Exhibit 1.1
$225,000,000
Xxxxxx-Xxxxxxxx Corporation
4.875% Senior Notes Due February 15, 2013
UNDERWRITING AGREEMENT
February 5, 0000
Xxxx xx Xxxxxxx Securities LLC
Xxxxxx Xxxxxxx & Co. Incorporated
XxXxxxxx Investments Inc.
c/o Banc of America Securities, LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned XXXXXX-XXXXXXXX CORPORATION, an Ohio corporation
("Company"), confirms its agreement with the several Underwriters
("Underwriters") as follows:
1. Description of Securities. The Company proposes to issue and sell to
the several Underwriters $225,000,000 principal amount of its 4.875% Senior
Notes Due February 15, 2013 ("Securities"), to be issued under an indenture
("Indenture"), dated as of May 3, 1996, between the Company and National City
Bank, as trustee ("Trustee").
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter as of the date hereof and as
of the Closing Date (as defined in Section 3 below) (each, a "Representation
Date") that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has prepared a registration
statement (File No. 333-82806) with respect to the Securities, including a
preliminary form of prospectus, in conformity with the requirements of the
Act, the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules
and regulations ("Rules and Regulations") of the Securities and Exchange
Commission ("Commission") thereunder. The registration statement has been
filed with the Commission and has become effective. No stop order
suspending the effectiveness of the registration statement has been issued
and no proceeding for that purpose has been instituted or threatened by the
Commission. No amendment or supplement thereto or to any document
incorporated by reference therein has heretofore been filed with the
Commission. Copies of such registration statement, any such amendments and
each related preliminary prospectus ("Preliminary Prospectus") have been
delivered to you. A supplemental prospectus relating to the Securities has
been or will be prepared and will be filed pursuant to Rule 424 under the
Act. As filed, such
registration statement as amended at the time it became effective is herein
referred to as the "Registration Statement", and such supplemental
prospectus (including all documents and information incorporated by
reference therein), as the "Prospectus." Any reference herein to the
Registration Statement, any Preliminary Prospectus or the Prospectus
includes all documents and information incorporated by reference therein
and any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
with the Commission after the date of such Registration Statement,
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934 ("Exchange Act") and so incorporated by
reference.
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission and each Preliminary
Prospectus, at the time of filing thereof, 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, except
that the foregoing shall not apply to statements in or omissions from any
Preliminary Prospectus in reliance upon, and in conformity with, written
information furnished to the Company by you specifically for use in the
preparation thereof.
(c) Each part of the registration statement, when such part became
effective, each Preliminary Prospectus, on the date of filing thereof with
the Commission, and the Prospectus and any amendment or supplement thereto,
on the date of filing thereof with the Commission and on the Closing Date,
conformed or will conform in all material respects with the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations; each part
of the registration statement, when such part became effective, did not or
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; each Preliminary Prospectus, on the date
of filing thereof with the Commission, and the Prospectus and any amendment
or supplement thereto, on the date of filing thereof with the Commission
and on the Closing Date, did not or will not include 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; except that the
foregoing shall not apply to statements in or omissions from any such
document in reliance upon, and in conformity with, written information
furnished to the Company by you specifically for use in the preparation
thereof.
(d) The documents from which information is incorporated by reference
in the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Act, the Exchange Act, as applicable, and the Rules and
Regulations, and any documents so filed and incorporated by reference
subsequent to the effective date of the Registration Statement will, when
they are filed with the Commission, conform in all material respects to the
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requirements of the Act and the Exchange Act, as applicable, and the Rules
and Regulations.
(e) The financial statements of the Company and its subsidiaries set
forth in the Registration Statement and Prospectus, together with the
related schedules and notes, fairly present the financial condition of the
Company and its subsidiaries as of the dates indicated and the results of
operations and changes in financial position for the periods therein
specified, in conformity with generally accepted accounting principles
consistently applied throughout the periods involved.
(f) The Company and each of its subsidiaries has been duly
incorporated and is an existing corporation in good standing under the laws
of its jurisdiction of incorporation, has full power and authority
(corporate and other) to conduct its business as described in the
Registration Statement and Prospectus, and is duly qualified to do business
in each jurisdiction in which it owns or leases real property or in which
the conduct of its business requires such qualification except where the
failure to be so qualified, considering all such cases in the aggregate,
does not involve a material risk to the business, properties, financial
position or results of operations of the Company and its subsidiaries
(taken as a whole); and all of the outstanding shares of capital stock of
each such subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and (except as otherwise stated in the
Prospectus) are owned beneficially by the Company subject to no security
interest, mortgage, pledge, lien, other encumbrance or adverse claim.
(g) The Indenture and the Securities have been duly authorized, the
Indenture has been duly qualified under the Trust Indenture Act, executed
and delivered and constitutes, and the Securities, when duly executed,
authenticated, issued and delivered as contemplated hereby and by the
Indenture, 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 laws of
general applicability relating to or affecting creditors' rights and to
general equity principles. The Securities will be in the form contemplated
by, and each registered holder thereof will be entitled to the benefits of,
the Indenture.
(h) This agreement has been duly authorized, executed and delivered
by the Company.
(i) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary course of
business, that are material to the Company and its subsidiaries (taken as a
whole), and there has not been any material change, on a consolidated
basis, in the capital stock, short-term debt or long-term debt of the
Company and its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in
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the condition (financial or other), business, prospects, net worth or
results of operations of the Company and its subsidiaries (taken as a
whole).
(j) Except as set forth in the Prospectus, there is not pending or,
to the knowledge of the Company, threatened, any action, suit or proceeding
to which the Company or any of its subsidiaries is a party before or by any
court or governmental agency or body, which might result in any material
adverse change in the condition (financial or other), business, prospects,
net worth or results of operations of the Company and its subsidiaries, or
might materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in the Indenture and this
Agreement or the performance by the Company of its obligations under the
Indenture and this Agreement.
(k) There are no contracts or documents of the Company or any of its
subsidiaries that are required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations that have not been so
filed.
(l) The statements in the Prospectus under the captions "Description
of the Notes" and "Underwriting", insofar as they purport to constitute a
summary of the terms of the Securities, this Agreement or the Indenture,
are accurate, complete and fair. This Agreement will be incorporated by
reference as an exhibit to the Registration Statement.
(m) Except for such breaches, defaults and violations which in the
aggregate do not materially and adversely affect the business, properties,
financial position or results of operations of the Company and its
subsidiaries (taken as a whole) or which do not materially and adversely
affect the consummation of the transactions contemplated in the Indenture
and this Agreement or the performance by the Company of its obligations
under the Indenture and this Agreement, the performance of this Agreement
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under (i) any agreement or instrument to which the
Company or its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property of the Company or its subsidiaries is
subject; (ii) the charter or bylaws or other constitutive documents of the
Company or its subsidiaries; or (iii) any order, statute, law, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or its subsidiaries or any of their respective properties.
No consent, approval, authorization or order of, or filing with, any court
or governmental agency or body is required for the consummation of the
transactions contemplated by the Indenture and this Agreement, in
connection with the issuance or sale of the Securities by the Company,
except such as may be required under the Act, the Trust Indenture Act or
state securities laws and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by this Agreement.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set
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forth, the Company agrees to issue and sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
a purchase price of 98.615% of the principal amount of the Securities, plus
accrued interest from February 10, 2003, the amount of Securities set forth
opposite the name of such Underwriter in Schedule A hereto.
The Securities will be delivered by the Company to you against payment
of the purchase price therefor by wire transfer in same day funds payable to the
order of the Company, at the office of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York City time, February 10, 2003 (or if
the New York or American Stock Exchanges or commercial banks in The City of New
York are not open on such day, the next day on which such exchanges and banks
are open), or at such other time not later than eight full business days
thereafter as you and the Company determine, such time being herein referred to
as the "Closing Date." The Securities will be represented by one or more
definitive global Securities in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company ("DTC") or its
designated custodian and will be made available for checking and packaging at
the office of The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at the office of its designated custodian, at least one business day
prior to the Closing Date.
4. Covenants. The Company covenants and agrees with each Underwriter
that:
(a) The Company will use its best efforts to cause any amendments to
the Registration Statement to become effective as promptly as possible; it
will notify you promptly of the time when any such amendment to the
Registration Statement has become effective or any supplement to the
Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for
additional information; it will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus that, in your opinion, may be
necessary or advisable in connection with the distribution of the
Securities by the Underwriters; and it will file no amendment or supplement
to the Registration Statement or Prospectus (other than any document
required to be filed under the Exchange Act that upon filing is deemed to
be incorporated by reference therein) to which you shall reasonably object
by notice to the Company after having been furnished a copy a reasonable
time prior to the filing, and it will furnish to you at or prior to the
filing thereof a copy of any document that upon filing is deemed to be
incorporated by reference in whole or in part in the Prospectus.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of (i) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement, (ii) the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or (iii) the initiation or
threatening of any proceeding for any such purpose. The Company will
promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such a stop order should be issued.
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(c) Within the time during which a prospectus relating to the
Securities is required to be delivered under the Act, the Company will use
its best efforts to comply with all requirements imposed upon it by the
Act, as now and hereafter amended, and by the Rules and Regulations, as
from time to time in force, so far as necessary to permit the continuance
of sales of or dealings in the Securities as contemplated by the provisions
hereof and the Prospectus. If during such period 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 a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if during such
period it is necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act, the Exchange Act or the Rules and
Regulations, the Company will (i) promptly notify you, (ii) will prepare
and file with the Commission, subject to the first sentence of paragraph
(a) of this Section 4 an amendment or supplement to the Registration
Statement or Prospectus (at the expense of the Company) so as to correct
such statement or omission or effect such compliance and (iii) supply any
supplement to the Prospectus to you in such quantities as you may
reasonably request.
(d) The Company will use its best efforts to qualify the Securities
for sale under the securities law of such jurisdictions as you reasonably
designate and to continue such qualifications in effect so long as required
for the distribution of the Securities, except that the Company shall not
be required in connection therewith to qualify as a foreign corporation
where it is not now so qualified or to execute a general consent to service
of process in any state where it is not now so subject. The Company will
also arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as you reasonably request.
(e) The Company will furnish to the Underwriters copies of the
Registration Statement (three of which will include all exhibits), each
Preliminary Prospectus, the Prospectus (including all documents from which
information is incorporated by reference), and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as you may from time to time reasonably request.
(f) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the
end of the Company's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12-month period beginning after the date
upon which the Prospectus is filed pursuant to Rule 424 under the Act that
shall satisfy the provisions of Section 11(a) of the Act.
(g) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay all
expenses incident to the performance of its obligations hereunder, will pay
the expenses of printing all documents relating to the offering, and will
reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with the matters
referred to in Section 4(d) hereof and the preparation of memoranda
relating thereto and for any fees charged by investment rating agencies for
rating the Securities. If the sale of
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the Securities provided for herein is not consummated by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of
the Underwriters' obligations hereunder required to be fulfilled by the
Company is not fulfilled, the Company will reimburse the several
Underwriters for all reasonable out-of-pocket disbursements (including fees
and disbursements of counsel) incurred by the Underwriters in connection
with their investigation, preparing to market and marketing the Securities
or in contemplation of performing their obligations hereunder. The Company
shall not in any event be liable to any of the Underwriters for loss of
anticipated profits from the transactions covered by this Agreement.
(h) The Company will apply the net proceeds from the sale of the
Securities to be sold by it hereunder for the purposes set forth in the
Prospectus.
(i) During the period beginning from the date hereof and continuing
to and including the Closing Date, the Company will not, without the prior
written consent of Banc of America Securities, LLC, offer, sell, contract
to sell, pledge, or otherwise dispose of, (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any
affiliate of the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any debt securities issued or
guaranteed by the Company (other than the Securities) or publicly announce
an intention to effect any such transaction.
5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Securities, as provided herein,
shall be subject to the accuracy, as of the date hereof and the Closing Date (as
if made at the Closing Date), of the representations and warranties of the
Company herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact which in your opinion is
material, or omits to state a fact which in your
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opinion is material and is required to be stated therein or is necessary to
make the statements therein (in the case of the Prospectus, in the light of
the circumstances under which they were made) not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, (i) neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary course of
business and (ii) there shall not have been any change, on a consolidated
basis, in the capital stock, short-term debt or long-term debt of the
Company and its subsidiaries, or any change, or any development involving a
prospective change, in the condition (financial or other), business,
prospects, net worth or results of operations of the Company and its
subsidiaries (taken as a whole), that, in each case in your judgment, is so
material and adverse as to make it impractical or inadvisable to offer or
deliver the Securities on the terms and in the manner contemplated in the
Prospectus.
(d) You shall have received the opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Company, dated the Closing Date, in substantially
the form attached as Exhibit I hereto.
(e) You shall have received the opinion of Xxxxxx X. Xxxxxxx, Xx.,
Esq., Vice President, General Counsel and Secretary of the Company, dated
the Closing Date, covering the matters in the paragraph numbered (4) on
Exhibit I and to the effect that:
(i) The Company is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation,
with corporate power and authority to own its properties and to
conduct its business as described in the Prospectus and is qualified
to do business in each state in which it owns or leases real property,
except where the failure to be so qualified, considering all such
cases in the aggregate, does not involve a material risk to the
business, properties, financial position or results of operations of
the Company and its subsidiaries (taken as a whole).
(ii) each "significant subsidiary" of the Company (as such term
is defined in Rule 1-01 of Regulation S-X) organized under the laws of
a jurisdiction within the United States (collectively referred to as
the "Domestic Subsidiaries") is duly incorporated, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation; each of the Domestic Subsidiaries has corporate power
and authority to own its properties and to conduct its business as
described in the Prospectus and is qualified to do business in each
state in which it owns or leases real property, except where the
failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of the operations of the
Company and its Domestic Subsidiaries (taken as a whole); all of the
outstanding shares of capital stock of each of the Domestic
Subsidiaries
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have been duly authorized and validly issued, are fully paid and
nonassessable and (except as otherwise stated in the Prospectus) are
owned beneficially by the Company;
(iii) each "significant subsidiary" of the Company (as such term
is defined in Rule 1-01 of Regulation S-X) organized under the laws of
a jurisdiction outside of the United States (collectively referred to
as the "Significant Foreign Subsidiaries") has been duly organized and
is in good standing under the laws of its respective jurisdiction of
incorporation; each of the Significant Foreign Subsidiaries has full
power and authority (corporate and other) to conduct its business as
described in the Registration Statement; each of the Significant
Foreign Subsidiaries is not, and is not required to be, registered or
qualified to do business as a foreign corporation under the laws of
any jurisdiction other than its jurisdiction of incorporation, and all
of the outstanding shares of capital stock of each of the Significant
Foreign Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and (except for shareholders' or
directors' qualifying shares) are owned, directly or indirectly, by
the Company subject to no security interest, other encumbrance, or
adverse claim (such counsel being entitled to rely upon opinions of
local counsel, provided that such counsel shall furnish to you signed
copies thereof and state that he believes that both you and he are
justified in relying upon such opinion); and
(iv) Neither the execution and delivery of this agreement nor
the performance of the transactions herein contemplated will result in
the violation of any statute or regulation or any order or decree of
any court or governmental authority known to the Company which is
binding upon the Company or its property, or conflict with or result
in a default under any of the terms and provisions of the Company's
Amended Articles of Incorporation or Code of Regulations or any
indenture, loan agreement or any agreement to which the Company is a
party or by which it is bound listed on an exhibit to such opinion and
attached thereto.
(f) You shall have received from Xxxxxxxx & Xxxxxxxx, counsel for the
several 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 you reasonably may request, and such counsel shall have received
such papers and information as they request to enable them to pass upon
such matters. In rendering their opinion, such counsel may rely upon the
opinion of Xxxxx, Day, Xxxxxx & Xxxxx referred to above as to all matters
governed by Ohio law.
(g) On the Closing Date, you shall have received a letter from
Pricewaterhouse Coopers, dated the date of delivery thereof, to the effect
set forth in Exhibit II hereto.
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(h) You shall have received from the Company a certificate, signed by
the Chairman of the Board, the President or a Vice President and by the
principal financial or accounting officer, dated the Closing Date, to the
effect that, to the best of their knowledge based upon reasonable
investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct as of the Closing Date, and the Company
has complied with all the agreements and satisfied all of the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened by the Commission; and
(iii) Since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amendment
or supplement to the Registration Statement or Prospectus that has not
been so set forth and there has been no document required to be filed
under the Exchange Act and the rules and regulations thereunder that
upon such filing would be deemed to be incorporated by reference in
the Prospectus that has not been so filed.
(i) The Company shall have furnished to you such further certificates
and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you. The Company will furnish you with such conformed copies of
such opinions, certificates, letters and other documents as you shall reasonably
request.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities, (including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling person in
connection with defending or investigating any such action or claim) based upon,
arising out of or caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or based upon, arising out of 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 such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
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(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) of this Section 6, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by Banc of
America Securities LLC, in the case of parties indemnified pursuant to
paragraph (a) above and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party 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 party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
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 party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of or consent to
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the entry of any judgment with respect to any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless (i) such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding and (ii) does not include a statement as to an admission
of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party 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 Underwriters on the other hand from the offering of the
Securities 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 of the
Underwriters 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 Underwriters on the other
hand in connection with the offering of the Securities shall be deemed to
be in the same respective proportions as the net proceeds from the offering
of the Securities (before deducting expenses) received by the Company and
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Securities.
The relative fault of the Company on the one hand and the Underwriters 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 or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in
proportion to the respective principal amounts of Securities they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) of
this Section 6. The amount paid or payable by an indemnified party 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 reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Underwriter shall be required to contribute any amount in
excess of
12
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 that 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 remedies provided for in this Section 6 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.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any termination of this Agreement, any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, or the Company or any of its officers, directors or any person
controlling the Company, and shall survive delivery of the Securities to the
Underwriters hereunder.
8. Substitution of Underwriters. (a) If any Underwriter or Underwriters
shall fail to take up and pay for the amount of Securities agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of such
Securities in accordance with the terms hereof, and the amount of Securities not
purchased does not aggregate more than 10% of the total amount of Securities set
forth in Schedule A hereto, the remaining Underwriters shall be obligated to
take up and pay for (in proportion to their respective underwriting obligations
hereunder as set forth in Schedule A hereto except as may otherwise be
determined by you) the Securities that the withdrawing or defaulting
Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Securities agreed by such Underwriter or Underwriters to
be purchased hereunder, upon tender of such Securities in accordance with
the terms hereof, and the amount of Securities not purchased aggregates
more than 10% of the total amount of Securities set forth in Schedule A
hereto, and arrangements satisfactory to you and the Company for the
purchase of such Securities by other persons are not made within 36 hours
thereafter, this Agreement shall terminate. In the event of any such
termination the Company shall not be under any liability to any Underwriter
(except to the extent provided in Section 4(g) and Section 6 hereof) nor
shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some reason permitted under this Agreement, to purchase
the amount of Securities agreed by such Underwriter to be purchased
hereunder) be under any liability to the Company (except to the extent
provided in Section 6 hereof).
9. Termination. You shall have the right to terminate this Agreement by
giving notice as hereinafter specified at any time at or prior to the Closing
Date if (i) the Company shall have failed, refused or been unable, at or prior
to the Closing Date, to perform any agreement on its part to be performed
hereunder, (ii) any other condition of the Underwriters' obligations
13
hereunder is not fulfilled, (iii) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange or the American Stock
Exchange shall have occurred; (iv) a suspension or material limitation in
trading the Company's securities on the New York Stock Exchange shall have
occurred; (v) a general moratorium on commercial banking activities shall have
been declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States shall have occurred; (vi) any downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act or any 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; (vii) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war
shall have occurred or (viii) the occurrence of any other calamity or crisis or
any change in financial, political or economic conditions in the United States
or elsewhere, if the effect of any such event specified in clause (vii) or
(viii) in your judgment makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus. Any such termination shall be without
liability of any party to any other party except that the provisions of Section
4(g) and Section 6 hereof shall at all times be effective. If you elect to
prevent this Agreement from becoming effective or to terminate this Agreement as
provided in this Section, the Company shall be notified promptly by you by
telephone or telegram, confirmed by letter.
10. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered or telegraphed and confirmed to Banc of America Securities
LLC, Transaction Management (fax no. (000) 000-0000) and confirmed to Banc of
America Securities LLC at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000, Attention: Transaction Management; or if sent to the Company, shall be
mailed, delivered or telegraphed and confirmed to the Company at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Treasurer. Notice to any
Underwriter pursuant to Section 6 shall be mailed, delivered or telegraphed and
confirmed to such Underwriter's address as it appears in such Underwriter's
questionnaire or other notice furnished to the Company in writing for the
purpose of communications hereunder. Any party to this Agreement may change such
address for notices by sending to the parties to this Agreement written notice
of a new address for such purpose.
11. Parties. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons, officers and directors referred to in Section 6, and no other person
will have any right or obligation hereunder.
12. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
13. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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_____________________________________
15
If the foregoing correctly sets forth the understanding between the
Company and the several Underwriters, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement between the Company and the several Underwriters.
Very truly yours,
Xxxxxx-Xxxxxxxx Corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President, General
Counsel and Secretary
Accepted at New York, New York as of the date
first above written.
Banc of America Securities LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Mc Xxxxxx Investments Inc.
By: Banc of America Securities LLC
By: /s/ Xxxx Xxxxx
------------------------------------------
Principal
On behalf of each of the Underwriters
16
SCHEDULE A
Principal Amount
of Securities
to be
Underwriter Purchased
Banc of America Securities LLC $ 146,250,000
Xxxxxx Xxxxxxx & Co. Incorporated $ 39,375,000
XxXxxxxx Investments Inc. $ 39,375,000
-------------------
Total........................................... $ 225,000,000
17
EXHIBIT I
(1) The Indenture has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act of 1939 and is a valid
and binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject to the effect of (i) general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law, and (ii) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
(2) The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the purchasers thereof on the date of such opinion, will be
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the effect of (i) general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law, and (ii) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
(3) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(4) Neither the execution and delivery of the Underwriting Agreement nor
the performance of the transactions therein contemplated will result in the
violation of any statute or regulation or any order or decree of any court or
governmental authority known to us which is binding upon the Company or its
property, or conflict with or result in a default under any of the terms and
provisions of the Company's Amended Articles of Incorporation or Code of
Regulations or any indenture, loan agreement or any agreement listed on Exhibit
A attached hereto.
(5) No consent, approval, authorization or order of any governmental
agency or body is required for the issuance or sale by the Company of the
Securities, except such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities by the
Underwriters.
We have participated in the preparation of the Registration Statement
and Prospectus (certain of the documents incorporated into the Prospectus by
reference having previously been prepared and filed by the Company without our
participation). From time to time we have had discussions with officers and
employees of the Company, accountants and auditors, the independent accountants
who examined certain of the financial statements of the Company and its
consolidated subsidiaries included in the Registration Statement and Prospectus,
and your representatives concerning the information contained in the
Registration Statement and Prospectus and the proposed responses to various
items in Form S-3. Based thereupon we are of the opinion that the Registration
Statement and the Prospectus (except for financial statements, financial
schedules, and other financial data included therein, as to which we express no
opinion) at the time the Registration Statement became effective under the Act
18
complied as to form in all material respects with the Act and the Trust
Indenture Act and the respective rules and regulations thereunder, and that the
documents incorporated or deemed to be incorporated by reference into the
Prospectus that were filed prior to the date of this opinion (except for
financial statements, financial schedules, and other financial data included
therein, as to which we express no opinion) at the time they were filed complied
as to form in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder.
We do not know of any litigation or governmental proceedings
required to be described in the Prospectus that are not described as required,
or of any contracts or other 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. The
descriptions in the Registration Statement and Prospectus of statutes, legal and
governmental proceedings, contracts and other documents present fair summaries
of such statutes, legal and governmental proceedings, contracts or other
documents. We further are of the opinion that the statements contained in the
Prospectus under the caption "Description of the Notes" and "Certain United
States Federal Income Tax Considerations," insofar as they purport to summarize
the provisions of documents or the United States Federal tax laws described
therein, present fair summaries of such provisions or such United States Federal
tax laws in effect as of the date of the Prospectus.
The Registration Statement has become effective under the Act,
and to the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that purpose or
challenging the accuracy of any document incorporated by reference into the
Prospectus are pending or, to the best of our knowledge, threatened by the
Commission.
We have not independently verified and are not passing upon, and
do not assume any responsibility for, the accuracy, completeness or fairness
(except as set forth in the second preceding paragraph above) of the information
contained in the Registration Statement and Prospectus, including any document
incorporated or deemed to be incorporated therein by reference. Based upon the
participation and discussions described above, however, no facts have come to
our attention that cause us to believe that the Registration Statement (except
for financial statements, financial schedules, and other financial data included
therein), at the time it became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, or that the
Prospectus (with the foregoing exceptions), on the date of the Prospectus
contained or on the Closing Date contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
19
EXHIBIT II
(1) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the Rules and
Regulations and the answer to Item 10 of the Registration Statement form is
correct insofar as it relates to them.
(2) In their opinion, the financial statements and schedules examined by
them and included or incorporated by reference in the Registration Statement and
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and the
published rules and regulations thereunder.
(3) On the basis of procedures referred to in such letter, including a
reading of the latest available interim financial statements of the Company and
inquiries of officials of the Company responsible for financial and accounting
matters, nothing caused them to believe that:
(A) any unaudited financial statements included or incorporated in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the published
rules and regulations thereunder or are not stated on a basis substantially
consistent with that of the audited financial statements included in the
Company's most recent Annual Report on Form 10-K; or
(B) at a specified date not more than five days prior to the date of
such letter, there was any change in the capital stock, short-term debt or
long-term debt of the Company and its subsidiaries or any decrease in
consolidated net current assets or net assets as compared with amounts
shown in the most recent unaudited balance sheet included or incorporated
by reference in the Prospectus, except in all cases for changes or
decreases which the Prospectus discloses have occurred or may occur or as
may be set forth in such letter; or
(C) for the period from the date of the most recent unaudited balance
sheet included or incorporated by reference in the Prospectus to a
subsequent specified date not more than five days prior to the date of such
letter, there was any decrease, as compared with the corresponding period
of the previous year and with the period of corresponding length ended the
date of such unaudited balance sheet, in consolidated net sales,
consolidated net income before taxes, or net income, except in all cases
for changes or decreases which the Prospectus discloses have occurred or
may occur or as may be set forth in such letter.
(4) In addition to their examination referred to in their report included
or incorporated by reference in the Registration Statement and Prospectus and
the procedures referred to in (3) above, they have carried out certain other
specified procedures, not constituting an audit, with respect to certain of the
dollar amounts, percentages and other financial information to be agreed upon by
the Company and the Underwriters (in each case to the extent that such dollar
amounts, percentages and other financial information, are derived directly or by
analysis or computation, from the general accounting records of the Company and
its subsidiaries) that are included or
20
incorporated by reference in the Prospectus and appear or are incorporated by
reference in the Company's Annual Report on Form 10-K under the captions "Item
1. - Business", "Item 6. - Selected Financial Data", and "Item 7. - Management's
Discussion and Analysis of Financial Condition and Results of Operations", and
have found such dollar amounts, percentages and financial information to be in
agreement with the general accounting records of the Company and its
subsidiaries.
21
