Exhibit 1.1
Xxxxxxxx-Xxxxx Corporation
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Debt Securities
Underwriting Agreement General Terms and Conditions
Xxxxxxxx-Xxxxx Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain of its
debt securities (the "Securities") registered under the Securities Act
of 1933, as amended (the "Act"), as set forth in Section 2. The
Securities are to be issued in one or more series under one or more
indentures between the Company and such banking institutions, as
trustees, as, in the case of any such indenture or any such trustee, is
designated in Schedule II to the Underwriting Agreement (as defined
below) relating to any such series (each indenture and trustee so
designated with respect to any such series being hereinafter referred
to as the "Indenture" and the "Trustee", respectively).
From time to time, the Company may enter into one or more
underwriting agreements that provide for the sale of the Securities
specified in Schedule II to such underwriting agreement to the
underwriter or several underwriters named to Schedule I to such
underwriting agreement (the "Underwriters"). The general terms and
conditions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein
by reference, is herein referred to as this Agreement.
1. The Company proposes to issue and sell the Securities in
one or more series, which series may vary as to their terms (including,
but not limited to, interest rate, maturity, any redemption provisions
and any sinking fund requirements), all of such terms for any
particular series being determined at the time of sale. All or a
portion of particular series of the Securities will be purchased by the
Underwriters for resale upon terms of offering determined at the time
of sale. The Securities so to be purchased in any such offering are
hereinafter referred to as the "Designated Securities", and any firm or
firms named in Schedule I-A to this Agreement as acting as
representatives of such Underwriters are hereinafter referred to as the
"Representatives". If the firm or firms named in Schedule I-A to this
Agreement include only the firm or firms named in Schedule I hereto,
the terms "Underwriters" and "Representatives" shall each be deemed to
refer to such firm or firms. The term "Underwriters' Securities" means
Designated Securities other than Contract Securities. The term
"Contract Securities" means Designated Securities, if any, to be
purchased pursuant to Delayed Contracts (as defined in Section 3
hereof) below.
The obligations of the Underwriters under this Agreement are
several and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement in respect of the
Securities has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective under
the Act, in the form heretofore delivered or hereafter to be
delivered to the Representatives and, excluding exhibits to
such registration statement, but including all documents
incorporated by reference therein on or prior to the date of
this Agreement, to the Representatives for each of the other
Underwriters; such registration statement, including all
exhibits thereto but excluding Form T-1, and the prospectus
included in such registration statement, each as amended at
the date of this Agreement, being hereinafter called the
"Registration Statement" and the "Basic Prospectus",
respectively. As used in this Agreement, "Prospectus" means
the Basic Prospectus together with the prospectus supplement
specifically relating to the Designated Securities in the
definitive form filed or to be filed pursuant to Rule 424
under the Act; and "Preliminary Prospectus" means the Basic
Prospectus together with a preliminary prospectus supplement
specifically relating to the Designated Securities. Any
reference herein to the Basic Prospectus, and Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents or portions thereof incorporated by
reference therein pursuant to the applicable form under the
Act; and any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents or
portions thereof filed after the date of this Agreement under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and so incorporated by reference; and
(b) The Registration Statement and the Prospectus
conform, and any further amendments or supplements thereto,
when they become effective or are filed with the Commission,
will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the rules and regulations adopted by the
Commission, the Registration Statement and the Basic
Prospectus, on the effective date of the Registration
Statement, did not contain any 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; and the Prospectus does not, and any amendments or
supplements thereto, when they become effective or are filed
with the Commission, will not, contain any untrue statement of
a 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 the representations and warranties
contained in this paragraph (b) shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by any Underwriter through the Representatives
expressly for use therein.
3. Upon authorization by the Representatives of the release of
the Underwriters' Securities, the several Underwriters propose to offer
the Underwriters' Securities for sale upon the terms and conditions set
forth in the Prospectus.
The Company may specify in Schedule II to this Agreement that
the Underwriters are authorized to solicit offers to purchase
Designated Securities, in the maximum aggregate principal amount
specified in such Schedule II, from the Company pursuant to delayed
delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex I attached hereto but with such
changes therein as the Representatives and the Company may authorize or
approve. If so specified, the Underwriters will endeavor to make such
arrangements, and as compensation therefor the Company will pay to the
Representatives, for the accounts of the Underwriters, at the Time of
Delivery (as defined in Section 4 hereof), a commission in the amount
set forth in such Schedule II. Delayed Delivery Contracts, if any, are
to be with institutional investors of the types approved by the Company
and set forth in the Prospectus and subject to other conditions therein
set forth. The Underwriters will not have any responsibility in respect
of the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted
from the principal amount of Designated Securities to be purchased by
each Underwriter as set forth in Schedule I to this Agreement shall be,
in each case, the principal amount of Contract Securities which the
Company has been advised by the Representatives has been attributed to
such Underwriter, provided that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be,
in each case, that proportion of Contract Securities which the
principal amount of Designated Securities to be purchased by such
Underwriter under this Agreement bears to the total principal amount of
the Designated Securities (rounded as the Representatives may determine
to the nearest $1,000 principal amount). The total principal amount of
Underwriters' Securities to be purchased by all the Underwriters
pursuant to this Agreement shall be the total principal amount of
Designated Securities set forth in Schedule I to this Agreement less
the principal amount of the Contract Securities. The Company will
deliver to the Representatives not later than 3:30 p.m., New York time,
on the third business day preceding the Time of Delivery (or such other
time and date as the Representatives and the Company may agree upon in
writing) a written notice setting forth the principal amount of
Contract Securities.
4. Underwriters' Securities to be purchased by each
Underwriter pursuant to this Agreement, in definitive form, and in such
authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase
price therefor by certified or official bank check or checks, payable
to the order of the Company in the funds specified in Schedule II to
this Agreement, all at the place and time and date specified in such
Schedule II or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery".
Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to Representatives
for the accounts of the Underwriters a check payable to the order of
the party designated in Schedule II to this Agreement in the amount of
the compensation payable by the Company to the Underwriters in respect
of any Delayed Contracts as provided in Section 3 hereof and in such
Schedule II.
5. The Company agrees with each of the Underwriters of the
Designated Securities:
(a) To make no amendment or supplement to the Registration
Statement or Prospectus after the execution of this Agreement and prior
to the Time of Delivery without furnishing prior thereto a copy of each
such amendment or supplement to the Representatives; to advise the
Representatives promptly of any such amendment or supplement after the
Time of Delivery, to furnish the Representatives with copies of any
such amendment or supplement after the Time of Delivery and to file
promptly all documents required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in each case for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Designated
Securities; to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has become effective or when any supplement to the Prospectus
or any amended Prospectus has been filed, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of the Prospectus or any supplement thereto or any amended
Prospectus, of the suspension of the qualification of the Designated
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and
in the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or any supplement
thereto or any amended Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of the Designated Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
in such quantities as the Representatives may from time to time
reasonably request, and, if the delivery of a prospectus is required at
any time and if at such time any event shall have occurred 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 in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon the request of
the Representatives so to amend or supplement the Prospectus or file
such document, as the case may be, and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders not
later than eighteen months after the date of this Agreement an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and covering a period
of at least twelve consecutive months beginning after the date of this
Agreement; and
(e) During the period beginning on the date of this Agreement
and continuing to and including the earlier of (i) the termination of
trading restrictions on the Designated Securities, as notified to the
Company by the Representatives, and (ii) the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year after the
Time of Delivery and which are substantially similar to the Designated
Securities, without the prior written consent of the Representatives.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to
the Underwriters and dealers; (ii) the cost of printing any Agreement
among Underwriters, this Agreement, the Indenture, any Delayed Delivery
Contracts, any Blue Sky and Legal Investment Memoranda and any other
documents in connection with the offering, purchase, sale and delivery
of the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services
for rating the Designated Securities; (v) any filing fees incident to
any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Designated Securities; (vi) the
cost of preparing certificates for the Designated Securities; (vii) the
fees and expenses of the Trustee under the Indenture and any agent of
the Trustee and the fees and disbursements of any counsel for the
Trustee in connection with the Indenture and the Designated Securities;
and (viii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided
for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the
Designated Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of the Designated
Securities hereunder shall be subject, in their discretion, to the
condition that all representations and warranties of the Company herein
are, at and as of the Time of Delivery, true and correct in all
material respects, the condition that the Company shall have performed
in all material respects all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or, to
the best knowledge of the Company, threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions,
dated the date of the Time of Delivery, in form and substance
reasonably satisfactory to the Representatives, with respect
to the incorporation of the Company, the validity of the
Indenture, the Designated Securities, the Delayed Delivery
Contracts, if any, the Registration Statement, the Prospectus,
and such other matters as the Representatives may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to
pass upon such matters;
(c) The General Counsel of the Company shall have
furnished to the Representatives his written opinion, dated
the date of the Time of Delivery, in form and substance
reasonably satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with corporate power to own its
properties and conduct its business as described in
the Prospectus as amended or supplemented, if
applicable;
(ii) To the best of such counsel's knowledge
there is no pending or threatened action, suit or
proceeding before any court or governmental agency,
authority or body involving the Company or any of its
properties required to be disclosed in the
Registration Statement which is not adequately
disclosed in the Prospectus as amended or
supplemented, if applicable; and such counsel does
not know of any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be incorporated
by reference into the Prospectus as amended or
supplemented, if applicable, or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented, if applicable,
which are not filed or incorporated by reference or
described as required;
(iii) This Agreement and all Delayed
Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company;
(iv) The Designated Securities have been
duly authorized by the Company and, when duly
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid
for by the Underwriters, in the case of the
Underwriters' Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in
the case of any Contract Securities, will constitute
valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture,
subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or
affecting enforcement of creditors' rights and to
general equity principles; and the Designated
Securities and the Indenture conform in all material
respects to the description thereof in the Prospectus
as amended or supplemented, if applicable;
(v) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes
a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting
enforcement of creditors' rights and to general
equity principles; and the Indenture has been duly
qualified under the Trust indenture Act;
(vi) The issuance and sale of the Designated
Securities and the compliance by the Company with the
provisions of the Designated Securities, the
Indenture, each of the Delayed Delivery Contracts, if
any, and this Agreement and the consummation of the
transactions relating to the Designated Securities
contemplated herein and therein will not conflict
with or result in a breach of the terms or provisions
of, or constitute a default under, any indenture,
loan agreement or other agreement or instrument in
respect of indebtedness for money borrowed known to
such counsel to which the Company is a party or by
which the Company is bound or, to the knowledge of
such counsel, any other agreement or instrument to
which the Company is a party or by which the Company
is bound or to which any of the property or assets of
the Company is subject, nor will such action result
in any violation of the provisions of the Restated
Certificate of Incorporation, as amended, or the
By-Laws of the Company or, to the knowledge of such
counsel, any statute or any order, rule or regulation
of any court or regulatory authority or other
governmental agency or body having jurisdiction over
the Company or any of its properties; and no consent,
approval, authorization, order, registration or
qualification of or with any court or any such
regulatory authority or other governmental agency or
body is required for the issuance and sale by the
Company of the Designated Securities or the
consummation of the transactions relating to the
Designated Securities contemplated by this Agreement
or the Indenture or any of such Delayed Delivery
Contracts, except such as have been obtained under
the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws;
(vii) The documents or portions thereof, if
any, incorporated by reference in the Prospectus
(other than the financial statements, related
schedules and other financial and statistical
information included therein, as to which such
counsel need express no opinion), when they were
filed with the Commission, complied as to form in all
material respects with the requirements of the
Exchange Act and the related rules and regulations
adopted by the Commission; and
(viii) The Registration Statement and the
Prospectus as amended or supplemented, if applicable,
(other than the financial statements, related
schedules and other financial and statistical
information included therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and
regulations thereunder; and, although such counsel is
not passing upon, and does not assume responsibility
for the accuracy, completeness or fairness of
statements contained in the Registration Statement or
the Prospectus as amended or supplemented, if
applicable (except as to the matters specified in the
last clause of subparagraph (iv) of this paragraph
(c)), nothing has come to the attention of such
counsel that causes such counsel to believe that
either the Registration Statement or the Prospectus
as amended or supplemented, if applicable, contains
an untrue statement of a material fact or omits to
state a material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading;
(d) At the Time of Delivery, Deloitte & Touche LLP shall have
furnished to the Representatives a letter or letters, dated the Time of
Delivery, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex II hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest financial statements
contained in the Prospectus any loss or interference material to the
business of the Company and its subsidiaries taken as a whole from
fire, explosion, flood or other calamity or from any labor dispute or
court or governmental action, order or decree and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any material change in the capital stock or
long-term debt of the Company or any material adverse change, or any
development which will result in a material adverse change, in the
business, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise (in any such case described in clause (i) or (ii) hereof)
than as set forth or contemplated in the Prospectus, the effect of
which (in any such case described in clause (i) or (ii) hereof) 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 Designated Securities on the terms and
in the manner contemplated in the Prospectus;
(f) Subsequent to the execution of this Agreement, there shall
not have occurred any downgrading in any rating accorded to the
Company's senior debt securities by Xxxxx'x Corporation or Standard &
Poor's Securities, Inc.; provided, however, that this paragraph (f)
shall not apply to either of such rating agencies which shall have
notified the Representatives of the rating of the Designated Securities
prior to the execution of this Agreement;
(g) Subsequent to the execution of this Agreement, there shall
not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities; or
(iii) the engagement by the United States in hostilities which have
resulted in the declaration, on or after the date of this Agreement, of
a national emergency or war, the effect of which (in any such case
described in clause (i), (ii) or (iii) hereof) in the reasonable
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery one or more certificates
of officers of the Company reasonably satisfactory to the
Representatives as to the accuracy in all material respects of the
representations and warranties of the Company herein at and as of the
Time of Delivery, as to the performance in all material respects by the
Company of all of its obligations hereunder to be performed at or prior
to the Time of Delivery, and as to the matters set forth in paragraph
(a) and clauses (i) and (ii) of paragraph (e) of this Section 7, with
the certificate based upon knowledge or belief as to proceedings
initiated or threatened referred to in such paragraph (a) and as to the
matters referred to in clauses (i) and (ii) of such paragraph (e).
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, 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 an
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto, 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 action or claim;
provided, however, that the Company shall 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 or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
the Representatives expressly for use therein; and provided, further,
that such indemnity with respect to the Registration Statement or any
Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage
or liability purchased the Designated Securities which are the subject
thereof if such person did not receive a copy of the Prospectus or the
Prospectus as amended or supplemented (excluding documents incorporated
by reference) at or prior to the confirmation of the sale of the
Designated Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material
fact contained in the Registration Statement or any such Preliminary
Prospectus was corrected in the Prospectus or the Prospectus as amended
or supplemented.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities 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 an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, 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 the Registration Statement, any Preliminary Prospectus, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsection (a) or (b) above
in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
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
(or actions in respect thereof), 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 such 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 statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) 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 which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
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 such action or claim. 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 Designated 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 8 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 8 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 officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase
under this Agreement, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase
such Underwriters' Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective
prescribed periods, the Representatives notify the Company that they
have so arranged for the purchase of such Underwriters' Securities, or
the Company notifies the Representatives that it has so arranged for
the purchase of such Underwriters' Securities, the Representatives or
the Company shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter"
as used in this Agreement shall include any person substituted under
this Section with like effect as if such person had originally been a
party to this Agreement.
(b) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives, by the Company, or by both, as the
case may be, as provided in subsection (a) above, the aggregate
principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal
amount of all the Designated Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the
principal amount of Underwriters' Securities which such Underwriter
agreed to purchase under this Agreement and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Designated Securities which such Underwriter
agreed to purchase under this Agreement) of the Underwriters'
Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by the Representatives, by the Company, or by both, as the
case may be, as provided in subsection (a) above, the aggregate
principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of all the
Designated Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any officer
or director or controlling person of the Company, and shall survive
delivery of and payment for the Designated Securities.
11. If this Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities except as
provided in Section 6 and Section 8 hereof; but, if for any other
reason Underwriters' Securities are not delivered by or on behalf of
the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the
Designated Securities, but the Company shall then be under no further
liability to any Underwriter with respect to the Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives shall act
on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by the
Representatives.
All statements, requests, notices and agreements hereunder
shall be in writing or by telegram if promptly confirmed in writing and
if to the Underwriters shall be sufficient in all respects, if
delivered or sent by certified mail, return receipt requested, to the
Representatives in care of the firm and at the address specified in
Schedule II to this Agreement and if to the Company shall be sufficient
in all respects if delivered or sent by certified mail, return receipt
requested, to the address of the Company set forth on the facing page
of the Registration Statement, Attention: Treasurer; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by certified mail, return receipt requested, to
such Underwriter at its address set forth in its Underwriters'
Questionnaire delivered to the Company.
13. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. No purchaser of any of the
Designated Securities from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be construed in accordance with the
laws of the State of New York.
16. This Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
ANNEX I
Delayed Delivery Contract
XXXXXXXX-XXXXX CORPORATION
c/o
, 200[ ]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxxxx-Xxxxx
Corporation (hereinafter called the "Company"), and the Company agrees
to sell to the undersigned,
$
principal amount of the Company's [Title of Designated Securities]
(hereinafter called the "Designated Securities"), offered by the
Company's Prospectus dated , 200[ ] [as amended or supplemented],
receipt of a copy of which is hereby acknowledged, at a purchase price
of % of the principal amount thereof, plus accrued interest from the
date from which interest accrues as set forth below, and on the further
terms and conditions set forth in this contract.
[The undersigned will purchase the Designated Securities from
the Company on ,200[ ] (the "Delivery Date") and interest on
the Designated Securities so purchased will accrue from
, 200[ ] .]
[The undersigned will purchase the Designated Securities from
the Company on the delivery date or dates and in the principal amount
or amounts set forth below:
Principal Date From Which
Delivery Date Amount Interest Accrues
, 200[ ] $ , 200[ ]
, 200[ ] $ , 200[ ]
Each such date on which Designated Securities are to be purchased
hereunder is hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned
has agreed to purchase on [the] [each] Delivery Date shall be made to
the Company or its order by certified or official bank check in
Clearing House funds at the office of , , ,
or by wire transfer to a bank account specified by the Company, on
[the] [such] Delivery Date upon delivery to the undersigned of the
Designated Securities then to be purchased by the undersigned in
definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five
full business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [the] [each] Delivery Date shall
be subject to the conditions that (a) the purchase of Designated
Securities to be made by the undersigned shall not on [the] [such]
Delivery Date be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (b) the Company, on or before
, 200[ ], shall have sold to the several Underwriters, pursuant
to the Underwriting Agreement dated , 200[ ] with the Company;
an aggregate principal amount of Designated Securities equal to $ ,
minus the aggregate principal amount of Designated Securities to be
covered by this contract and other contracts similar to this contract.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities shall not be affected by the failure of any
purchaser to take delivery of and make payment for Designated
Securities pursuant to other contracts similar to this contract.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set
forth below notice to such effect, accompanied by a copy of the opinion
or opinions of counsel for the Company delivered to the Underwriters in
connection therewith.
The undersigned represents and warrants that, as of the date
of this contract, the undersigned is not prohibited from purchasing the
Designated Securities hereby agreed to be purchased by it under the
laws of the jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the
other.
This contract may be executed by either of the parties hereto
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and
the same instrument.
It is understood that the acceptance by the Company of any
Delayed Delivery Contract (including this contract) is in the Company's
sole discretion and that, without limiting the foregoing, acceptances
of such contracts need not be on a first-come, first-served basis. If
this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the
Company.
Yours very truly,
By_________________________________________
(Signature)
_________________________________________
(Name and Title)
_________________________________________
(Address)
Accepted, , 200[ ]
XXXXXXXX-XXXXX CORPORATION
By
------------------------------------------
[Title]
ANNEX II
At the Time of Delivery, Deloitte & Touche LLP shall have furnished to the
Representatives a letter or letters, dated the date of the Time of Delivery, in
form and substance reasonably satisfactory to the Representatives, to the effect
that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the related rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and schedules
examined by them and included or incorporated by reference in the
Prospectus or any amendment or supplement thereto prior to the date of
such letter comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related rules and regulations adopted by the
Commission;
(iii) On the basis of having carried out certain specified
procedures (but not an examination in accordance with auditing
standards generally adopted in the United States of America) which
would not necessarily reveal matters of significance with respect to
the comments set forth below, including a reading of the unaudited
financial statements and schedules and other information referred to
below, a reading of the latest interim financial statements made
available by the Company, a reading of the minutes of the meetings of
the Board of Directors, Executive Committee and Audit Committee of
the Company since December 31, 200[ ] [date of last audited financial
statements], inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
[(A) the unaudited financial statements included or
incorporated by reference in the Prospectus or any amendment or
supplement thereto prior to the date of such letter, do not comply
as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related rules and
regulations adopted by the Commission as they relate to Form 10-Q
or are not fairly presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on Form
10-K for the year ended December 31, 200[ ] (the "Annual Report");]
[(B) the unaudited information with respect to the Company's
consolidated financial position and consolidated results of
operations as of and for the [three] [six] [nine] months ended
[March 31] [June 30] [September 30], 200[ ] and 200[ ] included in
the Prospectus or any such amendment or supplement thereto under
the caption " " does not agree with the corresponding
amounts in the unaudited consolidated financial statements referred
to in Clause (A) or was not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Annual Report;]
[(C) the internal unaudited financial statements for the
month[s] ended , 200[ ] and 200[ ], which were
not included in the Prospectus or any such amendment or supplement
thereto but from which were derived certain unaudited financial
information included in the Prospectus or any such amendment or
supplement thereto in text under the caption " ", are not
stated on a basis substantially consistent with that of the audited
financial statements included in the Prospectus;]
[(D) certain unaudited financial information included in the
Prospectus or any such amendment or supplement thereto in text
under the caption " " does not agree with the corresponding amounts
in the internal unaudited financial statements referred to in
Clause (C) or was not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included in the Prospectus or any such
amendment or supplement thereto;]
(E) as of a specified date not more than five days prior to
the date of delivery of such letter, there have not been any
changes in the capital stock or long-term debt of the Company and
its subsidiaries on a consolidated basis, or any decreases in
consolidated net current assets or consolidated net assets of the
Company and its subsidiaries, in each case as compared with amounts
shown in the balance sheet of the Company and its subsidiaries as
of , 200[ ] [date of last Form 10-Q financial statements
included or incorporated by reference in the Prospectus or any such
amendment or supplement thereto] included or incorporated by
reference in the Prospectus or any such amendment or supplement
thereto, except in each case for changes or decreases which the
Prospectus or any such amendment or supplement thereto discloses
have occurred or may occur and/or which are described in such
letter; and
(F) for the period from , 200[ ] [date of last
Form 10-Q financial statements included or incorporated by
reference in the Prospectus or any such amendment or supplement
thereto] to such specified date there were any decreases in
consolidated net sales, income before income taxes or the total or
per share amounts of net income, in each case as compared with the
comparable period of the preceding year, except in each case for
decreases which the Prospectus or any such amendment or supplement
thereto discloses have occurred or may occur and/or which are
described in such letter; and
(iv) In addition, they have performed certain specified
procedures, not constituting an audit, with respect to certain
information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) which appear in the Prospectus or any such amendment or
supplement thereto, (excluding documents incorporated by reference)
[and in Exhibit[s] 12 [and ] to the Registration Statement], in the
Annual Report and Exhibit[s] [and ] thereto, and in the Company's
Quarterly Report[s] for the quarter[s] ended [March 31] [and] [,] [June
30] [and September 30], 200[ ] and Exhibit[s] [and ] thereto, and
which are specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement, excluding any questions of legal
interpretation.
