sole
representative of the Underwriters.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below
in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (e) hereof.
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(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, and may have used a Preliminary
Final Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective.
When such registration statement became effective, the Basic
Prospectus did not include all the information with respect to the
Securities and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, though it included
all such information required by the Act and the rules thereunder to
be included therein as of the Effective Date. The Company will next
file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a
final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering
thereof. As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed in accordance with Rule
424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of
1934 (the "Exchange Act") and the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the respective rules thereunder; on the
Effective Date, the Registration Statement did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the date of the filing pursuant to Rule 424(b),
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
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reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The documents incorporated by reference in the Final
Prospectus, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case may be,
in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and, when read
together and with the other information in the Final Prospectus, did
not and will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading.
(d) Other than as set forth in the Final 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, if determined
adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
business, properties, financial condition, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(e) The terms which follow, when used in this Agreement, shall
have the meanings indicated. "Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or becomes effective. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the
Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time and, in the
event any post-effective amendment thereto becomes effective prior to
the Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended. "Rule 415", "Rule 424" and
"Regulation S-K" refer to such rules or regulation under the Act. Any
reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
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Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth,
the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule I hereto, the principal
amount of Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that if Schedule I hereto provides for the
sale of Securities pursuant to delayed delivery arrangements, the
respective principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto, less the
respective amounts of Contract Securities determined as provided
below.
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes
therein as the Company may authorize or approve. The Underwriters
will endeavor to make such arrangements and, as compensation therefor,
the Company will pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the compensation set forth in
Schedule I hereto with respect to Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make
Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum amount
set forth in Schedule I hereto and the aggregate amount of Contract
Securities may not exceed the maximum aggregate amount set forth in
Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery
Contracts. The amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total amount of
Contract Securities as the amount of Securities set forth opposite the
name of such Underwriter bears to the aggregate amount set forth in
Schedule II hereto, except to the extent that you determine that such
reduction shall be otherwise than in such proportion and so advise the
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Company in writing; PROVIDED, HOWEVER, that the total amount of
Securities to be purchased by all Underwriters shall be the aggregate
amount set forth in Schedule II hereto, less the aggregate amount of
Contract Securities.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Securities shall be made at the office, on the date and at the time
specified in Schedule I hereto, which date and time may be postponed
by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof in the manner set forth
in Schedule I hereto. Delivery of the Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two
business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities (if other
than in global form) available for inspection, checking and packaging
by the Representatives in New York, New York, not later than 1:00 p.m.
on the business day prior to the Closing Date.
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 Schedule I in the amount of
any compensation payable by the Company to the Underwriters in respect
of any Delayed Delivery Contracts as provided in Section 2 hereof and
in Schedule I hereto.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus.
5. AGREEMENTS. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement
or supplement to the Basic Prospectus or Final Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The
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Company will promptly advise the Representatives (1) when the Final
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (2)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or
become effective, (3) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus
or for any additional information, (4) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (5) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event; (2) prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto
as the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating
to the offering.
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(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities
in any jurisdiction where it is not now so subject.
(f) 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, the
Basic Prospectus, any Preliminary Final Prospectus and the Final
Prospectus and amendments thereof and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the expenses of printing all documents relating to the
offering (other than any agreement among Underwriters relating to the
offering 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(e) 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
agencies for rating the Securities; (v) the cost of preparing the
Securities; (vi) the fees and expenses of the Trustee and any agent
thereof and the fees and disbursements of counsel for the Trustee in
connection with this Agreement, the Indenture and the Securities; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided
for in this Section. It is understood, however, that, except as
provided in this Section, Section 7 and Section 8 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees and disbursements 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.
(g) The Company will not, without the prior written consent of
Salomon Brothers Inc, from the date hereof to and including the
business day following the Closing Date, offer, sell or contract to
sell, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company (or
any affiliate of the Company or any person in privity with the Company
or any affiliate of the Company pursuant to a written agreement with
the Company to do so) directly or indirectly, or announce the offering
of any debt securities issued or guaranteed by the Company (other than
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the Securities, any commercial paper, any variable rate demand notes
and any bid notes).
(h) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the date hereof and the
Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or
mailed or transmitted for filing with the Commission not later than
5:00 p.m. New York City time on the second business day following the
date hereof.
(b) The Company shall have furnished to the Representatives the
opinion of Xxxxxxx X. Xxxxxxxxx, Vice President for Legal Affairs
and General Counsel of the Company, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana,
with full corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and
has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is
subject to no liability or disability by reason of the failure to
be so qualified in any such jurisdiction which would have a
material adverse effect on the Company and its subsidiaries
(taken as a whole).
(ii) Each "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X promulgated under
the Act) (each, a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing (to the extent such
term is applicable) under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation
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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, or is subject to no liability or disability by
reason of the failure to be so qualified in any such jurisdiction
which would have a material adverse effect on the Company and its
subsidiaries (taken as a whole).
(iii) All the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise
set forth in the Final Prospectus, all outstanding shares of
capital stock of the Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of
any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims,
liens or encumbrances.
(iv) There are no pending or, to the knowledge of such
counsel, threatened in writing legal or governmental proceedings
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 of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Final Prospectus; there is no contract or other document of a
character required to be described in the Registration Statement
or Final Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or
incorporated by reference in the Final Prospectus describing any
legal proceedings or material contracts or agreements relating to
the Company fairly summarize such matters.
(v) The issue and sale of the Securities [(including the
Contract Securities)] and the compliance by the Company with all
of the provisions of the Securities, the Indenture and this
Agreement [and any Delayed Delivery Contracts] 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, any
material 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 any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation known to such counsel of
any court or governmental agency having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
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other than the State of Illinois or the United States, to the
extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be reliable
and who are satisfactory to counsel for the Agent and (B) as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
References to the Final Prospectus in this paragraph (b) include
any supplements thereto at the date such opinion is rendered. The
opinion or opinions of such counsel shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
(c) The Company shall have furnished to the Representatives the
opinion of Xxxxxx Xxxxxx & Xxxxx, counsel for the Company, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) This Agreement has [and any Delayed Delivery Contracts
have] been duly authorized, executed and delivered by the
Company.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery hereof by the Trustee) is a valid and
legally binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors'
rights generally or by general equity principles; and the
Indenture has been duly qualified under the Trust Indenture Act.
(iii) The Securities [(including the Contract
Securities)] have been duly and validly authorized for issuance,
offer and sale pursuant to this Agreement (and the Delayed
Delivery Contracts] and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement [, the Delayed
Delivery Contracts] and the Indenture against payment of the
consideration therefor specified in the Final Prospectus or
agreed upon pursuant to the provisions of this Agreement [and the
Delayed Delivery Contracts], the Securities will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors'
rights generally or by general equity principles; and the
Securities and the Indenture conform to the descriptions thereof
in the Final Prospectus.
(iv) No consent, approval, authorization, order or decree of
any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by
this Agreement [and any Delayed Delivery Contract] or in connec-
tion with the sale of Securities [(including the Contract
Securities)] hereunder, except such as have been obtained or
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rendered, as the case may be, or as may be required under state
securities ("Blue Sky") laws.
(v) The Company is not an "investment company" as such term
is defined in the Investment Company Act.
(vi) The Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been be made in
the manner and within the time period required by Rule 424(b); to
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or
threatened; and the Registration Statement and the Final
Prospectus (other than the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder.
In rendering such opinion, such counsel shall also state
that in connection with its representation of the Company in
connection with the offer and sale of the Securities pursuant
hereto, nothing has come to the attention of such counsel that
leads it to believe that the Registration Statement at the
Effective Date contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of its date and as of
the Closing Date included or includes any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the States of Illinois and Indiana or the United
States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for
the Agent and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company
and public officials. References to the Final Prospectus in this
paragraph (c) include any supplements thereto at the date such
opinion is rendered. The opinion or opinions of such counsel
shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(d) The Representatives shall have received from Xxxxx, Xxxxx &
Xxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to
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the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters. The opinion of such counsel shall be
rendered to the Underwriters at the request of the Company and shall
so state therein.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by any two of the Chief Executive
Officer, the President, the Vice President Finance, the Treasurer or
the Vice President for Legal Affairs of the Company, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in
the business, properties, financial condition, stockholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(f) At the date hereof and at the Closing Date, Ernst & Young,
LLP shall have furnished to the Representatives a letter, dated as of
the date hereof and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating, as of such date hereof or the Closing Date, as
the case may be, (or with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Final Prospectus, as of a date
not more than five days prior to either such date), the conclusions
and findings of such firm with respect to the financial information
and other matters as provided in SAS No. 72.
44
References to the Final Prospectus in this paragraph (f) include
any supplement thereto at the date of the letter.
(g) Subsequent to the date hereof or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(f) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the business, properties,
financial condition, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(h) Subsequent to the date hereof, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(i) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(j) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and
all obligations of the Underwriters hereunder may be canceled at, or
at any time prior to, the Closing Date by the Representatives. Notice
of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxx, Xxxxx & Xxxxx, counsel for the
Underwriters, at 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, on the
Closing Date.
45
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied, because of any termination pursuant
to Section 10 hereof or because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters
severally through Salomon Brothers Inc on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement
for the registration of the Securities as originally filed or in any
amendment thereof, or in any Basic Prospectus, Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof 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 agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company will
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 any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement, and each person
who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity to each
Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter
46
may otherwise have. The Company acknowledges that the statements set
forth [in the last paragraph of the cover page regarding delivery of
the Securities][the legend in block capital letters on page [2]
related to stabilization, syndicate covering transactions and penalty
bids][under the heading "Underwriting" or "Plan of Distribution", (i)
the sentences related to concessions and reallowances and (ii) the
paragraph related to stabilization, syndicate covering transactions
and penalty bids] in any Preliminary Final Prospectus and the Final
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary
Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); PROVIDED, HOWEVER, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
47
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the
Securities; PROVIDED, HOWEVER, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
48
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the principal amount of Securities
set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; PROVIDED,
HOWEVER, that in the event that the aggregate principal amount of
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount
of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding five business days, as the
Representatives shall determine in order that the required changes in
the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability,
if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to
the Company prior to delivery of and payment for the Securities, if at
any time prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock
Exchange or trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq Stock Market shall
have been suspended or limited or minimum prices shall have been
established on either of such Exchanges or the Nasdaq Stock Market,
(ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the
sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement
thereto).
49
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation
of this Agreement.
12. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telefaxed to the Salomon Brothers Inc
General Counsel (fax no.: (212)_______________________) and confirmed
to the General Counsel, Salomon Brothers Inc, at
, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel; or, if
sent to the Company, will be mailed, delivered or telefaxed to 000
Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention :
(fax no. (312) ___-____) and confirmed to it at 000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, attention of General Counsel.
13. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of
New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
50
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
XXXXXX INTERNATIONAL, INC.
By:________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
BANCAMERICA XXXXXXXXX XXXXXXXX
FIRST CHICAGO CAPITAL MARKETS, INC.
BY: SALOMON BROTHERS INC
By: ________________________________________
Name:
Title:
For themselves and the other several
Underwriters named in Schedule I
to the foregoing Agreement.
51
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s): Salomon Brothers Inc
BancAmerica Xxxxxxxxx Xxxxxxxx
First Chicago Capital Markets, Inc.
Closing date and time:
Place for delivery:
Description of Securities:
Title:
Specified Currency:
Aggregate principal amount:
Stated maturity date:
Purchase price (include accrued interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Defeasance Provisions:
Interest Payment Dates:
Form of Certificates:
Depositary:
Trading System:
Method of Payment:
Stock exchange listing, if any:
Delayed Delivery arrangements:
Additional procedures to be performed by Ernst & Young LLP, if any:
52
SCHEDULE II
Principal
Amount
Underwriter of Securities
---------- -------------
Salomon Brothers Inc . . . . . . . . . $
BancAmerica Xxxxxxxxx Xxxxxxxx . . . .
First Chicago Capital Markets, Inc. . .
-----------
Total . . . . . . . . . . . . . . $
===========
53
SCHEDULE III
DELAYED DELIVERY CONTRACT
Xxxxxx International, Inc.
c/o (Name and address of appropriate
Representative)
,
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxx
International, Inc. (hereinafter called the "Company"), and the
Company agrees to sell to the undersigned, $
principal amount of the Company's [Title of Debt Securities]
(hereinafter called the "Securities"), offered by the Company's
Prospectus dated , , and Prospectus Supplement
dated , , receipt of a copy of which is hereby
acknowledged, at a purchase price of percent 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 in this contract.
The undersigned will purchase the Securities from the Company on
, (the "Delivery Date") and interest on the Securities so
purchased will accrue from , .
The undersigned will purchase the Securities from the Company on
the delivery date or dates and in the principal amount or amounts and
number or numbers set forth below:
Date from Which
Delivery Date Principal Amount Interest Accrues
------------- ---------------- ----------------
, $ ,
, $ ,
Each such date on which Securities are to be purchased hereunder
is hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on a Delivery Date shall be made to the Company or its order
by certified or official bank check in funds at
the office of , or by wire transfer to a bank account
specified by the Company, on such Delivery Date upon delivery to the
undersigned of the Securities then to be purchased by the undersigned
in either (i) definitive fully registered form and in such
denominations and registered in such names as the undersigned may
54
designate by written or telegraphic communication addressed to the
Company not less than five full business days prior to such Delivery
Date (alternative provision) or (ii) book-entry form for deposit with
The Depository Trust Company.
The obligation of the undersigned to take delivery of and make
payment for Securities on a Delivery Date shall be subject to the
condition that the purchase of Securities to be made by the
undersigned shall not on 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
Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Securities pursuant to other
contracts similar to this contract.
[The undersigned understands that underwriters (the
"Underwriters") are also purchasing 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
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.
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
55
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____________________________
(Signature)
______________________________
(Name and Title)
______________________________
(Address)
Accepted:___________________, 19 ______
XXXXXX INTERNATIONAL, INC.
By___________________________________
(Title)
