EXHIBIT 1
XXXX XXXXX, INC.
(a Maryland corporation)
Debt Securities
FORM OF UNDERWRITING AGREEMENT
To the Underwriters
to be named in the applicable
Pricing Agreement supplemental hereto
Dear Sirs:
Xxxx Xxxxx, Inc., a Maryland corporation (the "Company"), proposes to
sell up to $________ aggregate principal amount, or its equivalent based on the
applicable exchange rate at the time of offering, in such foreign currencies or
units of two or more thereof as the Company shall designate at the time of
offering, of its senior debt securities ("Senior Debt Securities"), and its
subordinated debt securities ("Subordinated Debt Securities," and, together with
the Senior Debt Securities, the "Debt Securities"). Unless otherwise specified
in the applicable Pricing Agreement (as defined below), the Senior Debt
Securities are to be issued under an indenture (the "Senior Indenture") between
the Company and The Bank of New York, as trustee (the "Senior Debt Trustee").
Unless otherwise specified in the applicable Pricing Agreement, the Subordinated
Debt Securities are to be issued under an indenture (the "Subordinated
Indenture") between the Company and The Bank of New York, as trustee (the
"Subordinated Debt Trustee"). The Senior Indenture and the Subordinated
Indenture are collectively referred to herein as the "Indentures" and the Senior
Debt Trustee and the Subordinated Debt Trustee are collectively referred to
herein as the "Trustees." Each issue of Debt Securities may vary, where
applicable, as to aggregate principal amount, maturity, interest rate or rates
and timing of payments thereof, redemption provisions, conversion provisions and
sinking fund requirements, if any, and any other variable terms which the
applicable Indenture contemplates may be set forth in the Debt Securities as
issued from time to time. As used herein, "Securities" shall mean the Debt
Securities covered by the applicable Pricing Agreement.
Whenever the Company determines to make an offering of Debt
Securities, it will enter into an agreement (a "Pricing Agreement") providing
for the sale of such Securities to, and the purchase and offering thereof by,
the underwriter or underwriters named therein (the "Underwriters" or "you,"
which terms shall include the underwriter or underwriters named therein whether
acting alone in the sale of Securities or as members of an underwriting
syndicate and any underwriters substituted pursuant to Section 10 hereof). The
Pricing Agreement, which shall be substantially in the form of Exhibit A hereto,
may take the form of an exchange of any standard form of written
telecommunication between you and the Company. The Pricing Agreement relating to
each offering of Securities shall specify such applicable information as is
indicated in Exhibit A hereto. Each offering of Securities will be governed by
this Agreement,
as supplemented by the applicable Pricing Agreement, and this Agreement and such
Pricing Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. ______) and
Post-Effective Amendment No. 1 to its registration statement on Form S-3 (No.
333-33298) relating to the Debt Securities and the offering thereof from time to
time in accordance with Rule 415 under the Securities Act of 1933 (the "1933
Act") and the rules and regulations thereunder (the "1933 Act Regulations"), and
has filed such amendments thereto as may have been required to the date hereof.
Such registration statements as amended have been declared effective by the
Commission, and the respective Indentures have been qualified under the Trust
Indenture Act of 1939 (the "1939 Act") and the rules and regulations of the
Commission thereunder (collectively, the "1939 Act Regulations"). Such
registration statements as amended and the prospectus relating to the sale of
Debt Securities by the Company constituting a part thereof, including all
documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934 (the "1934 Act"),
the 1933 Act or otherwise, are collectively referred to herein as the
"Registration Statement" and the "Prospectus," respectively; provided, however,
that a supplement of the Prospectus contemplated by Section 3(a) hereof and any
term sheet as contemplated by Rule 434 of the 1933 Act Regulations (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the offering of Securities to which it relates.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which it is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
SECTION 1. Representations and Warranties. (a) The Company represents
and warrants to each Underwriter as of the date hereof and as of the date of the
execution of the Pricing Agreement (such latter date being hereinafter referred
to as the "Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act and at the time the Registration Statement became effective and as
of the applicable Representation Date, the Registration Statement and the
Prospectus complied in all material respects with the requirements of the
1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, and did not, and will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement became effective and as
of the applicable Representation Date and at the Closing Time referred to
in Section 2, did not, and will not, include an untrue
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statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter expressly for use in the Registration
Statement or the Prospectus (or to that part of the Registration Statement
that shall constitute the Statement of Eligibility under the 1939 Act (Form
T-1) of the respective Trustees).
(ii) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and supporting
schedules incorporated in the Registration Statement, are independent
public accountants for the Company as required by the 1933 Act and the 1933
Act Regulations.
(iii) The historical consolidated financial statements of the Company
and its consolidated subsidiaries, including the notes thereto,
incorporated in the Registration Statement and the Prospectus present
fairly the financial position, results of operations and cash flows of the
Company as of the dates and for the periods indicated therein; except as
otherwise stated in the Registration Statement, said financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved;
and the supporting schedules incorporated in the Registration Statement
present fairly the information required to be stated therein.
(iv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Significant Subsidiaries (as defined
below) considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its Significant
Subsidiaries, other than those in the ordinary course of business, that are
material with respect to the Company and its Significant Subsidiaries
considered as one enterprise, and (C) except for regular quarterly
dividends, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(v) The Company has been duly incorporated or organized and is validly
existing in good standing under the laws of the State of Maryland with all
requisite power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Prospectus or documents incorporated by reference therein; and the Company
is duly qualified to do business as a foreign corporation or organization
and is in good standing under the laws of each jurisdiction which requires
such qualification, whether by reason of the ownership or leasing of
property or the conduct of business, except when the failure to so qualify
or to be in good standing would not result in a Material Adverse Effect.
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(vi) All subsidiaries of the Company listed on Schedule II to the
applicable Pricing Agreement (each a "Significant Subsidiary") constitutes
a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(vii) Except as would not result in a Material Adverse Effect, each
Significant Subsidiary that is a corporation (A) has been duly incorporated
or organized, (B) is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation or organization,
has all requisite power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described in the
Prospectus or documents incorporated by reference therein, and (C) is duly
qualified to do business as a foreign corporation or organization and is in
good standing under the laws of each jurisdiction which requires such
qualification. Except as would not result in a Material Adverse Effect: (A)
all of the outstanding shares of capital stock of each Significant
Subsidiary that is a corporation have been duly and validly authorized and
issued and are fully paid and non-assessable, and (B) except as may be
otherwise set forth in the Prospectus or documents incorporated by
reference therein, all outstanding shares of capital stock of such
corporate subsidiaries are owned by the Company, either directly or
indirectly, free and clear of any mortgage, pledge, lien, encumbrance,
claim or equity.
(viii) Except as would not result in a Material Adverse Effect, each
Significant Subsidiary that is a partnership (A) has been duly organized,
(B) is validly existing as a partnership in good standing under the laws of
the jurisdiction of its organization, has the partnership power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus or
documents incorporated by reference therein, and (C) is duly qualified to
do business as a foreign partnership and is in good standing under the laws
of each jurisdiction which requires such qualification. The capital
contributions with respect to the outstanding units of each Significant
Subsidiary that is a partnership have been made to such partnership. Except
as would not result in a Material Adverse Effect, the general and limited
partnership interests therein held directly or indirectly by the Company
are owned free and clear of any mortgage, pledge, lien, encumbrance, claim
or equity.
(ix) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization" or in
documents incorporated therein by reference (except for subsequent
issuances, if any, pursuant to reservations, agreements, employee benefit
plans or the exercise of convertible securities referred to in the
Prospectus or in documents incorporated therein by reference); and the
outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable. Any
shares of the Company's common stock, par value $.10 per share (the "Common
Stock"), initially issuable upon conversion of Securities that are
designated in a Pricing Agreement as being convertible into Common Stock
("Convertible Debt Securities") have been duly authorized and reserved for
issuance (or will have been so authorized or reserved prior to each
issuance of such Securities), and such shares, when issued and delivered in
accordance with the provisions of the Securities and the applicable
Indenture, will be validly issued, fully paid and non-assessable and will
conform to the description of the Common Stock in the Prospectus; no holder
of Common Stock will be subject to personal liability by reason of
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being such a holder and the issuance of such shares upon conversion will
not be subject to preemptive or other similar rights of any securityholder
of the Company.
(x) The Securities have been duly authorized for issuance pursuant to
this Agreement (or will have been so authorized prior to each issuance of
Securities) and, when executed, issued and delivered by the Company and
authenticated by the Trustee pursuant to the provisions of the applicable
Indenture and this Agreement against payment of the consideration set forth
in the applicable Pricing Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
applicable Indenture and enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). The
Indentures have been duly authorized by the Company, will be substantially
in the forms heretofore delivered to you and, when duly executed and
delivered by the Company and the Trustees, will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except as the enforcement thereof
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity). The Securities and the Indentures will conform in all
material respects to all statements relating thereto contained in the
Prospectus.
(xi) This Agreement and the applicable Pricing Agreement have each
been duly authorized, executed and delivered by the Company.
(xii) (A) The Company is not in violation or default of any provision
of its charter or by-laws, (B) none of the Significant Subsidiaries is in
violation or default of any provision of its respective charter or by-laws
(or other similar documents), and (C) neither the Company nor any
Significant Subsidiary is in violation or default of (I) the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it is bound or to
which its property is subject, or (II) any statute, law, rule, regulation,
judgment, order or decree of any Federal, state, local or foreign court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or such subsidiary or
any of its or their properties, as applicable, which violation or default,
in the case of clauses (B) and (C), would have a Material Adverse Effect.
The execution, delivery and performance of this Agreement, the applicable
Indenture and the Pricing Agreement and the consummation of the
transactions contemplated herein and therein (x) have been, or will be,
duly authorized by all necessary corporate action and (y) do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with, result in a breach or violation of, or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of its Significant Subsidiaries pursuant to (i) the charter or
by-laws of the Company; (ii) the charter or by-laws (or other similar
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documents) of any of the Significant Subsidiaries; (iii) any material
obligation, agreement, covenant, or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any Significant Subsidiary is a party or by which it
is bound or to which its or their property is subject; or (iv) any statute,
law, rule, regulation, judgment, order or decree applicable to the Company
or any of its Significant Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its Significant Subsidiaries
or any of its or their assets, properties, or operations; except in the
cases of clauses (ii) through (iv) as would not result in a Material
Adverse Effect. No consent, approval, authorization or order of any court
or governmental authority or agency is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such as
have been obtained under the 1933 Act, the 1933 Act Regulations, the 1939
Act or the 1939 Act Regulations or state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
(xiii) The Company and the Significant Subsidiaries possess all
material certificates, authorizations and permits issued by the appropriate
Federal, state or foreign regulatory authorities necessary to conduct their
respective businesses as presently conducted, except for such certificates,
authorizations and permits as to which the failure to so own, hold or
possess would not have a Material Adverse Effect, and neither the Company
nor any such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xiv) There is no action, suit or proceeding before or brought by any
court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened against or affecting the
Company or any of its Significant Subsidiaries that (a) could reasonably be
expected to result in a material adverse effect on the performance of this
Agreement or the applicable Pricing Agreement or the consummation of any of
the transactions contemplated hereby, (b) could reasonably be expected to
result in a Material Adverse Effect, or (c) is required to be disclosed in
the Registration Statement or documents incorporated by reference therein
but is not so disclosed; the aggregate of all pending legal or governmental
proceedings to which the Company or any Significant Subsidiary is a party
or of which any of their respective property is the subject which are not
described in the Registration Statement or documents incorporated therein
by reference, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect; and there are no contracts or documents of the Company or any of
its Significant Subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xv) The Company and its Significant Subsidiaries own, possess,
license, or have other rights to use, or can acquire on reasonable terms,
all material patents, patent applications, trade and service marks, trade
and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other
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intellectual property (collectively, the "Intellectual Property") necessary
for the conduct of their business, taken as a whole, as now conducted and
neither the Company nor any of its Significant Subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of its
subsidiaries therein, other than infringements or conflicts or conditions
of invalidity or inadequacy which (if the subject of any unfavorable
decision, ruling or finding), singly or in the aggregate, would not result
in a Material Adverse Effect, subject to such limitations on the use of, or
the rights to use such Intellectual Property that, individually or in the
aggregate, would not have a Material Adverse Effect.
(xvi) The Company is not required to be registered, licensed or
qualified as an investment adviser or a broker-dealer or as a commodity
trading advisor, a commodity pool operator or a future commission merchant
or any or all of the foregoing, as applicable; each of the Company's
subsidiaries that is required to be registered, licensed or qualified as an
investment adviser or a broker-dealer or as a commodity trading advisor, a
commodity pool operator or a futures commission merchant or any or all of
the foregoing, as applicable, is so registered, licensed or qualified in
each jurisdiction where the conduct of its business required such
registration, license or qualification (and such registration, license or
qualification is in full force and effect), and is in compliance with all
applicable laws requiring any such registration, licensing or
qualification, except for any failures to be so registered, licensed or
qualified or to be in such compliance that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(xvii) The Company has not taken and will not take, directly or
indirectly, any action designed to, or which might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Securities or, in the case of an offering of Convertible Debt Securities,
the Common Stock.
(xviii) The documents (as amended prior to the date hereof, as the
case may be) incorporated or deemed to be incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act, and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at
the Closing Time (as defined below), 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, in the light of the
circumstances under which they were made, 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 any Underwriter of the
Securities expressly for use in the Prospectus as amended or supplemented.
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(b) Any certificate signed by any officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company, as to the matters covered thereby,
to each Underwriter.
SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase Securities pursuant to any Pricing Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
Payment of the purchase price for, and delivery of, the Securities
shall be made at the date, time and location specified in the applicable Pricing
Agreement relating to the Securities, or at such other date, time and location
as shall be agreed upon by the representatives (as defined in Section 3 below)
and the Company, or as shall otherwise be provided in Section 10 (such time and
date of payment and delivery being herein called the "Closing Time"). Unless
otherwise specified in the applicable Pricing Agreement, payment shall be made
to the Company by wire transfer of same-day funds at the Closing Time to an
account or accounts designated by the Company against delivery to the
Representatives for the respective accounts of the Underwriters of the
Securities to be purchased by them (unless such Securities are issuable only in
the form of one or more global Securities registered in the name of a depository
or a nominee of a depository, in which event the Underwriters' interest in such
global certificate shall be noted in a manner satisfactory to the Underwriters
and their counsel). Such Securities shall be in such authorized denominations
and registered in such names as the Representatives may request in writing at
least two business days prior to the applicable Closing Time. Such Securities,
which may be in temporary form, will be made available for examination and
packaging by the Representatives on or before the first business day prior to
Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of each Pricing Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal amount
of Debt Securities covered thereby and their terms not otherwise specified in
the applicable Indenture, whether the Debt Securities will be Senior Debt
Securities or Subordinated Debt Securities, the names of the Underwriters
participating in the offering and the principal amount of Debt Securities which
each severally has agreed to purchase, the names of any Underwriters acting as
manager or co-managers in connection with the offering (the "Representatives"
which term shall include each Underwriter in the event that there be no manager
or co-manager), the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the selling
concession and reallowance, if any, and such other information as you and the
Company deem appropriate in connection with the offering of the Securities. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 of the Regulations and will furnish
to the Underwriters named therein as many copies of the Prospectus and such
Prospectus Supplement as the Representatives shall reasonably request.
(b) The Company will notify the Underwriters promptly, and confirm the
notice in writing, of (i) the effectiveness of any amendment to the Registration
Statement, of
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(ii) the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or any Prospectus Supplement, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (iv)
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that purpose
and (v) the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act. The Company will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(c) The Company will give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Underwriters with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such amendment or supplement or use any
such prospectus to which the Representatives or counsel to the Underwriters
shall reasonably object, unless required to do so pursuant to the applicable
federal securities laws.
(d) The Company will deliver to the Representatives signed copies of
the Registration Statement as initially filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
will also deliver to the Underwriters as many conformed copies of the
Registration Statement as initially filed and of each amendment thereto (without
exhibits) as the Underwriters may reasonably request.
(e) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of Securities any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser or if it shall be necessary, in the view of such
counsel, at any such time to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1934 Act or the
1934 Act Regulations, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant to
the 1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission or make the Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Representatives may designate and will maintain such qualification in effect for
as long as may be required for the distribution of the Securities; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the
9
laws of such jurisdiction to continue such qualification in effect for a period
of not less than one year from the effective date of the Registration Statement.
(g) With respect to each sale of Securities, the Company will make
generally available to its security holders as soon as practicable, but not
later than 60 days after the close of the period covered thereby, an earnings
statement (in a form which complies with the provisions of Rule 158 under the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the "Effective
Date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(i) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(j) Between the date of any Pricing Agreement and the later of
termination of any trading restrictions or Closing Time with respect to the
Securities, the Company will not, without your prior written consent, directly
or indirectly, offer to sell, sell, enter into an agreement to sell, grant any
option for the sale of, or otherwise dispose of, any new issue of debt
securities of the Company with a maturity of more than one year, including
additional Debt Securities (except for (i) any debt securities issued upon
exercise of warrants, (ii) any debt securities of the Company denominated in a
currency other than the currency in which the Securities subject to such Pricing
Agreement shall be denominated) or any warrants for the purchase of debt
securities of the Company with a maturity of more than one year. If the
Securities designated in the applicable Pricing Agreement are convertible into
Common Stock, for a period of 90 days from the date of the applicable Pricing
Agreement, the Company will not, without your prior written consent, directly or
indirectly, offer to sell, sell, enter into an agreement to sell, grant any
option for the sale of, or otherwise dispose of, any Common Stock, or security
convertible into or exchangeable for Common Stock, other than (A) the Securities
to be sold hereunder, (B) any shares of Common Stock issued by the Company upon
the exercise of an option or warrant or conversion of a security outstanding on
the date hereof, (C) any shares of Common Stock or phantom stock units issued or
options to purchase Common Stock granted pursuant to existing employee benefit
plans or director compensation plans of the Company or (D) securities issued as
consideration pursuant to acquisitions and registration statements registering
resales of such securities.
(k) If any Securities are designated by the applicable Pricing
Agreement to be convertible into Common Stock, the Company will reserve and keep
available at all times, free of preemptive rights, shares of Common Stock for
the purpose of enabling the Company to satisfy any obligations to issue shares
of its Common stock upon conversion of the Securities.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the printing of
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this Agreement and each Pricing Agreement covered below, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
Legal Investment Survey, (vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement as
originally filed and of each amendment thereto, of any preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto, (vii) the fees
and expenses of the applicable Trustee, (viii) the printing and delivery to the
underwriters of copies of the Blue Sky Survey, the applicable Indenture and any
Legal Investment Survey, (ix) the fees charged by the rating agencies in
connection with the rating of the Securities, (x) the fee of the National
Association of Securities Dealers, Inc. and (xi) the fees and expenses, if any,
incurred in connection with the listing of the Securities on the New York Stock
Exchange or any other national exchange.
If a Pricing Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters named in such Pricing Agreement for all
of their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Securities pursuant to any Pricing Agreement are
subject to the accuracy of the representations and warranties of the Company
herein contained, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act, and no proceedings under the 1933 Act therefor shall have been
initiated or threatened by the Commission, and (ii) the rating assigned by any
nationally recognized securities rating agency to any debt securities, preferred
stock or other obligations of the Company as of the date of the applicable
Pricing Agreement shall not have been lowered since the execution of such
Pricing Agreement and no notice shall have been given of any intended or
potential down-grading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
1933 Act.
(b) At Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of Closing Time, of the General
Counsel of the Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland.
11
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement.
(iii) The Underwriting Agreement, the applicable Pricing
Agreement, the applicable Indenture and the Securities have each been
duly authorized, executed and delivered by the Company.
(iv) The applicable Indenture is substantially in the form
delivered to you.
(v) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the conduct of its business requires such qualification, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not result in a
Material Adverse Effect.
(vi) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization" or in documents
incorporated therein by reference (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee benefit plans or
the exercise of convertible securities referred to in the Prospectus
or in documents incorporated therein by reference); the shares of
issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable.
(vii) Except as would not result in a Material Adverse Effect,
(A) each Significant Subsidiary that is a corporation has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which the conduct of its
business requires such qualification, whether by reason of the
ownership or leasing of property or the conduct of business; (B)
except as otherwise disclosed in the Registration Statement, all of
the issued and outstanding capital stock of each Significant
Subsidiary that is a corporation has been duly authorized and validly
issued, and is fully paid and non-assessable, and all of such capital
stock is, to his knowledge, owned by the Company, directly or
indirectly, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; and (C) none of the outstanding
shares of capital stock of any Significant Subsidiary that is a
corporation was issued in violation of the preemptive or similar
rights of any securityholder of such subsidiary.
(viii) Except as would not result in a Material Adverse Effect,
each Significant Subsidiary that is a partnership (A) has been duly
organized, (B) is validly existing as a partnership in good standing
under the laws of the
12
jurisdiction of its organization, has the partnership power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, and (C) is duly
qualified as a foreign partnership to transact business and is in good
standing under the laws of each jurisdiction in which the conduct of
its business requires such qualification, whether by reason of the
ownership or leasing of property or the conduct of business. The
capital contributions with respect to the outstanding units of each
Significant Subsidiary that is a partnership have been made to such
partnership. Except as would not result in a Material Adverse Effect,
the general and limited partnership interests therein held directly or
indirectly by the Company are owned free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity.
(ix) The Registration Statement is effective under the 1933 Act
and, to the best of his knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or threatened by the
Commission.
(x) To his knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the
Company or any Significant Subsidiary is a party, or to which the
property of the Company or any Significant Subsidiary is subject,
before or brought by any court or governmental agency or body, (A)
which might reasonably be expected to result in a Material Adverse
Effect, or (B) which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this agreement or the performance
of the Company of its obligations hereunder or the transactions
contemplated by the Registration Statement, or (C) which are required
to be described in the Registration Statement, but are not so
described.
(xi) Any shares of Common Stock initially issuable upon
conversion of Securities will be, when the Securities are issued,
validly authorized and reserved for issuance upon such conversion by
all necessary corporate action of the Company; and such shares, when
issued and delivered in accordance with the provisions of the
Securities and the applicable Indenture, will be duly and validly
issued and fully paid and non-assessable and no holder of Common Stock
will be subject to personal liability by reason of being such a
holder; the issuance of such shares upon conversion will not be
subject to preemptive rights under the charter or by-laws of the
Company; and the Common Stock conforms in all material respects to the
description thereof in the Prospectus.
(xii) To his knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be disclosed
in the Registration Statement other than those disclosed therein or in
documents incorporated by reference therein, and, except as would not
have a Material Adverse Effect, there are no pending legal or
governmental proceedings to which the Company or any Significant
Subsidiary is a party or to which any of their property is subject
which are not described in the Registration Statement or in documents
incorporated by
13
reference therein, including ordinary routine litigation incidental to
the business, considered in the aggregate.
(xiii) To his knowledge, (A) neither the Company nor, except as
would not have a Material Adverse Effect, any Significant Subsidiary
is in violation of its charter or by-laws or other organizational
documents; (B) no default by the Company or any Significant Subsidiary
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement; (C) there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments or
documents required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference
as exhibits thereto; and (D) the descriptions and references in the
Registration Statement to all such contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments or documents are
correct in all material respects.
(xiv) No authorization, approval, consent or order of any court
or governmental agency is required in connection with the sale of the
Securities to the Underwriters, except such as may be required under
the 1933 Act, the 1933 Act Regulations, the 1939 Act, the 1939 Act
Regulations or state securities laws or blue sky laws; and, to the
best of his knowledge, except as would not have a Material Adverse
Effect, the execution and delivery of this Agreement, the applicable
Pricing Agreement, the applicable Indenture and the consummation of
the transactions contemplated herein and therein will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of them is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of them is subject; nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company, or any applicable law,
administrative regulation or administrative or court decree.
(xv) Each document filed pursuant to the 1934 Act (other than the
financial statements and supporting schedules included therein, as to
which such counsel expresses no opinion) and incorporated or deemed to
be incorporated by reference in the Prospectus complied when so filed
as to form in all material respects with the 1934 Act and the 1934 Act
Regulations.
In rendering the opinions set forth in this paragraph, the General
Counsel of the Company may rely on such opinions of counsel as he may
reasonably request, provided that such counsel is reasonably satisfactory
to counsel for the Underwriters and that copies of such opinions are
attached to his opinion.
14
(2) The favorable opinion, dated as of Closing Time, of Shearman &
Sterling, counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Maryland.
(ii) This Agreement and the applicable Pricing Agreement have each
been duly authorized, executed and delivered by the Company.
(iii) The applicable Indenture has been duly authorized, executed and
delivered by the Company, and is substantially in the form
heretofore delivered to you and, assuming due authorization,
execution and delivery thereof by the applicable Trustee,
constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(iv) The Securities are in the form contemplated by the applicable
Indenture, have been duly authorized, executed and delivered by
the Company, and, assuming that they have been authenticated by
the applicable Trustee in accordance with the provisions of the
applicable Indenture (which facts such counsel has not determined
by an inspection of the Securities) and paid for in accordance
with the provisions of this Agreement and the applicable Pricing
Agreement, constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by (a)
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting enforcement of creditors' rights
generally, (b) except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law) and (c)
requirements that a claim (or a foreign currency judgment in
respect of such claim) be converted into United States dollars at
a rate of exchange prevailing on a date determined pursuant to
applicable law; and the Securities are entitled to the benefits
provided by the applicable Indenture.
(v) Any shares of Common Stock initially issuable upon conversion of
the Securities will be, when the Securities are issued, duly
authorized and reserved for issuance upon such conversion by all
necessary corporate action of the Company; such shares, when
issued and delivered in accordance with the provisions of the
Securities and the applicable
15
Indenture, will be validly issued and will be fully paid and
non-assessable and no holder of Common Stock will be subject to
personal liability by reason of being such a holder; the issuance
of such shares upon conversion will not be subject to preemptive
rights under the Certificate of Incorporation or by-laws of the
Company.
(vi) The Securities and the applicable Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(vii) At the time the Registration Statement became effective and at
the Representation Date, the Registration Statement (other than
the financial statements and related schedules and any other
financial data included or incorporated by reference therein, as
to which such counsel expresses no view) complied as to form in
all material respects with the applicable requirements of the
1933 Act and the applicable rules and regulations of the
Commission thereunder and the 1939 Act and the applicable rules
and regulations of the Commission thereunder.
(viii) The Registration Statement is effective under the 1933 Act and,
to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The applicable Indenture is qualified under the 1939 Act.
(x) Each document filed pursuant to the 1934 Act (other than the
financial statements and related schedules and any other
financial data included therein, as to which such counsel
expresses no view) and incorporated or deemed to be incorporated
by reference in the Prospectus complied when so filed as to form
in all material respects with the 1934 Act and the applicable
rules and regulations of the Commission thereunder.
In rendering such opinion, Shearman & Sterling may rely as to the
matters set forth in (x) of subsection (b)(2) of this Section and the
incorporation of the Company and all other matters governed by Maryland law
upon the opinion of the General Counsel of the Company referred to above.
(3) The favorable opinion, dated as of Closing Time, of _____________,
counsel for the Underwriters, with respect to certain of the matters set
forth in subsection (b)(2) of this Section, as well as such other matters
as the Underwriters may reasonably request. In rendering such opinion,
_____________ may rely as to the incorporation of the Company and all other
matters governed by Maryland law upon the opinion of the General Counsel of
the Company referred to above.
(4) In giving their opinions required by subsections (b)(2) and (b)(3)
of this Section, Shearman & Sterling and counsel to the Underwriters,
respectively, shall each additionally state that although they are not
passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in
16
the Registration Statement and Prospectus and have not made any independent
check or verification thereof, on the basis of the foregoing (relying as to
materiality upon the opinions of officers and other representatives of the
Company) nothing has come to their respective attention that would lead
them to believe that the Registration Statement, at the time it became
effective, 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 or that the Prospectus, as of its
respective date or at Closing Time, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that none of them
expresses any belief with respect to the financial statements and related
schedules or other financial and statistical data included or incorporated
by reference in the Registration Statement or the Prospectus or with
respect to the Statement of Eligibility on Form T-1 of the Trustee).
(c) At the Closing Time, there shall not have been, since the date of
the applicable Pricing Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Significant Subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the Chairman of the Board, the President or a Vice President of
the Company and of the chief financial officer or chief accounting officer of
the Company, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in Section
1 hereof are true and correct with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has complied in all material
respects with all agreements and satisfied all conditions on its part to be
performed or satisfied by it at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(d) The Underwriters shall have received from PricewaterhouseCoopers
LLP or other independent certified public accountants acceptable to the
Representatives letters dated as of the date of the applicable Pricing Agreement
and as of the date of the applicable Closing Time, respectively, in form and
substance reasonably satisfactory to the Representatives.
(e) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the Underwriters and their counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Pricing Agreement
may be terminated by the Representatives by written notice to the Company at any
time at or prior to Closing Time, and
17
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 7, 8 and 13 shall remain in effect.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(d) hereof, the reasonable fees and disbursements of
counsel chosen by the Underwriters), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or
18
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) The Company agrees to indemnify and hold harmless each Underwriter
against any documentary stamp or similar issue tax and any related interest or
penalties on the issue or sale of the Securities to the Underwriters which are
due in the United States of America, the United Kingdom or any other
jurisdiction.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought hereunder, such person (the "indemnified party") shall promptly notify
the person against whom such indemnity may be sought (the "indemnifying party")
as promptly as reasonably practicable, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties, except that the Company
shall be liable for the fees and expenses of one counsel representing Xxxx Xxxxx
Xxxx Xxxxxx Incorporated and one counsel representing the other Underwriters and
the persons controlling the other Underwriters.
Insofar as this indemnity may permit indemnification for liabilities
under the 1933 Act of any person who is a partner of an Underwriter or who
controls an Underwriter within the meaning of Section 15 of the 1933 Act and
who, at the date of the applicable Pricing Agreement, is a director, officer or
controlling person of the Company, such indemnity agreement is subject to the
undertaking of the Company in the Registration Statement.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount set forth in the
applicable Pricing Agreement bears to the initial
19
public offering price set forth in the applicable Pricing Agreement and the
Company is responsible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement. (a) The Representatives may
terminate the applicable Pricing Agreement, by notice to the Company, at any
time at or prior to the applicable Closing Time (i) if there has been, since the
date of the applicable Pricing Agreement or since the respective dates as of
which information is given in the Registration Statement or documents
incorporated by reference therein, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Significant Subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis, the effect of which is such as to make it, in the
judgment of the Underwriters, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Stock has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal, New York or Maryland
authorities or if a banking moratorium has been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies underlying the Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4. Notwithstanding any such termination, the provisions of
Sections 6, 7, 8 and 13 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters participating in an offering of Securities shall fail at the
applicable Closing Time to purchase the Securities which it or they are
obligated to purchase hereunder and under the applicable Pricing Agreement (the
"Defaulted Securities"), then you, as the Representatives of the Underwriters,
shall use your reasonable efforts to procure within 36 hours thereafter one or
20
more of the other Underwriters, or any others, to purchase from the Company such
amounts as may be agreed upon and upon the terms set forth therein and in the
applicable Pricing Agreement, the Securities which the defaulting Underwriter or
Underwriters failed to purchase. If during such 36 hours you, as such
Representatives, shall not have procured such other Underwriters, or any others,
to purchase the Securities agreed to be purchased by the defaulting Underwriter
or Underwriters, then (a) if the aggregate amount of the Defaulted Securities
does not exceed 10% of the Securities covered by the applicable Pricing
Agreement, the other Underwriters shall be obligated, severally, in proportion
to the respective numbers of Securities which they are obligated to purchase
under such Pricing Agreement, to purchase the Securities which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate amount
of the Defaulted Securities exceeds 10% of the Securities covered by the
applicable Pricing Agreement, the Company or you as the Representatives of the
Underwriters will have the right, by written notice given within the next
36-hour period to the parties to the applicable Pricing Agreement, to terminate
the applicable Pricing Agreement without liability on the part of any
non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of the applicable Pricing Agreement, either the non-defaulting
Underwriter or Underwriters, as the case may be, or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangement.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed as set forth in the applicable Pricing Agreement;
notices to the Company shall be directed to it at Xxxx Xxxxx, Inc., 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, attention of Xxxxxx X. Xxxxx, Senior Vice
President and General Counsel.
SECTION 12. Parties. This Agreement and each applicable Pricing
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement or any such Pricing Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any Pricing Agreement or any provision
herein or therein contained. This Agreement and each applicable Pricing
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the Underwriters and the Company and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
21
SECTION 13. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day refer to New
York time.
Very truly yours,
XXXX XXXXX, INC.
By: __________________________
Name:
Title:
22
Exhibit A
XXXX XXXXX, INC.
(a Maryland corporation)
___% Debt Securities due _____
PRICING AGREEMENT
___________, ____
[Name and address of the
Underwriter(s) or Representative(s)
of the Underwriter(s), if any]
Dear Sirs:
Xxxx Xxxxx, Inc., a Maryland corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated __________, ____ (the "Underwriting Agreement"), to issue and
sell to [___________ (the "Underwriter(s)")] [the several Underwriters listed on
Schedule I hereto, for whom ____________ is/are acting as representative(s) (the
"Representative(s)")], the Securities specified herein (the "Securities"). This
agreement is the Pricing Agreement relating to the Securities referred to in the
Underwriting Agreement.
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
Pricing Agreement to the same extent as if such provisions had been set forth in
full herein. 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 address of the Underwriter(s)
referred to in Section 11 of the Underwriting Agreement is
______________________, Attention: ______________.
An amendment to the Registration Statement, or the Prospectus
Supplement, as the case may be, relating to the 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 to sell to the Underwriters, and the Underwriters agree to purchase
from the Company, at the time and place and at the purchase price to the
Underwriters set forth herein, the aggregate principal amount of Securities
indicated on Schedule I hereto.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with the Underwriters as follows:
Title of Debt Securities:
Whether Senior or Subordinated Debt Securities:
Indenture (if other than as specified in the Underwriting Agreement):
Principal amount to be issued: $
Current ratings:
Interest rate: % payable on ____ and ___ of each year
Date of maturity:
Currency of denomination:
Currency of payment:
Form and denomination:
Overseas Paying Agent:
Redemption provisions:
Conversion:
Sinking fund requirements:
[Public offering price: %, plus accrued interest, or amortized
original issue discount, if any, from , 19 .]
Purchase price: %, plus accrued interest, or amortized original issue
discount, if any, from ______, ____ (payable in next day
funds).
Closing date and location:
This Agreement shall be governed by the laws of the State of New York.
A-2
If the foregoing is in accordance with your understanding of the
agreement between you and the Company, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all counterparts
(including the provisions of the Underwriting Agreement incorporated by
reference herein) shall be a binding agreement between the Underwriters and the
Company in accordance with its terms and the terms of the Underwriting
Agreement.
Very truly yours,
XXXX XXXXX, INC.
By: _____________________________
Name:
Title
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written:
UNDERWRITER(S) or
REPRESENTATIVE(S),
on behalf of the several Underwriters
named in Schedule I hereto
By: _________________________________
Name:
Title:
A-3
SCHEDULE I
TO THE PRICING AGREEMENT
Underwriters
Aggregate
Principal
Amount
Name of Underwriter of Securities
------------------- -------------
Total..................................
A-5
SCHEDULE II
TO THE PRICING AGREEMENT
Significant Subsidiaries of the Company
A-5
