Exhibit 1
March 29, 1996
Xxxxxxx Purina Company
Debt Securities and Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT GENERAL TERMS AND PROVISIONS
1. Introductory. Xxxxxxx Purina Company, a Missouri corporation ("Company"),
proposes to issue and sell from time to time, either jointly or separately,
certain of its debt securities ("Debt Securities") and warrants to purchase
Debt Securities ("Warrants") registered under the registration statement
referred to in Section 2(a). The Debt Securities will be issued under an
indenture, dated as of May 26, 1995, ("Indenture"), between the Company and
The First National Bank of Chicago, as Trustee, in one or more series,
which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Debt Securities being determined at the time of
sale. The Warrants will be to purchase Debt Securities issued under the
Indenture, in one or more series, which series may vary as to duration,
exercise prices, detachability, selling prices and other terms, with all
such terms for any particular series of the Warrants being determined at
the time of sale. Particular series of the Debt Securities and Warrants
will be sold, pursuant to a Terms Agreement referred to in Section 3, for
resale in accordance with terms of offering determined at the time of sale.
The Debt Securities and Warrants involved in any such offering, whether
sold independently of each other or collectively, are hereinafter referred
to as the "Securities". The firm or firms which agree to purchase the
Securities are hereinafter referred to as the "Underwriters" of such
Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are
hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives", as used in this Agreement (other
than in Sections 2(b), 5(c) and 6 and the second sentence of Section 3),
shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. 33- ), and any
amendments thereto, with respect to the Securities have (i) been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed
with the Commission under the Securities Act, and (iii) become
effective under the Securities Act. The Indenture pursuant to
which the Securities will be issued has been qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Copies of such registration statement and any amendments
thereto have been delivered by the Company to the Representatives.
As used in this Agreement, "Registration Statement" means such
registration statement when it became effective under the
Securities Act, and as from time to time amended or supplemented
thereafter at the time of effectiveness of such amendment or filing
of such supplement with the Commission (including all documents
incorporated therein by reference); "Basic Prospectus" means the
prospectus (including all documents incorporated therein by
reference) included in the Registration Statement; and "Prospectus"
means the Basic Prospectus, together with any amendment or
supplements thereto, as first filed with the Commission pursuant to
paragraph (2) or (5) of Rule 424(b) of the Rules and Regulations.
The Commission has not issued any order preventing or suspending
the use of the Basic Prospectus or any Prospectus.
(b) The Registration Statement and any amendment thereto, as of their
respective effective dates, and the Prospectus, as of its issue
date, complied as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and
the applicable rules and regulations of the Commission thereunder;
and the Registration Statement and any amendment thereto, as of
their respective effective dates (and, if an Annual Report on Form
10-K of the Company has been filed subsequent to the effective date
of the Registration Statement, as of the date of filing of the most
recent such Annual Report on Form 10-K), did not contain or will
not contain, as the case may be, an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading, and the Prospectus does not and will not as of the
Closing Date (as hereinafter defined) contain an untrue statement
of material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
of the Securities through the Representatives expressly for use in
the Prospectus or as to any statement in or omissions from the
statement of eligibility and qualifications on Form T-1 of the
Trustee under the Trust Indenture Act.
(c) The documents, if any, incorporated by reference in the Prospectus,
when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
applicable rules and regulations of the Commission thereunder, and
none of such documents, as of their respective filing dates,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus
when such documents are filed with the Commission, as the case may
be, will comply as to form in all material respects with the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, and will not as of their
respective filing dates, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of the Securities through the Representatives
expressly for use in the Prospectus.
3. Purchase and Offering of Securities. The obligation of the Underwriters to
purchase the Securities will be evidenced by an exchange of telegraphic or
other written communications ("Terms Agreement") at the time the Company
determines to sell the Securities. Each Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the principal amount to be purchased by each
Underwriter, the public offering price, the purchase price to be paid by
the Underwriters and the terms of the Securities not already specified in
the Indenture, including, but not limited to, interest rate, maturity,
denominations designations, any redemption provisions and any sinking fund
requirements and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below). Each
Terms Agreement will also specify the time and date of delivery and payment
(such time and date, or such other time not later than seven full business
days thereafter as the Representatives and the Company agree as the time
for payment and delivery, being herein and in each Terms Agreement referred
to as the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of
the Underwriters to purchase the Securities will be several and not joint.
It is understood that the Underwriters propose to offer the Securities for
sale as set forth in the Prospectus. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. The
Securities delivered to the Underwriters on the Closing Date will be in
definitive, fully registered form, and may be issued pursuant to the Book-
Entry System described in the Prospectus, in such denominations and
registered in such names as the Underwriters may request, against payment
by such Underwriters of the purchase price therefore by such means and in
such funds as specified in the Terms Agreement If a Terms Agreement
provides for sales of Securities pursuant to delayed delivery contracts,
the Company authorizes the Underwriters to solicit offers to purchase
Securities pursuant to delayed delivery contracts substantially in the form
of Annex I attached hereto ("Delayed Delivery Contracts") with such changes
therein as the Company may authorize or approve. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. On the Closing Date, the Company
will pay, as compensation, to the Representatives for the accounts of the
Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to
be purchased by the several Underwriters and the aggregate principal amount
of Securities to be purchased by each Underwriter will be reduced pro rata
in proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro
rata and so advise the Company. The Company will advise the
Representatives not later than the business day prior to the Closing Date
of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to counsel for the Underwriters one
signed copy of the registration statement relating to the Debt Securities
and Warrants, including all exhibits, in the form it became effective and
of all amendments thereto and that, in connection with each offering of
Securities:
(a) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or
supplement; and will obtain the prior consent of the Underwriter to
the filing, which consent shall not be unreasonably withheld or
delayed; and the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of
the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will
prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance.
(c) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the Debt
Securities and Warrants, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the
date of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to the date of such Terms Agreement,
which will satisfy the provisions of Section 11(a) of the Act.
(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such
quantities as are reasonably requested.
(e) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long
as required for the distribution.
(f) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year, and the Company will furnish
to the Representatives (i) as soon as available, a copy of each
report or definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other publicly
available information concerning the Company as the Representatives
may reasonably request.
(g) Expenses. The Company agrees to pay (i) the costs incident to the
authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (ii) the costs incident to
the preparation, printing and filing under the Securities Act of
the Registration Statement and any amendments and exhibits thereto;
(iii) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective
amendments thereto (including, in each case, exhibits), the
Prospectus and any amendment or supplement to the Prospectus, all
as provided in this Agreement; (iv) the costs of reproducing and
distributing this Agreement; (v) the costs of distributing the
underwriting documentation in connection with the organization of
the underwriting syndicate and selling group to the members thereof
by mail, telex or other means of communication; (vi) the fees and
expenses of filings, if any, with foreign securities administrators
and of qualifying the Debt Securities and Warrants under the
securities laws of the several jurisdictions as provided in Section
4(e) and of preparing, printing and distributing a Blue Sky
memorandum (including related fees and expenses of counsel to the
Underwriters); (vii) the cost of printing the Debt Securities and
the Warrants; (viii) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of any counsel
for the Trustee in connection with the Indenture and the Debt
Securities; (ix) the fees and expenses of the Warrant Agent and any
agent of the Warrant Agent and the fees and disbursements of any
counsel for the Warrant Agent in connection with the Warrant
Agreement and the Warrants; (x) the fees paid to rating agencies in
connection with the rating of the Securities; (xi) any costs and
expenses of the depositary with respect to the Securities and its
nominee, including its book-entry system; and (xii) all other costs
and expenses incident to the performance of the obligations of the
Company under this Agreement; provided that except as provided in
this Section 4(g) and in Section 8, the Underwriters shall pay
their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Debt Securities and the
Warrants which they may sell and the expenses of advertising any
offering of the Debt Securities and the Warrants made by the
Underwriters, and the Company shall pay the fees and expenses of
its counsel and any transfer taxes payable in connection with its
sale of Debt Securities and the Warrants to the Underwriters.
(h) For a period beginning at the time of execution of a Terms
Agreement and ending 30 days after the Closing Date relating to
such Terms Agreement, without the prior consent of the
Representatives, the Company will not offer, sell, contract to sell
or otherwise dispose of any United States dollar denominated,
foreign currency denominated or ECU debt securities issued or
guaranteed by the Company and having a maturity of more than one
year from the date of issue or warrants to purchase such debt
securities.
5. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On the Closing Date, you shall have received a letter, satisfactory
in form and substance to you and your counsel, dated the Closing
Date and addressed to you, of Price Waterhouse LLP, independent
certified public accountants for the Company, containing statements
and information of the type ordinarily included in accountants'
comfort letters with respect to the financial statements and
certain financial information contained in the Registration
Statement.
(b) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(c) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial
statements included in the Prospectus, any (i) loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus as of the date thereof
or (ii) since such date there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries (otherwise than as set forth or contemplated in the
Prospectus) or any change in or affecting, or any adverse
development which affects, the business, properties, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries as a whole, otherwise than as set
forth or contemplated in the Prospectus as of the date thereof, the
effect of which, in any such case described in clause (i) or (ii),
is, in the reasonable judgment of the Representatives, so material
and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being
delivered on the Closing Date on the terms and in the manner
contemplated herein or in the Prospectus.
(d) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, Inc. (the
"NYSE"), the American Stock Exchange or the over-the-counter market
shall have been suspended or minimum prices shall have been
established on either of such exchanges or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United
States shall be such) as to make it in each such case, in the
judgment of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
(e) Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the
Company's debt securities by a nationally recognized statistical
rating organization, as that term is defined by the Commission for
purposes of Rule 436(g) (2) of the Rules and Regulations, and (ii)
no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities.
(f) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxx X. Xxxxxxx, Vice President and General
Counsel of the Company, to the effect that:
(i) Each of the Company, and Eveready Battery Company, Inc.,
VCS Holding Company, Xxxxxxx Purina Overseas Battery
Company and Protein Technologies International, Inc.
(together the "Significant Subsidiaries"), has been duly
incorporated and is an existing corporation in good
standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own
its properties and conduct its business as described in
the Prospectus; and each of the Company and the
Significant Subsidiaries is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business
requires such qualification, except where the failure to
be so qualified or in good standing would not have a
material adverse effect on the Company;
(ii) The Indenture and the Warrant Agreement, if applicable,
have been duly authorized, executed and delivered by the
Company and the Indenture has been duly qualified under
the Trust Indenture Act; the Securities have been duly
authorized; the Securities other than any Contract
Securities have been duly executed, authenticated, issued
and delivered; the Indenture and the Warrant Agreement, if
applicable, and the Securities other than any Contract
Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the
manner provided in the Indenture and the Warrant
Agreement, if applicable, and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally
binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; and the Indenture and the Warrant Agreement,
if applicable, and the Securities other than any Contract
Securities conform, and any Contract Securities, when so
issued and delivered and sold, will conform, to the
descriptions thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is
required for the consummation of the transactions
contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the
issuance or sale of the Securities by the Company, except
such as have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under
state securities laws;
(iv) The Company has an authorized capitalization as set forth
in the Prospectus and all of the issued shares of capital
stock of the Company and each Significant Subsidiary have
been duly and validly authorized and issued and are fully
paid and non-assessable; all of the capital stock of each
Significant Subsidiary is owned directly or indirectly by
the Company, and, to the best knowledge of such counsel,
such capital stock is free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity;
(v) The execution, delivery and performance of the Indenture,
the Warrant Agreement (if applicable), the Terms Agreement
(including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of
the Securities and compliance with the terms and
provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or
any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties or
any agreement or instrument to which the Company or any
Significant Subsidiary is a party or by which the Company
or any Significant Subsidiary is bound or to which any of
the properties of the Company or any Significant
Subsidiary is subject, or the charter or bylaws of the
Company or any subsidiary of the Company, and the Company
has full power and authority to authorize, issue and sell
the Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(vi) The Registration Statement has become effective under the
Act, and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the
registration statement relating to the Debt Securities and
Warrants, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms
Agreement, and any amendment or supplement thereto, as of
its date, complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act
and the rules and regulations thereunder; and all
documents incorporated by reference therein complied as to
form when filed in all material respects with the
requirements of the Exchange Act and the applicable rules
and regulations; such counsel has no reason to believe
that (a) the Registration Statement as of its effective
date (or, if an Annual Report on Form 10-K of the Company
has been filed subsequent to its effective date, as of the
date of filing of the most recent such Annual Report),
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 (b) the Prospectus as of its date and
as of the Closing Date, including any amendments or
supplements to the Prospectus (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained or contains an
untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements
therein, in light of the circumstances in which they were
made, not misleading; and such counsel does not know of
any legal or governmental proceedings required to be
described in the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required;
it being understood that such counsel need express no
opinion as to the financial statements or other financial
data contained in the Registration Statement or the
Prospectus; and
(vii) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
(g) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other
related matters as they may require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, counsel for the Underwriters may rely as to the incorporation
of the Company and all other matters governed by Missouri law upon the
opinion of Xxxxx X. Xxxxxxx referred to above.
(h) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this
Agreement are true and correct, that the company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company and its subsidiaries
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
6. Indemnification and Contribution. (a) The Company will indemnify and hold
harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, or any action in respect thereof to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company against any losses, claims, damages or
liabilities or any action in respect thereof to which the Company may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided,
however, that any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense
thereof but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment thereof
has been specifically authorized by the indemnifying party in writing,
(ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying
party and in the reasonable judgment of such counsel it is advisable
for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in
which case, if such indemnified party notifies the indemnifying party
in writing that it elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm or attorneys at any time for all such
indemnified parties, which firm shall be designated in writing by the
Representatives, if the indemnified parties under this Section 6
consist of any Underwriter or any of their respective controlling
persons, or by the Company, if the indemnified parties under this
Section 6 consist of the Company or any of the Company's directors,
officer or controlling persons.
(d) If the indemnification provided for in this Section 6 is unavailable
or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a)
or (b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, 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 Underwriters on the other in connection with the
statements or omissions which 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
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) was
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters . If any Underwriter or Underwriters default in
their obligations to purchase Securities under a Terms Agreement and the
aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of the Securities, the Representatives
may make arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters, but if no
such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their
respective commitments under this Agreement and such Terms Agreement, to
purchase the Securities that such defaulting Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of the
Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made
after such default, such Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as
provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section.
Nothing herein will relieve a defaulting Underwriter from liability for its
default. The respective commitments of the several Underwriters for the
purposes of this Section shall be determined without regard to reduction in
the respective Underwriters' obligations to purchase the principal amounts
of the Securities set forth opposite their names in a Terms Agreement as a
result of Delayed Delivery Contracts entered into by the Company relating
to such Securities.
The foregoing obligations and agreements set forth in this Section will not
apply if a Terms Agreement specified that such obligations and agreements
will not apply.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
of the Company or its officers and of the several Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their
respect representatives, officers or directors or any controlling person
and will survive delivery of and payment for the Securities. If the
obligations of the Underwriters with respect to any offering of Securities
are terminated pursuant to Section 7 or if for any reason the purchase of
the Securities by the Underwriters under a Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 4 and the respective
obligations of the Company and the Underwriters pursuant to Section 6 shall
remain in effect. If the Company shall fail to tender the Securities for
delivery to the Underwriters for any reason permitted under this Agreement
or the Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement (including the termination under this
Agreement), the Company shall reimburse the Underwriters, severally, for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the
Securities. If this Agreement is terminated pursuant to Section 7 by
reason of default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of those
expenses.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their addresses furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Xxxxxxxxxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors
and controlling persons referred to in Section 6, and no other person will
have any right or obligation hereunder.
11. Governing Law. This Agreement and each Terms Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
12. Counterparts. The Terms Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
13. Headings. The headings are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
