EXHIBIT 1
XxXxxxxxx Xxxxxxx Corporation
3,500,000 Shares
Common Stock, par value $1.00 per share
Underwriting Agreement
July __, 1997
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XxXxxxxxx Xxxxxxx Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell to you (the "Underwriter")
3,500,000 shares of Common Stock, par value $1.00 per share, of the
Company (the "Shares"). The shares of Common Stock of the Company to
be outstanding after giving effect to the sale of the Shares are
herein referred to as the "Stock". The Stock, including the Shares,
will have attached thereto rights (the "Rights") issued pursuant to a
Rights Agreement (the "Rights Agreement") amended and restated as of
May 31, 1996 between the Company and First Chicago Trust Company of
New York.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-3, including a
prospectus, relating to 3,500,000 shares of Common Stock, par value
$1.00 per share, of the Company, and related Rights (the "Shelf
Securities"), to be issued from time to time by the Company and shall
promptly hereafter file with the Commission pursuant to Rule 424 under
the Securities Act a prospectus supplement specifically relating to
the Shares. The registration statement as amended to the date of this
Agreement, including information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule
430A under the Securities Act, is referred to in this Agreement as the
"Registration Statement". The term "Basic Prospectus" means the
related prospectus covering the Shelf Securities in the form first
used to confirm sales of the Shares. The term "Prospectus" means the
Basic Prospectus as supplemented by the prospectus supplement
specifically relating to the Shares in the form first used to confirm
sales of the Shares (the "Prospectus Supplement"). The term
"preliminary prospectus" means any preliminary form of the Prospectus.
If the Company has filed an abbreviated registration statement
pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of the Basic Prospectus, such
preliminary prospectus or the Prospectus, as the case may be and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") that are deemed to be
incorporated by reference therein.
The Company has entered into an Agreement and Plan of Merger
dated as of December 14, 1996 (the "Merger Agreement") among The
Boeing Company, a Delaware corporation ("Boeing"), West Acquisition
Corp., a Maryland corporation and a wholly-owned subsidiary of Boeing
("Sub"), and the Company, which provides for the merger of Sub with
and into the Company (the "Merger") with the Company surviving as a
wholly-owned subsidiary of Boeing. Subject to the terms and conditions
of the Merger Agreement, each share of Stock outstanding immediately
prior to the effective time of the Merger will be converted into 1.3
shares of Common Stock, par value $5.00 per share, of Boeing ("Boeing
Stock"). If the Merger is consummated prior to the expiration of the
stockholder rights plan of Boeing (the "Boeing Rights Plan"), subject
to the terms and conditions of the Merger Agreement, each share of
Boeing Stock issued in respect of Stock outstanding immediately prior
to the consummation of the Merger will be issued with a corresponding
right (each, a "Boeing Right") which will expire on August 7, 1997
pursuant to the terms of the Boeing Rights Plan. The Company
understands that Boeing has entered into an agreement with the
Underwriter (the "Boeing Agreement") dated as of the date hereof to
induce the Underwriter to enter into this Agreement. The Company has
advised the Underwriter that the primary purpose of the sale of the
Shares is to facilitate the treatment of the Merger as a pooling of
interests.
The Company hereby agrees with the Underwriter as follows:
1. The Company agrees to issue and sell the Shares to the
Underwriter as hereinafter provided, and the Underwriter, upon the
basis of the representations and warranties herein contained, but
subject to the conditions stated in Section 6 hereof, agrees to
purchase the Shares from the Company at a purchase price per share of
$ .
2. The Company understands that the Underwriter intends (i) to
make a public offering of the Shares and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus; in each case,
subject to the terms and conditions set forth herein.
3. Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Company to
the Underwriter on , 1997, or at such other time on the same or such
other date, not later than the third Business Day thereafter, as the
Underwriter and the Company may agree upon in writing. The time and
date of such payment is referred to herein as the "Closing Date". As
used herein, the term "Business Day" means any day other than a day on
which banks are permitted or required to be closed in New York City.
Payment for the Shares shall be made against delivery to the
Underwriter of the Shares registered in such names and in such
denominations as the Underwriter shall request in writing not later
than two full Business Days prior to the Closing Date, with any
transfer taxes payable in connection with the transfer to the
Underwriter of the Shares duly paid by the Company. The certificates
for the Shares will be made available for inspection and packaging by
the Underwriter at the office of X.X. Xxxxxx Securities Inc. set forth
above not later than 1:00 P.M., New York City time, on the Business
Day prior to the Closing Date.
4. The Company represents and warrants to the Underwriter
that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, (i) complied when so
filed in all material respects with the Securities Act, and (ii) did
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 that the representation and
warranty set forth in the preceding subclause (ii) of this paragraph
shall not apply to any statements or omissions (x) made in reliance
upon and in conformity with information relating to the Underwriter
furnished to the Company in writing by the Underwriter expressly for
use therein, (y) relating exclusively to Boeing or (z) relating to
items identified as adjustments in the pro forma financial statements
relating exclusively to Boeing;
(b)(i) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; (ii) the Registration Statement and
Basic Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act; and (iii) the Registration Statement as of its
effective date, the Registration Statement as supplemented by the
Prospectus Supplement as of the date of this Agreement, any amendment
to the Registration Statement as of the effective date of such
amendment, the Prospectus as of the date of this Agreement and the
Prospectus as amended or supplemented as of the date of such amendment
or supplement does not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the
Closing Date will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; except that the representation and warranty set forth in
the preceding subclause (iii) of this paragraph shall not apply to
statements or omissions in the Registration Statement or the
Prospectus (x) made in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in
writing by the Underwriter expressly for use therein, (y) relating
exclusively to Boeing or (z) relating to items identified as
adjustments to the pro forma financial statements relating exclusively
to Boeing;
(c) the documents incorporated by reference in the
Prospectus when they were filed with the Commission conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable and none of such documents contained an
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that this representation and warranty shall not
apply to (i) any documents relating exclusively to Boeing and (ii)
items identified as adjustments in the pro forma financial statements
relating exclusively to Boeing;
(d) the financial statements, and the related notes
thereto, of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and
the results of their operations and cash flows for the periods
specified, in each case in accordance with generally accepted
accounting principles in the United States consistently applied during
the periods involved (except as otherwise disclosed in the notes
thereto) and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein; and the pro forma financial
information, and the related notes thereto, included or incorporated
by reference in the Registration Statement and the Prospectus has been
prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable and are based upon
good faith estimates and assumptions believed by the Company to be
reasonable to, principally among other items, conform the accounting
policies of the Company and Boeing (but do not reflect any adjustments
related to the issuance of the Shares contemplated hereby);
(e) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been any event, occurrence or facts that has resulted in a
material adverse change in or affecting the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus or in connection with the European
Commission, the Merger Task Force of the European Commission, or any
related body administered by the European Commission;
(f) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland and has the power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified to do business and is in good standing in each jurisdiction
in which the ownership of its properties or the conduct of its
businesses requires such qualification, except for such jurisdictions
in which the failure to be so qualified or to be in good standing
would not individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(g) each subsidiary of the Company that is a
"significant subsidiary" within the meaning of Rule 405 promulgated by
the Commission under the Securities Act (each, a "Significant
Subsidiary") is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, has
the power and authority to own its properties and to carry on its
business as described in the Prospectus, and is duly qualified to do
business and is in good standing in each jurisdiction in which the
ownership of its property or the conduct of its business requires such
qualification, except for such jurisdictions in which the failure to
be so qualified or to be in good standing would not individually or in
the aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all the outstanding shares of
capital stock of each such Significant Subsidiary have been duly
authorized and validly issued, are fully-paid and non-assessable, and
(except, in the case of foreign subsidiaries, for directors'
qualifying shares) are owned by the Company, directly or indirectly,
free and clear of all liens, charges, encumbrances, security
interests, claims and other restrictions, except for liens, charges,
encumbrances, security interests, claims or restrictions (i) contained
in credit agreements and similar instruments to which the Company is a
party under which no event of default has occurred or arisen or (ii)
which would not individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole;
(h) this Agreement has been duly authorized, executed
and delivered by the Company;
(i) the Company has an authorized capitalization as set
forth in the Prospectus and such authorized capital stock conforms as
to legal matters to the description thereof set forth in the
Prospectus, and all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully-paid
and non-assessable and are not subject to any preemptive or similar
rights; and, except as described in or expressly contemplated by the
Prospectus or the Merger Agreement, and except for options and shares
of Common Stock granted pursuant to employee incentive or benefit
plans, programs, and arrangements and non-employee director plans,
there are no outstanding subscription rights, warrants, options or
other arrangements obligating the Company or any of its subsidiaries
to issue any shares of capital stock;
(j) the Shares to be issued and sold by the Company
hereunder have been duly authorized, and, when issued and delivered to
and paid for by the Underwriter in accordance with the terms of this
Agreement, will be duly issued and will be fully paid and
non-assessable and will conform to the descriptions thereof in the
Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights;
(k) the Rights Agreement has been duly authorized,
executed and delivered by the Company; the Rights have been duly
authorized by the Company and, when issued upon issuance of the
Shares, will be validly issued, and the shares of Series A Junior
Participating Preferred Stock issuable upon exercise of the Rights
have been duly authorized by the Company and validly reserved for
issuance, and when issued upon the exercise of the Rights in
accordance with the terms of the Rights Agreement, will be validly
issued, fully paid and non-assessable;
(l) the Company is not and with the giving of notice or
lapse of time or both would not be, in violation of or in default
under, its charter (the "Charter") or By-laws, except for violations
and defaults which individually or in the aggregate are not material
to the Company and its subsidiaries taken as a whole; the issue and
sale of the Shares and the performance by the Company of its
obligations under this Agreement and the Merger Agreement and the
consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the
terms or provisions of any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will any such action result
in any violation of the provisions of the Charter or the By-laws of
the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties, except for
such conflicts, breaches or violations (other than with respect to the
Charter and the By-laws of the Company) which would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole and except as it concerns the laws, rules and regulations
administered by the European Commission, the Merger Task Force of the
European Commission, or any related body administered by the European
Commission; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the transactions
contemplated by this Agreement or the Merger Agreement, except such
consents, approvals, authorizations, orders, licenses, registrations
or qualifications (i) as have been obtained under the Securities Act
and as may be required under state securities or Blue Sky Laws in
connection with the purchase and distribution of the Shares by the
Underwriter, (ii) [in connection with the Merger, as have been
obtained or made under the Maryland General Corporation Law, the
Securities Act, the Exchange Act, the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, Section 4043 of the Employee
Retirement Income Security Act of 1974, as amended, the Communication
Act of 1934, as amended, any non-United States competition, antitrust
and investment laws and the securities or blue sky laws of the various
states and other than any necessary approvals of the United States
government or any agencies, departments or instrumentalities thereof],
[(iii) from the European Commission, the Merger Task Force of the
European Commission, or any related body administered by the European
Commission with respect to the Merger] or (iv) such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications the failure to obtain which would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
or substantially impair or delay the consummation of the transactions
contemplated by this Agreement or the Merger Agreement;
(m) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be
the subject which, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
material adverse effect on the financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, except such investigations, actions, suits or
proceedings by the European Commission, the Merger Task Force of the
European Commission, or any other body administering, enforcing or
interpreting the laws, rules, and regulations of the European
Commission;
(n) the Company has not taken nor will it take,
directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Common Stock;
(o) the Merger Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid and
binding agreement of the Company; and
(p) the Merger has been duly authorized by all
necessary corporate action of the Company, except for approval of the
Merger by the shareholders of the Company, and, when all of the
conditions to the Merger contained in the Merger Agreement have been
fulfilled or waived (where permissible) and the articles of merger
relating to the Merger have been filed with and accepted for record by
the State Department of Assessments and Taxation of Maryland in
accordance with the Merger Agreement, the Merger will be effective in
accordance with the laws of the State of Maryland.
5. The Company covenants and agrees with the Underwriter as
follows:
(a) to use its best efforts, to file, if required, the
Prospectus with the Commission within the time periods specified by
Rule 424(b) and Rule 430A under the Securities Act and to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering
or sale of the Shares; and to furnish copies of the Prospectus to the
Underwriter in New York City prior to 10:00 a.m., New York City time,
on the Business Day next succeeding the date of this Agreement in such
quantities as the Underwriter may reasonably request;
(b) to deliver, at the expense of the Company, to the
Underwriter two signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein (other than
documents relating exclusively to Boeing), and, during the period
mentioned in paragraph (e) below, to the Underwriter as many copies of
the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference (other than documents relating
exclusively to Boeing) therein as the Underwriter may reasonably
request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, to furnish to the
Underwriter a copy of the proposed amendment or supplement for review
and not to file any such proposed amendment or supplement to which the
Underwriter reasonably objects in writing unless, in the judgment of
the Company and its counsel, such amendment is required by law;
(d) to advise the Underwriter promptly, and to confirm
such advice in writing (i) when any amendment to the Registration
Statement has been filed or becomes effective, (ii) when any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish the Underwriter with copies thereof, (iii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose, and (v) of the receipt by the Company of
any notification with respect to any suspension of the qualification
of the Shares for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order, or of any
order preventing or suspending the use of any preliminary prospectus
or the Prospectus, or of any order suspending any such qualification
of the Shares, or notification of any such order thereof and, if
issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date
of the public offering of the Shares as in the reasonable opinion of
counsel for the Underwriter a prospectus relating to the Shares is
required by law to be delivered in connection with sales by the
Underwriter or any dealer, any event shall occur as a result of which
it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to
the Underwriter and to the dealers (whose names and addresses the
Underwriter will furnish to the Company) to which Shares may have been
sold by the Underwriter and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
(f) to endeavor to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Underwriter shall reasonably request and to continue such
qualification in effect so long as reasonably required for
distribution of the Shares; provided that the Company shall not be
required to qualify the Shares in any jurisdiction where, as a result
of such qualification, the Company would be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(g) so long as the shares are outstanding, to make
generally available to its security holders and to the Underwriter as
soon as practicable an earnings statement covering a period of at
least twelve months beginning with the first fiscal quarter of the
Company beginning after the date of this Agreement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 of the Commission promulgated thereunder;
(h) so long as the Shares are outstanding, until three
years after the Closing Date, to furnish to the Underwriter copies of
all reports or other communications (financial or other) furnished to
holders of the Shares, and copies of any reports and financial state-
ments furnished to or filed with the Commission or any national
securities exchange;
(i) to use the net proceeds received by the Company
from the sale of the Shares pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(j) to use its best efforts to list, subject to notice
of issuance, the Shares on the New York Stock Exchange (the "NYSE");
and
(k) whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, to pay
or cause to be paid all costs and expenses incident to the performance
of its obligations hereunder, including without limiting the
generality of the foregoing, all costs and expenses (i) incident to
the preparation, issuance, execution and delivery of the Shares, (ii)
incident to the preparation, printing and filing under the Securities
Act of the Registration Statement, the Prospectus and any prelimi-
nary prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred in connection with the
registration or qualification of the Shares under the laws of such
jurisdictions as the Underwriter may designate (including reasonable
fees of outside counsel for the Underwriter and its reasonable
out-of-pocket disbursements not to exceed in the aggregate $5,000),
(iv) in connection with the listing of the Shares on the NYSE, (v) in
connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Preliminary and
Supplemental Blue Sky Memoranda and the furnishing to the Underwriters
and dealers of copies of the Registration Statement, any preliminary
prospectus and the Prospectus, including mailing and shipping, as
herein provided, (vi) the cost of preparing stock certificates and
(vii) the cost and charges of any transfer agent and any registrar.
6. The obligation of the Underwriter hereunder to purchase the
Shares on the Closing Date are subject to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under
the Securities Act and in accordance with Section 5(a) hereof; and all
requests for additional information shall have been complied with to
the satisfaction of the Underwriter;
(b) (i) the representations and warranties of the
Company contained herein are true and correct in all material respects
on and as of the Closing Date as if made on and as of the Closing Date
and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(ii) the representations and warranties of Boeing
contained in the Boeing Agreement are true and correct in all material
respects on and as of the Closing Date as if made on and as of the
Closing Date and Boeing shall have complied with all agreements and
all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date;
(c) since the respective dates as of which information
is given in the Prospectus, the businesses of the Company have been
conducted in all material respects in the ordinary course and there
has not been any event, occurrence or facts that has had a material
adverse change in or affecting the financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Underwriter
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the Closing Date on the
terms and in the manner contemplated in the Prospectus; it being
expressly understood and agreed that for all purposes of this
Agreement and notwithstanding any other provision contained herein,
any decision by the European Commission or by the Merger Task Force of
the European Commission or any agreement between the parties related
to the European Commission process or the Merger Task Force of the
European Commission process shall not be deemed material to, or
constitute a material adverse change with respect to, the Company,
Boeing, the Merger or the disclosures contained in the Joint Proxy
Statement/Prospectus or the Registration Statement;
(d) (i) the Underwriter shall have received on and as
of the Closing Date a certificate of an executive officer of the
Company, with specific knowledge about the Company's financial
matters, satisfactory to the Underwriter to the effect set forth in
subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company)
of this Section and to the further effect that there has not occurred
any material adverse change in or affecting the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that set forth or contemplated in
the Registration Statement;
(ii) the Underwriter shall have received on and as of
the Closing Date a certificate of an executive officer of Boeing, with
specific knowledge about Boeing's financial matters, satisfactory to
the Underwriter to the effect set forth in Section 3(b) of the Boeing
Agreement;
(e) F. Xxxx Xxxxxxxx, General Counsel for the Company,
shall have furnished to the Underwriter his written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter,
to the effect set forth in Exhibit A hereto.
The opinion of F. Xxxx Xxxxxxxx described in Exhibit A hereto
shall be rendered to the Underwriter at the request of the Company and
shall so state therein.
(f) Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, special Maryland
counsel for the Company, shall have furnished to the Underwriter their
written opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect set forth in paragraphs
(iv), (vi), (but, with respect to preemptive or similar rights, only
as to such rights arising under the Maryland General Corporation Law,
the Charter or the Bylaws of the Company) (vii) (but only with
reference to the description of the Stock) and (xiii) of the opinion
of F. Xxxx Xxxxxxxx referred to in subsection (e) of this Section.
The opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx described
above shall be rendered to the Underwriter at the request of the
Company and shall so state therein.
(g) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel for the Company, shall have furnished to the Underwriter their
written opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) the statements in the Prospectus incorporated by
reference from the Boeing and Company Joint Proxy Statement/Prospectus
dated June 20, 1997 (the "Joint Proxy Statement/Prospectus") under the
captions "Summary--The Merger and Merger Agreement," "The Merger,"
"Other Terms of the Merger Agreement," "Comparison of the Rights of
Holders of Boeing Common Stock and XxXxxxxxx Xxxxxxx Common Stock,"
and "Certain Federal Income Tax Consequences" insofar as such
statements constitute a summary of the terms of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such terms, legal matters,
documents or proceedings; and
(ii) such counsel is of the opinion that the
Registration Statement, as of the effective date, and the Prospectus,
as of the date of the Prospectus Supplement and as of the Closing
Date, appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act, except
that in each case such counsel expresses no opinion as to the
financial data included therein or excluded therefrom or the exhibits
to the Registration Statement, and such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus.
In addition, such counsel shall state that such counsel
has participated in conferences with officers and representatives of
the Company, counsel for the Company, representatives of the
independent accountants of the Company and the Underwriter at which
the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and has made no independent
check or verification thereof (except as set forth in clause (i)
above), on the basis of the foregoing, no facts have come to such
counsel's attention that has led such counsel to believe that the
information under the captions "Summary--The Merger and the Merger
Agreement," "The Merger," "Other Terms of the Merger" and "Comparison
of the Rights of Holders of Boeing Common Stock and XxXxxxxxx Xxxxxxx
Common Stock" included in the Joint Proxy Statement/Prospectus and
incorporated by reference in the Registration Statement and the
prospectus included therein at the time the Registration Statement
became effective, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement and as of the
Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements in the subcaptions referenced above, in light
of the circumstances under which they were made, not misleading,
except that such counsel does not express any opinion or belief with
respect to the financial statements, schedules and other financial and
statistical data included therein or excluded therefrom or the
representations and warranties contained in the exhibits to the
Registration Statement.
With respect to the matters to be covered in subparagraph (ii)
above counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto (other than the
documents incorporated by reference therein) and review and discussion
of the contents thereof (including the documents incorporated by
reference therein) but is without independent check or verification
except as specified.
The opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
described above shall be rendered to the Underwriter at the request of
the Company and shall so state therein.
(h) Xxxxxxxx X. Xxxxxxx, General Counsel for Boeing,
shall have furnished to the Underwriter his written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter,
to the effect set forth in Section 3(c) of the Boeing Agreement.
The opinion of Xxxxxxxx X. Xxxxxxx described above shall be
rendered to the Underwriter at the request of the Company and shall so
state therein.
(i) on the date of this Agreement and also on the
Closing Date Ernst & Young LLP and Deloitte & Touche LLP shall have
furnished to you letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus of the Company in the
case of Ernst & Young LLP and of Boeing in the case of Deloitte &
Touche LLP;
(j) the Shares shall have been approved for listing on
the NYSE, subject to official notice of issuance;
(k) on or prior to the Closing Date the Company and
Boeing shall each have furnished to the Underwriter such further
certificates and documents as the Underwriter shall reasonably
request; and
(l) as of the Closing Date, the shareholders of the
Company shall have approved the Merger and the shareholders of Boeing
shall have approved the issuance of shares of Boeing Stock in
connection with the Merger in accordance with all applicable law.
7. The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, the
reasonable legal fees of outside counsel and other reasonable
out-of-pocket expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with information (i) relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein, (ii)
relating exclusively to Boeing, or (iii) relating to items identified
as adjustments in the pro forma financial statements relating
exclusively to Boeing.
The Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to information relating to the
Underwriter furnished to the Company in writing by the Underwriter
expressly for use in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person
(the "Indemnified Person") shall promptly notify the person against
whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others
the Indemnifying Person may designate in such proceeding and shall pay
the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person 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 Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person
and the Indemnified Person 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 Person shall not, in connection with any proceeding or
related proceeding 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 Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate
firm for the Underwriter and such control persons of the Underwriter
shall be designated in writing by the Underwriter and any such
separate firm for the Company, its directors, its officers who sign
the Registration Statement and such control persons of the Company
shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person
agrees to indemnify any Indemnified Person from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall
have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the Indemnifying Person agrees
that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect
any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject
matter of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriter on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriter
on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the
other hand shall be deemed to be in the same respective proportions as
the net proceeds from the offering (before deducting expenses)
received by the Company and the total underwriting discounts and the
commissions received by the Underwriter, in each case as set forth in
the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. The relative fault of the Company on the
one hand and the Underwriter on the other hand 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 parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall
the Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the
amount of any damages that the Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section ll(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set
forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Underwriter, by
notice given to the Company, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case
may be, either the New York Stock Exchange or the Pacific Stock
Exchange (other than any temporary suspensions in connection with the
Merger), (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of
the Underwriter, is material and adverse and which, in the judgment of
the Underwriter, makes it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
10. If this Agreement shall be terminated by the Underwriter,
because of any failure or refusal on the part of the Company or Boeing
to comply with the terms or to fulfill any of the conditions of this
Agreement or the Letter Agreement, as the case may be, or if for any
reason the Company and Boeing shall be unable to perform their
respective obligations under this Agreement or the Letter Agreement,
as the case may be, or any condition of the Underwriter's obligations
cannot be fulfilled, the Company agrees to reimburse the Underwriter
for all out-of-pocket expenses (including the reasonable fees and
reasonable out-of-pocket expenses of its outside counsel) reasonably
incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be
binding upon the Company and the Underwriter, any controlling persons
referred to herein and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal
or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. No purchaser of Shares
from the Underwriter shall be deemed to be a successor by reason
merely of such purchase.
12. 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
Underwriter shall be given to X.X. Xxxxxx Securities Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax:______); Attention:
Syndicate Department. Notices to the Company shall be given to it at
____________, _____________, ____________, (telefax:________);
Attention:____________.
13. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute
one and the same instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
If the foregoing is in accordance with your understanding,
please sign and return four counterparts hereof.
Very truly yours,
XXXXXXXXX XXXXXXX CORPORATION
By:__________________________
Title:
Accepted:_________, 1997
X.X. Xxxxxx Securities Inc.
By:________________________________
Title:
EXHIBIT A
Matters to be covered by the
Opinion of F. Xxxx Xxxxxxxx
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland,
and has the corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) the Company has been duly qualified to do business and is
in good standing in each jurisdiction in which the ownership of its
properties or the conduct of its businesses requires such
qualification, except for such jurisdictions in which the failure to
be so qualified or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a whole;
(iii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened against or affecting the Company or
any of its subsidiaries or any of its properties or to which the
Company or any of its subsidiaries is or may be a party or to which
any property of the Company or its subsidiaries is or may be the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(vi) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and when delivered to and paid for the
Underwriter in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable and the issuance of the
Shares is not subject to any preemptive or similar rights;
(vii) the description of the Stock incorporated by reference
in the Prospectus, the description of the Rights incorporated by
reference in the Prospectus, the statements in the Prospectus under
the caption "Description of the XxXxxxxxx Xxxxxxx Common Stock", the
statements in the Prospectus incorporated by reference from Item 3 of
Part I of the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 and in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the terms of the
Stock, Rights, legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such terms, legal matters, documents or proceedings;
(viii) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the
Securities Act and has no reason to believe that (other than the
financial statements and related schedules therein and statements and
omissions relating to Boeing exclusively, as to which such counsel
need express no belief) the Registration Statement or the prospectus
included therein at the time the Registration Statement became
effective, or the Registration Statement, as supplemented by the
Prospectus Supplement, or the Prospectus as of the date of this
Agreement, contained any 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 amended or supplemented, if applicable, as of the
Closing Date, contains any untrue statement of a material fact 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;
(ix) the issue and sale of the Shares and the performance by
the Company of its obligations under this Agreement and the Merger
Agreement and the consummation of the transactions contemplated herein
and therein will not conflict with or result in a breach or violation
of any of the terms or provisions of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, nor will any such action result in any violation of the
provisions of the Charter or the By-laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties, except for such conflicts, breaches
or violations (other than with respect to the Charter and the By-laws
of the Company) which would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, except that such
counsel expresses no opinion concerning the laws, rules and
regulations administered by the European Commission, the Merger Task
Force of the European Commission, or any related body administered by
the European Commission;
(x) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issuance and sale of the Shares or
the consummation of the other transactions contemplated by this
Agreement or the Merger Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications (i)
as have been obtained under the Securities Act and as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriter, (ii) [in
connection with the Merger, as have been obtained or made under the
Maryland General Corporation Law, the Securities Act, the Exchange
Act, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, Section 4043 of the Employee Retirement Income Security Act
of 1974, as amended, the Communication Act of 1934, as amended, any
non-United States competition, antitrust and investment laws and the
securities or blue sky laws of the various states and other than any
necessary approvals of the United States government or any agencies,
departments or instrumentalities thereof, [(iii) from the European
Commission, the Merger Task Force of the European Commission, or any
related body administered by the European Commission with respect to
the Merger] (iv) such consents, approvals, authorizations, orders,
licenses, registrations or qualifications the failure to obtain which
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole or substantially impair or delay the
consummation of the transactions contemplated by this Agreement or the
Merger Agreement;
(xi) such counsel is of the opinion that the documents
incorporated by reference in the Prospectus (other than any documents
relating exclusively to Boeing) and any further amendment or
supplement thereto made by the Company prior to the Closing Date
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder;
(xii) the Rights Agreement has been duly authorized, executed
and delivered by the Company; the Rights have been duly authorized by
the Company and, when issued upon issuance of the Shares, will be
validly issued, and the shares of Series A Junior Participating
Preferred Stock issuable upon exercise of the Rights have been duly
authorized by the Company and validly reserved for issuance upon the
exercise of the Rights and, when issued upon such exercise in
accordance with the terms of the Rights Agreement, will be validly
issued, fully paid and non-assessable; and
(xiii) the Merger Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid and binding
agreement of the Company.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to the
Underwriter) of other counsel reasonably acceptable to the
Underwriter's counsel, familiar with the applicable laws; (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel upon which they
relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriter and they are justified in relying thereon.
With respect to the matters to be covered in subparagraph (viii) above
counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto and review and
discussion of the contents thereof but is without independent check or
verification except as specified.
