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EXHIBIT 1.1
1,197,618 Shares
THE XXXXXXXX COMPANIES, INC.
Common Stock
Sales Agency Agreement
September __, 1995
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned, The Xxxxxxxx Companies, Inc., a Delaware
corporation (the "Company"), and Xxxxxxxx Holdings of Delaware, Inc., a
Delaware corporation, (the "Selling Stockholder"), hereby confirm their
agreement with Xxxxx Xxxxxx Inc. (the "Agent") as follows:
1. Sale of Common Stock. The Selling Stockholder has
authorized by appropriate corporate action and proposes to sell in the manner
contemplated by this Agreement 1,197,618 shares (the "Shares") of the Company's
Common Stock (the "Common Stock"), having the terms and provisions set forth in
the Restated Certificate of Incorporation, as amended, of the Company (a copy
of which has heretofore been delivered to the Agent) and summarized in the
Prospectus hereinafter mentioned. Subject to the terms and conditions stated
in this Agreement, the Company and the Selling Stockholder hereby (a) appoint
the Agent as the exclusive sales agent for the purpose of soliciting purchases
of the Shares from the Selling Stockholder by others and (b) agree that
whenever the Selling Stockholder determines to sell Shares directly to the
Agent as principal for resale to others, the Company and the Selling
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Stockholder will enter into a Terms Agreement (as defined in Section 2(b)
hereof) with the Agent relating to such sale in accordance with Section 2(b)
hereof.
2. Solicitations as Agent; Purchases as Principal. (a)
Solicitations as Agent. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, the
Agent agrees, as an agent of the Selling Stockholder, to use its reasonable
best efforts to solicit offers to purchase the Shares. The Agent and the
Selling Stockholder agree that such solicitations, and offers for the sale of
the Shares, shall commence upon receipt of, and shall be made in accordance
with, written instructions from the Selling Stockholder to the Agent (which
shall be substantially in the form of Exhibit A hereto and which may take the
form of an exchange of any standard form of written telecommunication between
the Agent and the Selling Stockholder and shall continue until such time as the
Selling Stockholder has instructed the Agent that such solicitations and offers
shall be suspended in accordance with Section 8 hereof. The Selling
Stockholder reserves the right, in its sole discretion, to instruct the Agent,
at any time and from time to time after the Commencement Date (as defined in
Section 7 hereof), to so commence or suspend such solicitations and offers for
any period of time or permanently in accordance with the provisions of this
Agreement.
In soliciting purchases of the Shares from the Selling
Stockholder by others (including customers of the Agent), the Agent will be
acting as agent for the Selling Stockholder and not as principal. The Agent,
as the exclusive agent for the offer and sale of the Shares, will use its
reasonable best efforts to sell the Shares on behalf of the Selling Stockholder
as contemplated hereby; provided, however, that it is understood by the Selling
Stockholder that the Agent has no obligation to find purchasers of the Shares
and that the Agent in its sole discretion, upon notice thereof to the Selling
Stockholder, can suspend from time to time its efforts in offering for sale,
and soliciting purchases of, the Shares. In any transaction where the Agent
has acted as agent for the Selling Stockholder and has not purchased as
principal, the Agent will use its reasonable best efforts to obtain performance
by each purchaser of Shares from the Selling Stockholder, but the Agent will
not have any liability to the Company and the Selling Stockholder in the event
any such purchase is not consummated for any reason except as may be otherwise
provided by any applicable regulations and rules of the Exchanges (as defined
in Section 3(a)(i) hereof) on which the transaction was
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executed and except that the Agent will complete the purchase in accordance
with the customs of the Exchanges in the case of transactions in which the
Agent has also acted as broker for the purchaser. The Company and the Selling
Stockholder also understand that under no circumstances shall the Agent be
obligated to purchase any Shares for its own account, except (i) pursuant to a
Terms Agreement, (ii) as provided in the preceding sentence and (iii) except to
the extent that the Agent has acted as a principal in purchasing a portion of a
block as contemplated by Section 3(a)(ii) hereof, or has made a firm commitment
with the Selling Stockholder in connection with an offering or distribution of
the type contemplated by Section 3(a)(iii) hereof that has been expressly
authorized by the Selling Stockholder and agreed to by the Agent.
(b) Purchases as Principal. Each sale of Shares to the
Agent as principal for resale to others shall be made in accordance with the
terms of this Agreement and, except for purchases made in accordance with the
customs of the Exchanges in the case of transactions in which the Agent has
also acted as broker for a purchaser and in the case of transactions permitted
by Section 3(a)(ii) hereof, a separate agreement that will provide for the sale
of such Shares to, and the purchase and reoffering thereof by, the Agent. Each
such separate agreement (which shall be substantially in the form of Exhibit B
hereto and which may take the form of an exchange of any standard form of
written telecommunication between the Agent and the Selling Stockholder) is
herein referred to as a "Terms Agreement". The Agent's commitment to purchase
Shares pursuant to any Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties of the Company and the Selling
Stockholder herein contained and shall be subject to the terms and conditions
herein set forth. Such Terms Agreement shall also specify the requirements for
the opinions of counsel, comfort letter and officer's certificate pursuant to
Sections 7(b), 7(c), 7(d) and 7(e), respectively, hereof.
3. Manner of Offer and Sale. (a) Method of Offer and
Sale. The Shares may be offered and sold by any of the following methods:
(i) Ordinary Brokers' Transactions. The Shares
may be offered and sold by the Agent in ordinary regular-way
transactions in the auction market on the
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floor of the New York Stock Exchange, Inc. (the "NYSE"), Pacific Stock
Exchange, Inc. (the "PSE") or any other stock exchange on which the
Common Stock may be listed or admitted to trading (the NYSE and the
PSE, together with such other stock exchanges, the "Exchanges").
(ii) Block Transactions. The Agent may solicit
offers to purchase Shares, and offer Shares for sale, in transactions
on the Exchanges in "crosses" of blocks where the Agent acts as broker
for the buyers in addition to acting as agent for the Selling
Stockholder. It is understood that on occasion the Agent may also act
as a principal and purchase for its own account a portion of the
Shares being sold in the cross of a block. The Agent may also offer
and sell Shares in block transactions on the Exchanges in which other
broker- dealers are acting as broker for all or some of the buyers of
the Shares being sold in such transactions. In the discretion of the
Agent, the Agent may also sell Shares in block transactions to one or
more broker-dealers purchasing such Shares, or a portion of such
Shares, as principal for their own account. Any of the transactions
contemplated by this Section 3(a)(ii) may be executed in the
over-the-counter market, with broker- dealers who are not members of
the Exchanges or otherwise, provided that the Agent has obtained any
necessary permission from officials of the Exchanges or such
transactions are otherwise in compliance with the rules of the
Exchanges.
(iii) Fixed Price Offerings. With the prior
authorization of the Selling Stockholder, and any necessary permission
from officials of the Exchanges, the Agent may conduct fixed price
offerings off the floor of the Exchanges, in which the Agent has
committed to purchase as principal the Shares involved in such
offerings and dealers selected by the Agent participate in the resale
of such Shares. With the prior authorization of the Selling
Stockholder, the Agent may also conduct "special offerings" or
"exchange distributions" of Shares on the NYSE in accordance with Rule
391 and Rule 392, respectively, of the NYSE or on any one or more of
the other Exchanges in accordance with the appropriate rules of such
other Exchanges. It is understood that the terms of "fixed price
offerings," "special offerings" and "exchange distributions"
contemplated by this Section 3(a)(iii) will in each case be subject to
the prior approval of the Selling Stockholder.
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(b) Market Prices. The Selling Stockholder understand
that sales of Shares will be made at market prices prevailing at the time of
sale in the case of transactions on the Exchanges and at prices negotiated by
the Agent and related to prevailing market prices in the case of
over-the-counter transactions; provided, however, that the price per share to
be paid to the Selling Stockholder for the Shares shall be in compliance with
the terms of this Agreement and the Procedures.
(c) Discounts, Commissions, Concessions, Etc. The
Selling Stockholder will (i) pay to the Agent, on each Settlement Date (as
defined in Section 4) in respect of the sale of any Shares solicited by the
Agent, in New York Clearing House (next day) funds, commissions for its
services in acting as agent for the Selling Stockholder in the sale of such
Shares in an amount per share to be negotiated as provided in the Procedures
(as defined in Section 3(e) hereof) for the types of transactions involved (it
being understood that the Selling Stockholder and the Agent may agree upon
payment for such commissions in such other manner as they may determine in
accordance with the Procedures) and (ii) pay the reasonable fees and expenses
of Xxxxx Xxxx & Xxxxxxxx ("Counsel for the Agent") in connection with the offer
and sale of the Shares. Discounts, commissions, concessions, the offering price
and other terms of offerings or distributions referred to in Sections 2(b) and
3(a) hereof will be agreed upon by the Selling Stockholder and the Agent prior
to any such offering or distribution. The Selling Stockholder understands and
agrees that, in any sale of Shares where the Agent is also acting as broker for
a buyer of Shares, the Agent may also receive a brokerage commission from the
buyer in any amount negotiated by the Agent and such buyer.
(d) Authorized Actions. The Selling Stockholder agrees
that, concurrently with the offer and sale of Shares on behalf of the Selling
Stockholder as contemplated by this Agreement, the Agent may (i) act as broker
for the sale of shares of Common Stock by customers other than the Selling
Stockholder, (ii) to the extent permitted by the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") solicit the sale of
shares of Common Stock by customers other than the Selling Stockholder through
the Agent as broker for the seller, solicit the sale of shares of Common Stock
by customers other than the Selling Stockholder to the Agent as principal and
solicit offers to purchase shares of Common Stock and (iii) offer and sell as
principal for its own account Shares that the
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Agent has purchased from the Selling Stockholder as contemplated by Sections
2(b) and 3(a)(ii) or shares of Common Stock that the Agent has otherwise
acquired in transactions permitted by this Agreement.
(e) Procedures. Procedural details relating to the offer
and sale of the Shares, and the issue and delivery of certificates representing
the Shares and payment for the Shares, are set forth in the Common Stock
Procedures attached hereto as Exhibit C (the "Procedures"). The Agent, the
Company and the Selling Stockholder each agree to perform the respective duties
and obligations to be performed by them as provided in the Procedures as
amended from time to time. The Procedures may be amended only by a written
agreement of the Company, the Selling Stockholder and the Agent. The Agent
agrees that the number of Shares to be offered and sold from time to time, and
the prices at which Shares are to be offered and sold, will be in compliance
with limitations established by the Company and the Selling Stockholder with
the Agent in accordance with the Procedures.
(f) Compliance with Laws and Regulations. The Agent
agrees that in carrying out the transactions contemplated by this Agreement, it
will observe and comply with (i) all applicable securities laws, regulations,
rules and ordinances of any jurisdiction in which the Shares may be offered,
sold or delivered and (ii) all applicable regulations and rules of the
Exchanges on which such transactions are executed.
4. Delivery of Shares. Delivery of the certificates for
Shares sold in transactions of the types referred to in Section 3(a) hereof
shall be made to the Agent at its offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, not later than 10:00 A.M., New York City time, on the date that
is three Business Days (as defined below) after the "trade date" for the sale
of such Shares, against delivery to the Selling Stockholder in New York
Clearing House (next day) funds of the purchase price for such Shares;
provided, however, that the Selling Stockholder and the Agent may agree upon
delivery of and payment for Shares sold in particular transactions at such
other time and place and in such other manner as they may determine in
accordance with the Procedures. The date of delivery to the Agent of
certificates for Shares sold against delivery to the Selling Stockholder of
funds in payment therefor is herein called the "Settlement Date." Delivery of
certificates, and payment, for Shares sold pursuant to a Terms Agreement shall
be made in accordance with such Terms Agreement. Except as may be otherwise
determined by the NYSE, "Business Day" as
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used in this Agreement means any day on which the NYSE is open for business
other than any such day on which banking institutions in New York City are
authorized or obligated by law to close.
5. Representations and Warranties of the Company and the
Selling Stockholder. The Company and the Selling Stockholder jointly and
severally represent and warrant to the Agent that:
(a) Filing of Registration Statement with Commission.
The Company has filed with the Commission a registration statement on Form S-3
(File No. 33-_____), and a related preliminary prospectus for the registration
of the Shares under the Securities Act of 1933, as amended (the "Act"), and the
offering thereof from time to time in accordance with Rule 415 of the published
rules and regulations of the Commission (the "Regulations") under the Act, and
has filed such amendments thereto and such amended preliminary prospectuses, if
any, as may have been required to the date hereof. Such registration statement
has been declared effective by the Commission. References in this Agreement to
the "Registration Statement" at a particular time are to such registration
statement, as it may have been amended or supplemented at such time, including
all exhibits thereto and all documents that at such time are incorporated by
reference therein. References in this Agreement to the "Prospectus" at a
particular time are, if prior to the time the Registration Statement is
declared effective, to the form of preliminary prospectus filed as a part of
the Registration Statement at such time and, thereafter, to the prospectus
first filed with the Commission pursuant to Rule 424(b) of the Regulations
under the Act, as it may have been amended or supplemented at such time,
including all documents that at such time are incorporated by reference
therein. References in this Agreement to "Incorporated Documents" at a
particular time are to the documents filed by the Company with the Commission
that are, or are deemed to be, incorporated by reference in the Prospectus at
such time as required by Item 12 of Form S-3 of the Regulations under the Act.
References in this Agreement to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement or the Prospectus shall be deemed to
refer to and include any Incorporated Document filed after the Registration
Statement became effective.
(b) Registration Statement; Prospectus and Incorporated
Documents. (i) The Registration Statement, at the time it and any amendments
thereto were originally filed, and each preliminary prospectus filed as a part
thereof or of any amendment thereto, at the time the
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Registration Statement and any such amendment were originally filed and at the
time the Registration Statement was declared effective by the Commission, as
they may be amended or supplemented at each such time, complied in all material
respects with the applicable provisions of the Act and the Regulations
thereunder; the Incorporated Documents complied when originally filed in all
material respects with the applicable provisions of the Exchange Act and the
Regulations thereunder; (ii) the Registration Statement, at the date of this
Agreement and any applicable Terms Agreement and at the Commencement Date, as
it may be amended or supplemented at each such time, complies and will comply,
as the case may be, in all material respects with the Act and the Regulations
thereunder; the Prospectus, at the date of this Agreement and any applicable
Terms Agreement, at the date it is first filed pursuant to Rule 424(b) of the
Regulations under the Act and at the Commencement Date, as it may be amended or
supplemented at each such time, complies and will comply, as the case may be,
in all material respects with the Act and the Regulations thereunder; and (iii)
the Registration Statement, at the time it became effective, at the date of
this Agreement and any applicable Terms Agreement and at the Commencement Date,
as it may be amended or supplemented at each such time, did not, does not and
will not, as the case may be, 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 date of this
Agreement and any applicable Terms Agreement, at the time it is first filed
pursuant to Rule 424(b) of the Regulations under the Act and at the
Commencement Date, as it may be amended or supplemented at each such time, does
not and will not, as the case may be, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that these representations and warranties do not
apply to statements or omissions in the Registration Statement or the
Prospectus, in each case as amended or supplemented, or any preliminary
prospectus, based upon information furnished to the Company and the Selling
Stockholder in writing by the Agent expressly for use therein.
(c) Financial Statements. The financial statements
incorporated by reference in the Prospectus present fairly the financial
condition and operations of the Company at the respective dates or for the
respective periods to which they apply; such financial statements have been
prepared in each case in accordance with generally accepted accounting
principles consistently applied
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throughout the periods involved except as otherwise disclosed therein, and
Xxxxx & Young LLP, who have examined certain of the financial statements, are
independent public accountants as required by the Act and the Regulations
thereunder.
(d) Material Changes or Transactions. Except as
reflected in, or contemplated by, the Registration Statement and the
Prospectus, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the business, affairs, business prospects, property or
financial condition of the Company whether or not arising in the ordinary
course of business, and since such dates there has not been any material
transaction entered into by the Company other than transactions contemplated by
the Registration Statement and the Prospectus and transactions in the ordinary
course of business. The Company has no material contingent obligation that is
not disclosed in the Registration Statement and the Prospectus.
(e) No Defaults, Etc. Neither the Company, the Selling
Stockholder nor any of Northwest Pipeline Corporation, Xxxxxxxx Natural Gas
Company, Xxxxxxxx Energy Services Company, Xxxxxxxx Pipe Line Company, Xxxxxxxx
Telecommunications Services, Inc., Vyvx, Inc., Xxxxxxxx Field Services, Inc.,
Texas Gas Transmission Corporation, and Transcontinental Gas Pipe Line
Corporation (collectively, the "Subsidiaries") is in violation of its
certificate of incorporation or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, agreement or other instrument to which it or any of
them is a party or in which it or any of them has a beneficial interest or by
which it or any of them may be bound, the effect of which is material to the
Company and its subsidiaries taken as a whole, and neither the execution or
delivery of this Agreement or any applicable Terms Agreement, the consummation
of the transactions herein or therein contemplated, the fulfillment of the
terms hereof or thereof nor compliance with the terms and provisions hereof or
thereof will conflict with, or result in a breach of, or constitute a default
under, (i) the certificate of incorporation, bylaws, or any contract, agreement
or other instrument that the Company, the Selling Stockholder or any of them
has assumed or to which it or any of them is now a party or in which it or any
of them has a beneficial interest or by which it or any of them may be bound or
(ii) any order, rule or regulation applicable to the Company, the Selling
Stockholder or the Subsidiaries of any court or any Federal or state regulatory
body or administrative agency or
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other governmental body having jurisdiction over the Company, the Selling
Stockholder or the Subsidiaries or over its or any of their properties.
(f) Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation under the laws
of the State of Delaware with corporate power and corporate authority to own
its properties and conduct its business as described in the Registration
Statement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which it owns
or leases substantial properties or in which the conduct of its business
requires such qualification except where the failure to so qualify would not
have a material adverse effect on the financial condition of the Company and
its subsidiaries taken as a whole.
(g) The Selling Stockholder. The Selling Stockholder
has, and on the Commencement Date will have, valid marketable title to the
shares and the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and to sell, transfer and deliver
the Shares.
(h) Subsidiaries. The Selling Stockholder and each of
the Subsidiaries has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which it owns or
leases substantial properties or in which the conduct of its business requires
such qualification, except where the failure to so qualify would not have a
material adverse effect on the financial condition of the Company and its
subsidiaries taken as a whole; all of the issued and outstanding capital stock
of the Selling Stockholder and each of the Subsidiaries has been duly
authorized and validly issued and is fully paid and non-assessable.
(i) Agreements. This Agreement has been, and any
applicable Terms Agreement will be, duly authorized, executed and delivered by
the Company and the Selling Stockholder and this Agreement is, and any
applicable Terms Agreement will be, a valid and legally binding agreement of
the Company and the Selling Stockholder.
(j) Capitalization; Common Stock; Shares. The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Registration Statement
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[(except for changes referred to therein or contemplated thereby and additional
shares offered under the Company's Stock Purchase Plan)]; the shares of issued
and outstanding Common Stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; the Shares have been duly
authorized and are validly issued, fully paid and non-assessable and entitled
to the rights set forth in the Company's Restated Certificate of Incorporation,
as amended; the Shares conform to all statements relating thereto contained in
the Registration Statement; and the issuance of the Shares is not subject to
preemptive rights.
(k) Delivery of the Shares pursuant to this Agreement
will pass marketable title to the Shares free and clear of any security
interests, claims, liens, equities and other encumbrances.
6. Covenants of the Company and the Selling Stockholder.
The Company and the Selling Stockholder jointly and severally covenant and
agree that:
(a) Filing of Prospectus with Commission; No Stop Order.
The Company and the Selling Stockholder will cause the Prospectus, and any
amendments or supplements thereto, to be filed with, or transmitted for filing
to, the Commission in accordance with Rule 424(b) of the Regulations under the
Act and will notify the Agent immediately, and confirm such notice in writing,
of the issuance by the Commission of any stop order under the Act suspending
the effectiveness of the Registration Statement or of the initiation of any
proceedings for that purpose. The Company and the Selling Stockholder will
make every reasonable effort to prevent the issuance by the Commission of any
stop order and, if any such stop order shall at any time be issued, to obtain
the lifting thereof at the earliest possible moment.
(b) Amendments and Supplements. The Company and the
Selling Stockholder will not file any amendment or supplement to the
Registration Statement, the Prospectus (including a prospectus filed pursuant
to Rule 424(b) of the Regulations under the Act that differs from the
Prospectus first filed pursuant to such Rule 424(b)) or any Incorporated
Document unless the Company and the Selling Stockholder have furnished to
Counsel for the Agents a copy for review prior to filing and the Company will
not file any such proposed amendment or supplement to which the Agent
reasonably objects.
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(c) Copies of Registration Statement and Prospectus. The
Company and the Selling Stockholder will promptly deliver to the Agent a fully
executed copy of the Registration Statement as originally filed including
Incorporated Documents and of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment thereto (in each case including
all exhibits filed therewith not previously furnished), including signed copies
of each consent and certificate included therein or filed as an exhibit
thereto, and will deliver to the Agent as many conformed copies of the
foregoing (excluding the exhibits) as the Agent may reasonably request. The
Company and the Selling Stockholder will deliver to the Agent from time to time
during the period when the Prospectus is required to be delivered under the
Act, such number of copies of the Prospectus (including any amendments or
supplements thereto), as the Agent may reasonably request for the purposes
contemplated by the Act and the Regulations thereunder.
(d) Compliance with the Act. During the period when the
Prospectus is required to be delivered under the Act, the Company and the
Selling Stockholder will comply, and at their own expense, with all
requirements imposed upon them by the Act and by the Regulations thereunder, so
far as necessary to permit the continuance of sales of or dealing in the Shares
during such period in accordance with the provisions hereof and the Prospectus.
(e) Changes of Material Fact. If any event relating to
or affecting the Company and the Selling Stockholder or of which the Company
and the Selling Stockholder shall be advised in writing by the Agent shall
occur as a result of which it is necessary, in the opinion of counsel of the
Company ("Counsel for the Company") or Counsel for the Agent, to amend or
supplement the Prospectus (as it may be amended or supplemented at such time)
in order to make the Prospectus (as it may be amended or supplemented at such
time) not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, the Company and the Selling Stockholder will
forthwith (i) notify the Agent to suspend solicitations of offers to purchase,
and offers for the sale of, the Shares (and, if so notified by the Company and
the Selling Stockholder, the Agent shall forthwith suspend such solicitations
and offers and cease using the Prospectus as supplemented or amended) and (ii)
prepare and furnish to the Agent, without expense to the Agent except as
otherwise provided in Section 6(c) hereof, a reasonable number of copies of an
amendment or amendments or a supplement or
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supplements to the Prospectus (as it may be amended or supplemented at such
time) (satisfactory in substance to the Agent and in form to Counsel for the
Agent) that will amend or supplement the Prospectus (as it may be amended or
supplemented at such time) so that as amended or supplemented it will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus (as so amended or
supplemented) is delivered to a purchaser, not misleading. For the purpose of
this Section 6(e) the Company and the Selling Stockholder will furnish such
information as the Agent may from time to time reasonably request.
(f) Earning Statement. In accordance with Rule 158(b) of
the Regulations under the Act, the Company will make generally available to its
security holders, as soon as practicable, an earning statement (which need not
be audited) in reasonable detail covering the 12 months beginning on the first
day of the month next succeeding the month in which occurred the effective date
of the Registration Statement.
(g) Blue Sky Qualification. The Company will use its
best efforts to qualify the Shares for offer and sale under the blue sky laws
of such jurisdictions as the Agent may reasonably designate, and will file and
make in each year such statements or reports as are or may be reasonably
required by the laws of such jurisdictions; provided, however, that the Company
shall not be required to qualify as a foreign corporation or dealer in
securities or to file any consents to service of process under the laws of any
jurisdiction.
(h) Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement or any applicable
Terms Agreement is terminated, the Selling Stockholder will pay all expenses
incident to the performance of its obligations under this Agreement or such
Terms Agreement, including, (i) the preparation, printing and filing of this
Agreement, such Terms Agreement, the Registration Statement as originally filed
and any amendments or supplements thereto, the preliminary prospectuses filed
as a part thereof, the Prospectus and any amendments and supplements thereto
and any Incorporated Documents and, in each case, the exhibits thereto, in each
case in quantities as required by the Agent under this Agreement, (ii) the
issue and delivery of the Shares as provided in Section 4 hereof, (iii) the
fees and
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disbursements of the accountants, (iv) the expenses in connection with the
qualification of the Shares under securities laws in accordance with the
provisions of Section 6(g) hereof, including filing fees and the fees and
disbursements of Counsel for the Agent in connection therewith and in
connection with the preparation of any Blue Sky Survey, (v) the reasonable fees
and expenses of Counsel for the Agent and other out-of-pocket expenses of the
Agent related to the Agent's services through the Commencement Date in
connection with the development of the program for the offer and sale of the
Shares as contemplated hereby, not exceeding in the aggregate [$ ]
(exclusive of fees and expenses referred to in clause (iv) of this Section
6(h)), (vi) the commissions and amounts payable in accordance with Section 3(c)
hereof and (vii) any advertising and other out-of-pocket expenses of the Agent
incurred with the approval of the Selling Stockholder. If this Agreement is
terminated in accordance with the provisions of Section 7 or 12 hereof, the
Company and the Selling Stockholder shall reimburse the Agent for reasonable
out-of-pocket expenses in an amount not exceeding [$ ] in the aggregate,
and for reasonable fees and disbursements of Counsel for the Agent. The
Company and the Selling Stockholder shall not in any event be liable to the
Agent for damages on account of the loss of anticipated profits.
7. Conditions of Agent's Obligations. The obligation of
the Agent to solicit offers to purchase the Shares as agent of the Company and
the Selling Stockholder, the obligation of any purchaser of Shares sold through
the Agent as agent and the obligation of the Agent to purchase Shares pursuant
to any Terms Agreement shall be subject at 9:30 A.M., New York City time, on
September __, 1995 or at such later time and date as the Agent, the Company and
the Selling Stockholder may agree upon (the "Commencement Date"), and at all
times thereafter, to the accuracy in all material respects of the
representations and warranties on the part of the Company and the Selling
Stockholder herein contained and to the accuracy of the statements of the
Company's and the Selling Stockholder's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company and the Selling Stockholder of all covenants and agreements
herein contained and to the following additional conditions precedent:
(a) Filing of Prospectus with Commission; No Stop Order.
The Prospectus and any amendments or supplements thereto, shall have been filed
with, or transmitted for filing to, the Commission in accordance with Rule
424(b) of the Regulations under the Act; no stop order with respect to
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the effectiveness of the Registration Statement shall have been issued under
the Act by the Commission and no proceedings therefor shall be pending or
threatened; and no authorizations, consents or other orders of governmental
body legally required for the authorization of the sale of the Shares pursuant
to the terms of this Agreement, except such as may be required under the Act or
under state or other securities or blue sky laws; and the Agent shall have
received a certificate of the Company signed by the President, the Executive
Vice President or any other Vice President of the Company reasonably
satisfactory to the Agent, dated as of the Commencement Date or such Settlement
Date, as the case may be, to such effect.
(b) Opinion of General Counsel for the Company and the
Selling Stockholder. On the Commencement Date and, if specified in any Terms
Agreement, on the Settlement Date therefor, the Agent shall have received the
favorable opinion dated as of the Commencement Date or such Settlement Date, as
the case may be, of the Senior Vice President and General Counsel for the
Company and the Selling Stockholder, in form and substance satisfactory to
Counsel for the Agent, to the effect that:
(i) the Company is a duly organized and validly
existing corporation under the laws of the State of Delaware;
(ii) the Selling Stockholder is a duly organized
and validly existing corporation under the laws of the State of
Delaware;
(iii) each of the Subsidiaries is a duly organized
and validly existing corporation under the laws of the jurisdiction of
its incorporation; and each of the Company, the Selling Stockholder
and the Subsidiaries is duly qualified as a foreign corporation to
transact business in each jurisdiction in which it owns or leases
substantial properties or in which the conduct of its business
requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the financial condition of
the Company and its subsidiaries taken as whole, and has due
corporate right and corporate authority to own its properties and to
carry on the business in which it is engaged;
(iv) all of the issued and outstanding capital
stock of each of the Subsidiaries and of the Selling Stockholder have
been duly and validly issued and are fully paid and non-assessable;
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(v) the authorized, issued and outstanding
capital stock of the Company is as set forth in the financial
statements included or incorporated by reference in the Prospectus,
and the shares of issued and outstanding Common Stock set forth
therein have been duly authorized and validly issued and are fully
paid and non-assessable;
(vi) the Selling Stockholder has valid marketable
title to the Shares and has the legal right and power, and all
authorization and approval required by law to enter into this
Agreement and to sell, transfer and deliver the Shares; the Shares are
fully paid and non-assessable shares and entitled to the rights set
forth in the Company's Restated Certificate of Incorporation, as
amended, and the Shares are not subject to preemptive rights;
(vii) the terms of the Shares conform as to legal
matters to the description thereof and the statements in regard
thereto contained in the Registration Statement and the Prospectus;
(viii) the Shares are listed on the NYSE and the PSE;
(ix) this Agreement or such Terms Agreement, as
the case may be, has been duly authorized, executed and delivered by
the Company and the Selling Stockholder;
(x) there are no approvals, authorizations,
consents or other orders of any legal, governmental or regulatory body
legally required for the authorization of the sale of the Shares by
the Selling Stockholder pursuant to the terms of this Agreement,
except such as may be required under the Act or under state or other
securities or blue sky laws;
(xi) delivery of the Shares pursuant to this
Agreement will pass marketable title to such Shares free and clear of
any security interests, claims, liens, equities and other
encumbrances.
(xii) the Registration Statement, at the time it
became effective, and the Prospectus, at the time it was first filed
pursuant to Rule 424(b) of the
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Regulations under the Act (except in each case as to the financial
statements and other financial or statistical data contained therein,
upon which such opinion need not pass, and except for Incorporated
Documents), complied as to form in all material respects with the
requirements of the Act and the Regulations thereunder; each
Incorporated Document as originally filed pursuant to the Exchange Act
(except as to financial statements and other financial or statistical
data contained therein, upon which such opinion need not pass)
complied as to form when so filed in all material respects with the
requirements of the Exchange Act and the Regulations thereunder; the
Registration Statement has become, and on the Commencement Date is,
effective under the Act and, to the best of the knowledge of such
counsel, no proceedings for a stop order with respect thereto are
threatened or pending under Section 8 of the Act; and nothing has come
to the attention of such counsel that has caused 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, at the time the
Registration Statement became effective, at the time it was first
filed pursuant to Rule 424(b) of the Regulations under the Act or on
the Commencement Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(xiii) to the best of such counsel's knowledge and
information, there are no legal, governmental or regulatory
proceedings pending or threatened that are required to be disclosed in
the Registration Statement other than those disclosed therein.
In rendering the above opinions, Counsel for the Company and the Selling
Stockholder may rely, as the matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company, the Selling Stockholder
and the Company's subsidiaries and public officials. References to the
Prospectus in this Section 7(b) include any amendments or supplements thereto
at the date such opinion is rendered.
(c) Opinion of Counsel for the Agent. On the
Commencement Date and, if specified in any Terms Agreement, the Settlement Date
therefor, the Agent shall have received
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the favorable opinion dated as of the Commencement Date or such Settlement
Date, as the case may be, of Counsel for the Agent with respect to the matters
set forth in paragraphs (i), (ii), (vii), (ix), (x) and, except as to
Incorporated Documents, (xii) of Section 7(b) hereof,] and with respect to such
other matters as the Agent may reasonably require.
(d) Comfort Letter. On the Commencement Date and, if
specified in any Terms Agreement, the Settlement Date therefor, a letter dated
as of the Commencement Date or such Settlement Date, as the case may be, from
Ernst & Young LLP, confirming that they are independent public accountants
within the meaning of the Act and the Regulations thereunder with respect to
the Company, the Selling Stockholder and the Company's subsidiaries and stating
in effect that:
(i) in their opinion, the audited consolidated
financial statements and financial statement schedules included or
incorporated by reference in the Registration Statement examined by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and in each
case the Regulations thereunder;
(ii) on the basis of a reading of the unaudited
consolidated financial statements included or incorporated by
reference in the Registration Statement and the related unaudited
consolidated financial statements from which such amounts were
derived, the latest available interim unaudited consolidated financial
statements of the Company, inquiries of officials of the Company
responsible for financial and accounting matters and a reading of the
minutes of meetings of the shareholders and the Board of Directors of
the Company and committees thereof through a specified date not more
than three Business Days prior to the date of their letter, nothing
came to their attention that caused them to believe that: (A) the
unaudited consolidated financial statements included or incorporated
by reference in the Registration Statement were not determined in
accordance with generally accepted accounting principles applied on a
basis substantially consistent with that of the corresponding amounts
in the audited financial statements included or incorporated by
reference in the Registration Statement; (B) for the twelve months
ended as of the date of the latest available financial statements of
the Company, there were any decreases in revenues, earnings on common
stock or earnings per common share as compared with the comparable
period of the preceding
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year; (C) at the date of the latest available interim consolidated
balance sheet read by them and at a subsequent date not more than
three Business Days prior to the date of such letter, there was any
change in the capital stock [(except for sales under the Company's
Stock Purchase Plan)] or long-term debt of the Company or any
decrease in its net assets as compared with the amounts shown in the
most recent consolidated balance sheet included or incorporated by
reference in the Registration Statement, except in all instances for
changes or decreases that the Registration Statement, as amended or
supplemented, discloses have occurred or will occur, or for changes or
decreases described in such letter that are reasonably satisfactory to
the Agent;
(iii) if unaudited pro forma financial statements
are included or incorporated by reference in the Registration
Statement, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the company acquired
or to be acquired who have responsibility for the financial and
accounting matters and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention
that caused them to believe that the pro forma financial statements do
not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of the Regulation S-X or that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements; and
(iv) covering such other matters as the Agent
shall reasonably request.
(e) Certificate as to No Material Adverse Change, Etc.
On the Commencement Date and on each Settlement Date in respect of a Terms
Agreement, there shall not have been, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as may otherwise be stated therein or contemplated thereby, any material
adverse change in the condition of the Company and its subsidiaries taken as
a whole, financial or otherwise, or in the earnings, affairs or business
prospects of the Company
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and its subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, and the Agent shall have received a certificate of the
Company signed by the President, the Executive Vice President or any other Vice
President of the Company reasonably satisfactory to the Agent, dated as of the
Commencement Date or, if specified in such Terms Agreement, the Settlement Date
therefor, as the case may be, to the effect that (i) there has been no such
material adverse change, (ii) the other representations and warranties
contained in this Agreement are true and correct with the same force and effect
as though expressly made on and as of the Commencement Date or such Settlement
Date, as the case may be, (iii) the Company and the Selling Stockholder have
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement or such Terms Agreement, as the
case may be, on or prior to the Commencement Date or such Settlement Date, as
the case may be, 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 threatened by the Commission.
(f) Other Documents. On the Commencement Date, and on
each Settlement Date in respect of a Terms Agreement, Counsel for the Agent
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the sale of
the Shares as herein contemplated and related proceedings, or in order to
evidence the accuracy or completeness of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained, and
all proceedings taken by the Company and the Selling Stockholder in connection
with the sale of the Shares as herein contemplated shall be satisfactory in
form and substance to the Agent and Counsel for the Agent.
In case any of the conditions specified above in this Section
7 shall not have been fulfilled, this Agreement or any applicable Terms
Agreement may be terminated by the Agent upon mailing or delivering written
notice thereof to the Company and the Selling Stockholder. Any such
termination shall be without liability of any party to the other party except
as otherwise provided in Section 6(h) hereof and except for any liability under
Section 10 hereof.
8. Suspension of Offers and Solicitations. At any time
and from time to time after the Commencement Date (except any such time that
the Agent owns any Shares purchased as principal that are held for resale to
others in accordance with the terms of this Agreement), the Selling
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Stockholder may in its sole discretion instruct the Agent in writing (which
shall be substantially in the form of Exhibit D hereto and which may take the
form of an exchange of any standard form of written telecommunication between
the Selling Stockholder and the Agent) to suspend solicitations of offers to
purchase, and offers for the sale of, the Shares as provided herein and in the
Procedures. If at any such time, or at any time that the Selling Stockholder
has otherwise notified the Agent to suspend such solicitation and offers under
this Agreement, there shall be any sales of Shares by the Selling Stockholder
not yet settled outstanding, the Selling Stockholder will promptly advise the
Agent whether such sales may be settled and whether the Prospectus as then in
effect may be delivered in connection with the settlement of such sales. If
the Selling Stockholder determines that such sales may not be settled or that
such Prospectus may not be so delivered, the Agent will use its best efforts to
arrange for the cancellation of such sales, but the Company and the Selling
Stockholder shall have the sole responsibility for, and shall hold the Agent
harmless from, any losses, claims, damages or liabilities (and expenses in
connection therewith) that may result from the inability to make settlement of
such sales.
9. Additional Representations and Warranties and
Agreements of the Company and the Selling Stockholder. The Company and the
Selling Stockholder jointly and severally represent and warrant and agree that:
(a) Affirmation of Representations and Warranties. Each
authorization by the Company and the Selling Stockholder to the Agent to
solicit offers to purchase the Shares as provided in the Procedures shall be
deemed to be an affirmation that the representations and warranties of the
Company and the Selling Stockholder contained in this Agreement are true and
correct at the time of such authorization, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
of and payment for Shares sold pursuant to such authorization as provided in
Section 4 hereof, in each case as though made at and as of each such time
(except that such representations and warranties shall be deemed to relate to
the Registration Statement and the Prospectus as amended or supplemented to
each such time).
(b) Subsequent Delivery of Certificates. Each time that
the Registration Statement or the Prospectus shall be amended or supplemented,
the Company and the Selling Stockholder shall furnish or cause to be furnished
forthwith to the Agent a certificate of the Company and the Selling Stockholder
in form and substance satisfactory to the Agent
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in its reasonable judgment to the effect that the statements contained in the
certificate referred to in Section 7(e) hereof that was last furnished to the
Agent are true and correct at the time of such amendment or supplement or
filing as though made on and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and the Prospectus as amended
or supplemented to such time) or, in lieu of such certificate, a certificate,
in form and substance satisfactory to the Agent in its reasonable judgment, of
the same general tenor as the certificate referred to in said Section 7(e) but
modified to relate to the Registration Statement and the Prospectus as amended
or supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time
that the Registration Statement or the Prospectus shall be amended or
supplemented, the Company and the Selling Stockholder shall furnish or cause to
be furnished forthwith to the Agent a favorable opinion of Counsel for the
Company and the Selling Stockholder, dated the date of delivery thereof and in
form and substance satisfactory to Counsel for the Agent, of the same tenor as
the opinion required by clauses (vi) and (xii) of Section 7(b) hereof but
modified to relate to the Registration Statement and the Prospectus as amended
or supplemented to the date of such opinion or, in lieu of such opinion,
Counsel for the Company and the Selling Stockholder may furnish to the Agent a
letter to the effect that the Agent may rely on the opinion last furnished to
the Agent to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time
that the Registration Statement or the Prospectus shall be amended or
supplemented to set forth amended or supplemental financial information, the
Company shall cause Ernst & Young LLP to furnish to the Agent a letter, dated
the date of filing such amendment or supplement or document with the
Commission, in form and substance satisfactory to the Agent in its reasonable
judgment, of the same general tenor as the letter referred to in Section 7(d)
hereof but modified to the extent necessary to reflect changes in the financial
information included or incorporated by reference in the Registration Statement
and the Prospectus as then amended or supplemented since the date of the last
previous such letter furnished to the Agent.
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Notwithstanding the foregoing, it is agreed that if, at any
time and from time to time during the term of this Agreement, the Selling
Stockholder should deliver to the Agent instructions to suspend solicitations
of offers to purchase, and offers for the sale of, Shares pursuant to Section
6(e) or 8 hereof, then during the period of any such suspension the Company and
the Selling Stockholder shall be relieved of its obligation to provide to the
Agent the certificates, the opinions of counsel and the comfort letters
required pursuant to Sections 9(b), 9(c) and 9(d), respectively, hereof. Upon
instructions to commence such solicitations and offers pursuant to Section 2(a)
hereof, the Company and the Selling Stockholder shall deliver to the Agent,
prior to the resumption of such solicitations and offers, the certificate,
opinion of counsel and comfort letter required pursuant to Sections 9(b), 9(c)
and 9(d), respectively, hereof, except they shall be modified to relate to the
Registration Statement and the Prospectus as amended or supplemented to the
date of such commencement.
10. Indemnification. (a) Indemnification of the Agent.
The Company and the Selling Stockholder, severally and jointly, will indemnify
and hold harmless the Agent and each person, if any, who controls the Agent
within the meaning of Section 15 of the 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 Incorporated Documents and 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 related preliminary prospectus, the Prospectus (or any amendment
or supplement thereto) or the Incorporated Documents, or the omission
or alleged omission therefrom of a material fact necessary in order
make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to
the Company and the Selling Stockholder by the Agent expressly for use
in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); provided, however, that any such indemnity with
respect to a Prospectus
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shall not inure to the benefit of the Agent (or of any person
controlling the Agent) on account of any losses, liabilities, claims
or damages arising from the sale of Shares to any person if any
amendments or supplements to such Prospectus shall have been furnished
to the Agent on a timely basis to permit the Agent to send or give to
such person, with or prior to the written confirmation of such sale, a
copy of such amended or supplemented Prospectus, except the
Incorporated Documents, and the untrue statement or omission of a
material fact contained in such Prospectus and giving rise to such
losses, liabilities, claims or damages was corrected in such amended
or supplemented Prospectus (including the Incorporated Documents);
(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, 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 the Selling Stockholder; and
(iii) against any and all expense whatsoever, as
incurred, in investigating, preparing or defending against any
litigation, 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 clause (i) or (ii) above.
(b) Indemnification of Company and the Selling
Stockholder. The Agent agrees to indemnify and hold harmless the Company and
the Selling Stockholder, their directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company and
the Selling Stockholder within the meaning of Section 15 of the Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 10(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company and the Selling
Stockholder by the Agent expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
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(c) General. Each indemnified party shall give prompt
notice to each indemnifying party of any action commenced against it in respect
of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve it from any liability except to the extent
that it has been prejudiced in any material respect by such failure or from any
liability that it may have to such indemnified party otherwise than on account
of this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them that are different from or in addition to those available to such
indemnifying party, in which case the indemnifying party cannot assume the
control of the defense. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees or expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action except under the circumstances stated above. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) Contribution. If the indemnification provided for in
this Section 10 is unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a) or (b) hereof in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder on the one hand and the Agent on the hand from the offering
of the relevant Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 10(c) hereof
and such indemnifying party was prejudiced in a material respect by such
failure, then each indemnifying party shall contribute to such amount paid or
payable by
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such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the
Selling Stockholder on the one hand and the Agent on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholder on the one hand and the Agent on the other
hand shall be deemed to be in the same proportion as the total net proceeds
from the relevant offering (before deducting expenses received by the Company)
bear to the total commissions received by the Agent. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and the
Selling Stockholder or the Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Stockholder and the Agent agree that it
would not be just and equitable if contribution pursuant to this Section 10(d)
were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to above in
this Section 10(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 10(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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.
11. Survival of Representations and Warranties and
Agreements. The indemnity and other agreements of the Company, the Selling
Stockholder and the Agent contained in Section 3(f) and 10 hereof and the
representations, warranties and other statements of the Company and the
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Selling Stockholder set forth in this Agreement or made by the Company and the
Selling Stockholder pursuant to this Agreement shall remain in full force and
effect, regardless of (a) any termination of this Agreement or any Terms
Agreement, (b) any investigation made by or one behalf of the Agent or any of
its controlling persons or by or on behalf of the Company and the Selling
Stockholder or any of their officers, directors or controlling persons and (c)
acceptance of delivery of and payment for Shares sold hereunder.
12. Termination. (a) Termination of this Agreement.
This Agreement may be terminated at any time by any party hereto upon the
giving of written notice of such termination to the other parties hereto
effective at the close of business on the date such notice is received.
(b) Termination of a Terms Agreement. The Agent may, by
notice to the Company and the Selling Stockholder, terminate a Terms Agreement
if, at any time after the date of this Agreement and at or prior to the
Settlement Date in respect thereof, (i) a general bank moratorium shall have
been declared by Federal authorities or authorities in the State of New York or
Delaware that in the Agent's judgment would materially restrict a free market
for the Shares, (ii) there shall have occurred any suspension of trading of any
securities of the Company on any exchange or in any over-the-counter market or
in securities generally on the NYSE or there shall have been established by the
NYSE, the PSE, the American Stock Exchange, Inc., the National Association of
Securities Dealers, Inc. or the Commission, or by any federal or state agency
or by the decision of any court, any limitations on the prices for such trading
or any restrictions on the distribution of securities, (iii) there shall have
occurred any outbreak of hostilities, or escalation thereof, or other national
or international calamity or crisis, the effect of which on the financial
markets of the United States shall be as such as to make it impracticable for
the Agent to enforce contracts for the sale of the Shares, (iv) the Company
shall have sustained a substantial loss (whether or not covered by insurance)
by fire, flood, accident or other calamity that renders it impractical to
consummate the sale of the Shares and the delivery of the Shares by the Agent
or (v) there shall have occurred a change in financial or economic conditions
generally the effect of which on the Company or the financial markets in the
Agent's reasonable judgment is so material and adverse as to make it
impracticable or inadvisable to consummate the sale and delivery of any Shares
by the Agent.
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(c) General. In the event of any termination under
Section 12(a) or 12(b) hereof, no party will have any liability to any other
party hereto, except that (i) the Agent shall be entitled to any commission
earned in accordance with Section 3(c) hereof, (ii) if at the time of
termination (A) the Agent shall own any Shares purchased pursuant to a Terms
Agreement with the intention of reselling them or (B) an offer to purchase any
of the Shares has been accepted by the Selling Stockholder but the time of
delivery to the purchaser or his agent of the Shares relating thereto has not
occurred, the covenants set forth in Sections 6 and 9 hereof shall remain in
effect until such Shares have been resold or delivered, as the case may be and
(iii) the covenants set forth in Sections 6(f) and 6(h) hereof, the indemnity
and contribution agreement set forth in Section 10 hereof and the provisions of
Sections 11 and 16 hereof shall remain in effect.
13. Notices. Except as otherwise specifically provided
herein or in the Procedures, all statements, instructions, requests, notices
and advances hereunder and under any applicable Terms Agreement shall be in
writing (or by telephone or telegram if subsequently confirmed in writing), and
shall be deemed to have been duly given if mailed, delivered or transmitted by
any standard form of telecommunication to (a) in the case of the Agent, Xxxxx
Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, Telefax No.: 000-000-0000, with, in the case of instructions
given by the Company and the Selling Stockholder pursuant to Section 2(a) or 8
hereof, copies to Xxxxxxx Xxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and Telefax No.: 000-000-0000, and to Xxxxxx X. Xxxx, Esq. at such
address, Telefax No.: 000-000-0000, respectively, and (b) in the case of the
Company and the Selling Stockholder, The Xxxxxxxx Companies, Inc., One
Xxxxxxxx Center, Tulsa, OK 74172, Attention: X. Xxxxxx Xxxxx, General Counsel,
Telefax No.: [000-000-0000].
14. Parties. This Agreement and any applicable
Terms Agreement shall inure solely to the benefit of the Company, the Selling
Stockholder and the Agent and, to the extent provided in Sections 10 and 11
hereof, to any officer or director of the Company and the Selling Stockholder
or to any person who controls the Company and the Selling Stockholder or the
Agent, and their respective successors. No other person, partnership,
association or corporation shall acquire or have any right under or by virtue
of this Agreement or any Terms Agreement. The term "successors" shall not
include any purchaser of any Shares merely because of such purchase. The
respective rights and obligations of
28
29
the Company, the Selling Stockholder and the Agent hereunder may not be
assigned, transferred or contracted to another.
15. Arm's Length Dealing. This Agreement and any
applicable Terms Agreement have been negotiated at arm's length between the
Agent, the Company and the Selling Stockholder, which regularly issues and
sells securities in the public markets through investment bankers, and the
relationship created hereby or thereby is not intended to be one of customer
and member as the term "customer" is used in the provisions pertaining to the
protection of customers of the articles, bylaws, rules, regulations and
policies of the NYSE or the National Association of Securities Dealers, Inc.
16. Governing Law. This Agreement and any Terms
Agreement shall 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.
17. Captions. Captions to Sections of this Agreement
are included for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose or in any way affect the meaning of any
provisions of this Agreement.
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30
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company and the Selling
Stockholder a counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between the Agent, the Company and
the Selling Stockholder in accordance with its terms.
Very truly yours,
THE XXXXXXXX COMPANIES, INC.
By
---------------------------
Title:
XXXXXXXX HOLDINGS OF DELAWARE,
INC.
By
---------------------------
Title:
Confirmed, accepted and agreed,
as of the date first above written:
XXXXX XXXXXX INC.
By
------------------------------
Title:
30
31
EXHIBIT A
THE XXXXXXXX COMPANIES, INC.
1,197,618 Shares of Common Stock
XXXXXXXX HOLDINGS OF DELAWARE, INC.
Selling Stockholder
Commencement of Offers and Solicitations
_______________, 1995
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pursuant to Section 2(a) of the Sales Agency Agreement, dated
September __, 1995, between The Xxxxxxxx Companies, Inc. (the "Company"),
Xxxxxxxx Holdings of Delaware, Inc. (the "Selling Stockholder") and you (the
"Sales Agency Agreement") and the additional terms set forth below, the Selling
Stockholder hereby instructs you to commence solicitations of offers to
purchase, and offers for the sale of, up to the amount of shares of the
Company's Common Stock set forth above, or such other amount as shall be agreed
upon by the Selling Stockholder and you, in accordance with the terms and
conditions of the Sales Agency Agreement and the instructions (including volume
and price parameters) of authorized representatives of the Selling Stockholder
delivered in accordance with the Procedures (as defined in the Sales Agency
Agreement).
The Company and the Selling Stockholder reserve the right, in
their sole discretion, to instruct you, at any time and from time to time after
the date hereof, to suspend such solicitations and sales for any period of time
or
32
permanently in accordance with the provisions of the Sales Agency Agreement.
THE XXXXXXXX COMPANIES, INC.
By
-----------------------
Title:
XXXXXXXX HOLDINGS OF DELAWARE,
INC.
By
-----------------------
Title:
2
33
EXHIBIT B
THE XXXXXXXX COMPANIES, INC.
[ ] Shares of Common Stock
XXXXXXXX HOLDINGS OF DELAWARE, INC.
Selling Stockholder
Terms Agreement
_____________, 1995
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pursuant to the terms and conditions set forth in the Sales
Agency Agreement, dated September __, 1995, between The Xxxxxxxx Companies,
Inc. (the "Company"), Xxxxxxxx Holdings of Delaware, Inc. (the "Selling
Stockholder") and you (the "Sales Agency Agreement") and the additional terms
set forth below, you agree to purchase ______shares of the Company's Common
Stock (the "Shares") from the Selling Stockholder.
Purchase Price per Share:
Public Offering Price per Share:
Settlement Date and Time:
Form of Settlement:
Additional Terms:
If agreed to by you, the Company and the Selling Stockholder prior to the
execution hereof: The Company will not,
34
between the date hereof and the Settlement Date and Time set forth above,
without your prior consent, offer or sell, or enter into any agreement to sell,
any of its Common Stock, [except pursuant to the Company's Stock Purchase
Plan.]
[Indicate whether the Company and the Selling Stockholder authorizes you to
utilize a selling or dealer group in connection with the resale of the Shares
as required by Section 2(a) of the Sales Agency Agreement.]
[Indicate whether the legal opinion, accountant's letter and/or the officer's
certificate described in Sections 7(b), 7(c), 7(d) and 7(e), respectively, of
the Sales Agency Agreement will or will not be required.]
THE XXXXXXXX COMPANIES, INC.
By
----------------------------
Title:
XXXXXXXX HOLDINGS OF
DELAWARE, INC.
By
----------------------------
Title:
Confirmed, accepted and agreed,
as of the date first above written:
XXXXX XXXXXX INC.
By
-----------------------------
Title:
2
35
EXHIBIT C
THE XXXXXXXX COMPANIES, INC.
XXXXXXXX HOLDINGS OF DELAWARE, INC
(Selling Stockholder)
Common Stock Procedures
Pursuant to the Sales Agency Agreement dated as of September
__, 1995 (the "Sales Agency Agreement") between The Xxxxxxxx Companies, Inc.
(the "Company"), Xxxxxxxx Holdings of Delaware, Inc. (the "Selling
Stockholder") and Xxxxx Xxxxxx Inc. as exclusive sales agent ("Xxxxx Xxxxxx"),
up to 1,197,618 shares of the Company's common stock are being offered and
sold. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Sales Agency Agreement.
The Shares have been registered with the Commission under the
Act. _________________, acts as transfer agent and registrar for the Common
Stock (together with any successor transfer agent or registrar, the "Transfer
Agent").
Administrative procedures and specific terms of the offering
are explained below. Administrative responsibilities will be handled for the
Selling Stockholder by its Corporate Finance Department; accountable document
control and record-keeping responsibilities will be performed by the Selling
Stockholder's Corporate Cash Management Department.
36
2
I. Acceptance of The Selling Stockholder will have the sole right to give
Orders; orders to sell, and accept offers to purchase, Shares.
Authorized Instructions regarding offers and sales of Shares will be
Persons: given for the Selling Stockholder by __________, or by
another specifically named authorized representative of
the Selling Stockholder. Such instructions will be
accepted at Xxxxx Xxxxxx by Xxxxxx X. Xxxxxxx or Xxxx X. Xxxxxx,
or by another specifically named authorized representative of
Xxxxx Xxxxxx. Offers and sales of the Shares will be made
under volume and price parameters and with such
commissions as agreed upon between the Selling Stockholder
and Xxxxx Xxxxxx. Offers not complying with such terms
will be communicated telephonically prior to execution to
the authorized representative of the Selling Stockholder,
including specific prices on "block" transactions. The
Selling Stockholder may reject any offer to purchase
Shares in whole or in part. Xxxxx Xxxxxx may reject any
offer to purchase Shares in whole or in part in the
reasonable exercise of its discretion.
II. Settlement: Settlement will be as specified in Section 4 of the Sales
Agency Agreement unless another time, place of method of
settlement (e.g., same day for "cash" sales) is mutually
agreed upon by authorized representatives of Xxxxx Xxxxxx
and the Selling Stockholder.
37
3
III. Denominations: A single certificate evidencing the Shares for each day's
transactions will be delivered unless other instructions
are given to the Selling Stockholder by Xxxxx Xxxxxx at
least [48] hours prior to the Settlement Date. Such
certificate will be registered in the name of "Xxxxx
Xxxxxx Inc." unless otherwise directed by Xxxxx Xxxxxx at
least 48 hours prior to the Settlement Date.
IV. Details for With regard to Shares sold by the Selling Stockholder
Settlement: through the Agent, as agent, on any day, Xxxxx Xxxxxx will
advise the Selling Stockholder of the key details of any
transactions that take place by the end of such day.
Xxxxx Xxxxxx will communicate the following key details to
the Selling Stockholder's [Corporate Cash Management
Department] by telephone (promptly confirmed by facsimile
transmission):
1. The number of Shares sold.
2. The prices at which Shares were sold.
3. The commission payable to Xxxxx Xxxxxx by the
Selling Stockholder .
4. Other applicable charges, such as transfer taxes
and fees of the Commission.
38
4
5. The net proceeds payable to the Selling
Stockholder.
6. The Settlement Date or Dates.
7. Method of settlement (whether Shares will be
represented by a global security registered in
the name of a nominee of The Depository Trust
Company ("DTC") or a certificate issued in
definitive form).
8. The names and addresses of registered owners of
certificates evidencing the Shares if other than
Xxxxx Xxxxxx.
39
5
The certificate or certificates evidencing the Shares may
be obtained by Xxxxx Xxxxxx one Business Day prior to the
Settlement Date at the offices of DTC, or such other
offices as shall be agreed upon by the Selling Stockholder
and Xxxxx Xxxxxx, against delivery of a trust receipt. On
the Settlement Date such certificate or certificates will
be released to Xxxxx Xxxxxx. Simultaneously therewith
Xxxxx Xxxxxx will transfer to the Selling Stockholder's
account at such institution as the Selling Stockholder may
direct the amount to be paid to the Selling Stockholder in
accordance with the Sales Agency Agreement.
V. Confirmation: For each order to purchase Shares solicited by the Agent
and accepted by or on behalf of the Selling Stockholder,
Xxxxx Xxxxxx will issue a written confirmation by
facsimile transmission to Xxxxxxxx Holdings of Delaware,
Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000,
Attention: __________, containing the key details listed
above.
40
6
VI. Certificate The Selling Stockholder will deliver certificates
Deliveries: evidencing the Shares to Xxxxx Xxxxxx only against payment
therefor as specified in Section 4 of the Sales Agency
Agreement and as set forth in the last paragraph of
"Details for Settlement" under Part IV of these
Procedures. See "Delivery of Prospectus" under Part IX of
these Procedures as to the requirement to deliver a
current Prospectus with sales transactions.
VII. Fails: Failure of payment due will be subject to the regulations
and rules of the NYSE or the PSE, as applicable, and the
provisions of Section 2(a) of the Sales Agency Agreement.
41
7
VIII. Suspension of The Selling Stockholder may instruct Xxxxx Xxxxxx to
Solicitation; commence or suspend solicitations of offers to purchase,
Amendment or and offers for the sale of, Shares at any time in
Supplement: accordance with the Sales Agency Agreement. Upon receipt
of such instructions to suspend, Xxxxx Xxxxxx will
forthwith suspend such activities until such time as the
Selling Stockholder has advised Xxxxx Xxxxxx that such
activities may be resumed. If the Selling Stockholder
decides to amend or supplement the Registration Statement
or the Prospectus, it will promptly advise Xxxxx Xxxxxx
and will furnish Xxxxx Xxxxxx with the proposed amendment
or supplement as provided in the Sales Agency Agreement.
In the event that at the time Xxxxx Xxxxxx suspends such
activities there shall be any sales not yet settled
outstanding, the Selling Stockholder will, consistent with
its obligations under the Sales Agency Agreement, promptly
advise Xxxxx Xxxxxx whether such sales may be settled and
whether copies of the Prospectus as in effect at the time
of the suspension may be delivered in connection with the
settlement of such sales.
Xxxxx Xxxxxx shall have the right in its sole discretion,
upon notice thereof to the Selling Stockholder, to
commence or suspend at any time offers to sell and
solicitations of offers to buy the Shares.
42
8
IX. Delivery of Prior to any auction market sales of Shares on the NYSE or
Prospectus: the PSE, copies of the Prospectus as most recently amended
or supplemented must be filed with such Exchange pursuant
to Rule 153 of the Regulations under the Act. A copy of
the Prospectus as most recently amended or supplemented
must also accompany each written confirmation of a sale of
Shares by Xxxxx Xxxxxx as agent to a customer of Xxxxx
Xxxxxx, or of a sale of Shares by Xxxxx Xxxxxx, or of a
sale of Shares by Xxxxx Xxxxxx as principal, in each case
otherwise than in the auction market. As used above, the
term Prospectus does not include any Incorporated
Documents.
X. Payment of Xxxxx Xxxxxx will send a written confirmation by facsimile
Selling transmission to the Selling Stockholder with respect to
Commissions each transaction setting forth the selling commissions
and Transfer and transfer taxes payable in connection therewith. Such
Taxes amounts are obligations of the Selling Stockholder and will
be paid by the Selling Stockholder to the Agent in
New York Clearing House (next day) funds on the applicable
Settlement Date or, if agreed upon by the Selling Stockholder
and the Agent, will be "netted" against proceeds paid to
the Selling Stockholder on the applicable Settlement Date.
XI. Advertising The Selling Stockholder will determine with Xxxxx Xxxxxx
Costs: the amount of advertising that may be appropriate in
offering the Common Stock. Advertising expenses will be
paid by the Selling Stockholder.
43
EXHIBIT D
THE XXXXXXXX COMPANIES, INC.
[XXXXXXXX HOLDINGS OF DELAWARE, INC.
(Selling Stockholder)]
1,197,618 Shares of Common Stock
Suspension of Offers and Solicitations
_______________, 1995
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pursuant to Section 8 of the Sales Agency Agreement, dated
September __, 1995, between The Xxxxxxxx Companies, Inc. (the "Company"),
Xxxxxxxx Holdings of Delaware, Inc. (the "Selling Stockholder") and you (the
"Sales Agency Agreement") and the additional terms set forth below, the Company
and the Selling Stockholder hereby instructs you to suspend solicitations of
offers to purchase, and offers for the sale of, the amount of shares of the
Company's Common Stock set forth above, or such other amount as may be agreed
upon by the Company, the Selling Stockholder and you (the "Shares"), in
accordance with the terms and conditions of the Sales Agency Agreement. The
Company and the Selling Stockholder understands that at the date hereof you
do not own any shares of the Company's Common Stock purchased as principal that
are held for resale to others in accordance with the terms of the Sales Agency
Agreement.
[In the event that at such time there shall be any sales of
the Shares by the Selling Stockholder not yet settled outstanding, indicate
whether such sales may be settled and whether the Prospectus (as defined in the
Sales Agency Agreement), as then in effect, may be delivered in
44
connection with the settlement of such sales. If the Selling Stockholder
determines that such sales may not be settled or that such Prospectus may not
be so delivered, indicate that the Agent will use its best efforts to arrange
for the cancellation of such sales, but the Selling Stockholder and the Company
shall have the sole responsibility for, and shall hold the Agent harmless from,
any losses, claims, damages or liabilities (and expenses in connection
therewith) that may result from the inability to make settlement of such
sales.]
After giving effect to the sales of the Shares pursuant to the
Sales Agency Agreement at or prior to the date hereof, the amount of shares of
the Company's Common Stock that has not been offered and sold pursuant to the
Sales Agency Agreement is ________ shares.
The Company and the Selling Stockholder reserve the right,
in their sole discretion, to instruct you, at any time and from time to time
after the date hereof, to commence such solicitations and sales for any period
of time in accordance with the provisions of the Sales Agency Agreement.
Please acknowledge that at the date hereof you do not own any
Shares (as defined in the Sales Agency Agreement) purchased as principal that
are held for resale to others in accordance with the terms of the Sales Agency
Agreement by signing and returning to the Company and the Selling Stockholder a
counterpart hereof.
THE XXXXXXXX COMPANIES, INC.
By
------------------------
Title:
XXXXXXXX HOLDINGS OF DELAWARE,
INC.
By
------------------------
Title:
2
45
Acknowledged, as of the date
first above written:
XXXXX XXXXXX INC.
By
-------------------------
Title:
3
