1
XXXXXX CORPORATION
U.S.$162,500,000
Medium-Term Notes
Due from 9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
October 12, 1995
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Salomon Brothers Inc
Two New York Plaza
New York, New York 10004
Dear Sirs:
Xxxxxx Corporation, a Delaware corporation (the "Company"), confirms
its agreement with Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") and
Xxxxxxx Xxxxxxxx Inc ("Salomon") (each of Xxxxxx Xxxxxxx and Xxxxxxx, an
"Agent" and collectively, the "Agents") with respect to the issue and sale from
time to time by the Company of up to U.S.$162,500,000 aggregate principal
amount of its medium-term notes due from 9 months to 30 years from date of
issue (the "Notes"). The Notes will be issued under an Indenture, dated as of
October 1, 1990 (the "Indenture"), between the Company and National City Bank,
as Trustee (the "Trustee"), and will have the maturities, interest rates,
redemption provisions, if any, and other terms as set forth in supplements to
the Basic Prospectus referred to below.
The Company hereby appoints the Agents as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Notes from the Company
by others and, on the basis of the representations and warranties herein
contained, but subject to terms and conditions herein set forth, each of the
Agents agrees to use reasonable efforts to solicit and receive offers to
purchase Notes upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, such
Agent may also purchase Notes as principal and, if requested by such Agent, the
Company will enter into a Terms Agreement relating to such sale (a "Terms
2
Agreement") in accordance with the provisions of Section 2(b) hereof. In
acting under this Agreement and in connection with the sale of any Notes by the
Company (other than Notes sold to such Agent as principal), such Agent is
acting solely as agent of the Company and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Notes.
Notwithstanding anything herein to the contrary, the Company reserves the right
to offer and sell the Notes directly to investors on its own behalf in those
jurisdictions where it is permitted to do so.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes, which has been declared effective. Such registration statement,
including the exhibits thereto, as amended at the Commencement Date (as
hereinafter defined), is hereinafter referred to as the "Registration
Statement". The Company proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Notes. The prospectus in the
form in which it appears in the Registration Statement is hereinafter referred
to as the "Basic Prospectus". The term "Prospectus" means the Basic Prospectus
together with the prospectus supplement or supplements (each a "Prospectus
Supplement") specifically relating to Notes, as filed with, or transmitted for
filing to, the Commission pursuant to Rule 424. As used herein, the terms
"Basic Prospectus" and "Prospectus" shall include in each case the documents,
if any, incorporated by reference therein. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all documents
that are deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each of the Agents as of the Commencement Date, as
of each date on which the Company accepts an offer to purchase Notes (including
any purchase by an Agent as principal, pursuant to a Terms Agreement or
otherwise), as of each date the Company issues and sells Notes and as of each
date the Registration Statement or the Basic Prospectus is amended or
supplemented, as follows (it being understood that such representations,
warranties and agreements shall be deemed to relate to the Registration
Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
2
3
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document incorporated by reference in the Prospectus
complied or will comply when filed with the Commission in all material respects
with the Exchange Act and the rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented, if
applicable, will 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, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the rules and regulations
of the Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any 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, except that the representations and warranties set forth
in this Section 1(b) do not apply (i) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to the
Agents furnished to the Company in writing by the Agents expressly for use
therein or (ii) to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each significant subsidiary as defined in Rule 405 of Regulation
C of the Commission of the Company (a "Significant Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
3
4
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, in each case enforceable against the Company
in accordance with its terms except as (i) rights to indemnity and contribution
hereunder or thereunder may be limited under applicable law, (ii) the
enforceability hereof and thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (iii) the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly paid
for by the purchasers thereof, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(h) The execution and delivery by the Company of, and the performance
by the Company of its obligations under this Agreement, the Notes, the
Indenture and any applicable Terms Agreement will not contravene any provision
of applicable law or the certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval,
4
5
authorization or order of or qualification with any governmental body or agency
is required for the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Terms Agreement, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Notes.
(i) There has not been any material adverse change, or any
development known to the officers of the Company which the Company presently
and reasonably believes will involve a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required.
(k) Each of the Company and its Significant Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. In connection with the actions of each
Agent as agent hereunder, such Agent severally agrees, as agent of the Company,
to use reasonable efforts to solicit offers to purchase Notes upon the terms
and conditions set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
each Agent to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one
business day's prior notice from the Company, such Agent will forthwith suspend
solicitations
5
6
of offers to purchase Notes from the Company until such time as the Company has
advised such Agent that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c); PROVIDED, HOWEVER, that if the Registration Statement or Prospectus is
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the
Notes or for a change such Agent deems to be immaterial), such Agent shall not
be required to resume soliciting offers to purchase Notes until the Company has
delivered such certificates, opinions and letters as such Agent may reasonably
request.
The Company agrees to pay to each Agent, as consideration for the sale
of each Note resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the
purchase price of such Note equal to the following percentage of the purchase
price of such Note:
Term Commission Rate
---- ---------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to and including 30 years .750%
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such Agent as agent that in such
Agent's judgment should be considered by the Company. The Company shall have
the sole right to accept offers to purchase Notes and may reject any offer in
whole or in part. Each Agent shall have the right to reject any offer to
purchase Notes that such Agent considers to be unacceptable, and any such
rejection shall not be deemed a breach of such Agent's agreements contained
herein.
6
7
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement and, if
requested by such Agent, the Company will enter into a Terms Agreement that
will provide for the sale of such Notes to and the purchase thereof by such
Agent. Each Terms Agreement will be substantially in the form of Exhibit A
hereto but may take the form of an exchange of any form of written
telecommunication between an Agent and the Company.
Each Agent's commitment to purchase Notes as principal, whether
pursuant to a Terms Agreement or otherwise, shall be deemed to have been made
on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each agreement by an Agent to purchase Notes as principal (whether or not set
forth in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the Settlement Date (as hereinafter
defined) the maturity date of such Notes, the price to be paid to the Company
for such Notes, the interest rate and interest rate formula, if any, applicable
to such Notes and any other terms of such Notes. Each such agreement shall
also specify any requirements for officers' certificates, opinions of counsel
and letters from the independent public accountants of the Company pursuant to
Section 4 hereof. A Terms Agreement may also specify certain provisions
relating to the reoffering of such Notes by an Agent.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. With respect to each sale of Notes to an Agent as
principal that is not made pursuant to a Terms Agreement, the procedural
details relating to the issue and delivery of such Notes and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined). Each date of delivery of and payment for Notes to be purchased by an
Agent as principal, whether pursuant to a Terms Agreement or otherwise, is
referred to herein as a "Settlement Date".
(c) ADMINISTRATIVE PROCEDURES. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached hereto
as Exhibit B) (the "Administrative Procedures"), as amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Company and each Agent.
(d) DELIVERY. The documents required to be delivered by Section 4 of
this Agreement as a condition precedent to the Agents' obligation to begin
soliciting offers to purchase Notes as agents of the Company shall be delivered
at the office of
7
8
Brown & Wood, counsel for the Agents, not later than 10:00 a.m., New York City
time, on the date hereof, or at such other time and/or place as the Agents and
the Company may agree upon in writing, but in no event later than the day prior
to the date on which the Agents begin soliciting offers to purchase Notes or
the first date on which the Company accepts any offer by an Agent to purchase
Notes as principal (the "Commencement Date").
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement or any Terms Agreement, the Company will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration Statement
unless the Company has previously furnished to each Agent a copy thereof for
such Agent's review and, unless the Company is advised by counsel that it is
necessary to do so, will not file any such proposed supplement or amendment to
which any Agent reasonably objects; PROVIDED, HOWEVER, that the foregoing
requirement shall not apply to any of the Company's periodic filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act, copies of which filings the Company will cause to be
delivered to each Agent promptly after being mailed for filing with the
Commission. Subject to the foregoing sentence, the Company will promptly cause
each Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) or (c). The Company will promptly
advise each Agent (i) of the filing of any amendment or supplement to the Basic
Prospectus, (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or notice of suspension of qualification and,
if issued, to obtain as soon as possible the withdrawal thereof. If the Basic
Prospectus is amended or supplemented as a result of the filing under the
Exchange Act of any document incorporated by reference in the Prospectus, the
Agents shall not be obligated to solicit offers to purchase Notes so long as
they are not reasonably satisfied with such document; provided that the Agents
have identified the specific concerns reasonably creating such concern and the
Company has failed to make a reasonable response to such concerns.
8
9
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances when the Prospectus, as then amended or supplemented, is
delivered to a purchaser, not misleading, or if, in the reasonable opinion of
any Agent or in the opinion of the Company, it is necessary at any time to
amend or supplement the Prospectus, as then amended or supplemented, to comply
with applicable law, the Company will immediately notify each Agent by
telephone (with confirmation in writing) to suspend solicitation of offers to
purchase Notes and, if so notified by the Company, each Agent shall forthwith
suspend such solicitation and cease using the Prospectus as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus as then amended or supplemented, it shall
so advise each Agent promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to each Agent in such quantities as such Agent may reasonably
request. If such amendment or supplement and any documents, certificates,
opinions and letters furnished to the Agents pursuant to paragraph (f) below
and Section 5(a), 5(b) and 5(c) in connection with the preparation and filing
of such amendment or supplement are reasonably satisfactory in all material
respects to such Agents, upon filing of such amendment or supplement with the
Commission or upon the effectiveness of an amendment to the Registration
Statement, such Agents will resume the solicitation of offers to purchase Notes
hereunder. Notwithstanding any other provision of this Section 3(b), until the
distribution of any Notes an Agent may own as Principal has been completed, if
any event described above in this paragraph (b) occurs, the Company will, at
its own expense, forthwith prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented, reasonably satisfactory in all
material respects to such Agent, and will supply such amended or supplemented
Prospectus to such Agent in such quantities as such Agent may reasonably
request. If such amendment or supplement and any documents, certificates,
opinions and letters furnished to such Agent pursuant to paragraph (f) below
and Sections 5(a), 5(b) and 5(c) in connection with the preparation and filing
of such amendment or supplement are reasonably satisfactory in all material
respects to such Agent, upon the filing of such amendment or supplement with
the
9
10
Commission or upon the effectiveness of an amendment to the Registration
Statement, such Agent may resume its resale of Notes as principal.
(c) The Company will make generally available to its security holders
and to each Agent as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities
Act) of the Registration Statement with respect to each sale of Notes. If such
fiscal quarter is the last fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after the
close of the period covered thereby and in all other cases shall be made
available not later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, two
signed copies of the Registration Statement, including exhibits and all
amendments thereto, and during the period mentioned in Section 3(b) above, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto as each Agent may reasonably
request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to maintain such qualifications for as long as the
Agents shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish to
each Agent such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as such Agent may from time to time
reasonably request and shall notify each Agent promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
10
11
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation
and filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the qualification of the
Notes under securities or Blue Sky laws in accordance with the provisions of
Section 3(e), including filing fees and the reasonable fees and disbursements
of counsel for the Agents in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda, (v) the printing and
delivery to the Agents in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Basic Prospectus
and any amendments or supplements thereto, (vi) the printing and delivery to
the Agents of copies of the Indenture and any Blue Sky or Legal Investment
Memoranda, (vii) any fees charged by rating agencies for the rating of the
Notes, (viii) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (ix) the
reasonable fees and disbursements of counsel for the Agents incurred in
connection with the offering and sale of the Notes, including any opinions to
be rendered by such counsel hereunder, and (x) any reasonable out-of-pocket
expenses incurred by the Agents, including any advertising expenses incurred by
the Agents with the approval of the Company.
(h) Between the date of any agreement by an Agent to purchase Notes
as principal and the Settlement Date with respect to such agreement, the
Company will not, without such Agent's prior consent, offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company substantially
similar to the Notes (other than (i) the Notes that are to be sold pursuant to
such agreement and (ii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided in such agreement.
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company, each
Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company herein, to the
accuracy in all material respects of the statements of the Company's officers
made in each certificate furnished pursuant to the provisions hereof and to the
performance and observance by the Company in all material respects of all
covenants and
11
12
agreements herein contained on its part to be performed and observed (in the
case of any Agent's obligation to solicit offers to purchase Notes, at the time
of such solicitation, and, in the case of any Agent's or any other purchaser's
obligation to purchase Notes, at the time the Company accepts the offer to
purchase such Notes and at the time of purchase) and (in each case) to the
following additional conditions precedent:
(a) At the time of such solicitation or the time of such purchase, as
the case may be:
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations, of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement that, in the judgment of any
Agent, is material and adverse and that makes it, in the judgment of
any Agent, impracticable to market the Notes on the terms and in the
manner contemplated in the Prospectus except, in the case of any
purchase of Notes, as disclosed to the Agents in writing by the
Company before the Company accepted the offer to purchase such Notes.
(ii) There shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, the New
York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (B) suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market, (C) declaration of a
general moratorium on commercial banking activities in New York by
either Federal or New York State authorities or (D) any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of any Agent, is material and
adverse and, in the case of any of the events described in clauses
(ii)(A) through (D), such event, singly or together with any other
such event, makes it, in the judgment of any Agent, impracticable to
market the Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented, except, in the case of any
purchase of Notes, for any such event occurring before the Company
accepted the offer to purchase such Notes.
(iii) There shall not have been any downgrading, nor any notice
given of any intended or potential downgrading or of a possible change
that does not indicate the direction of the possible change, in the
rating accorded any of the
12
13
Company's securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act, except, in the case of any purchase of
Notes, as disclosed to the Agents in writing by the Company before the
Company accepted the offer to purchase such Notes.
(b) On the Commencement Date and, if called for by any agreement by
an Agent to purchase Notes as principal, on the corresponding Settlement Date,
each Agent shall have received:
(i) The opinion, dated as of such date, of Xxxxxxx & Xxxxxx,
independent counsel for the Company, to the effect that:
(A) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus, as
amended or supplemented, and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(B) each Significant Subsidiary of the Company has
been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified
to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(C) each of the Company and its Significant
Subsidiaries has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and
has made all declarations and filings with, all federal,
state, local and other
13
14
governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in
the manner described in the Prospectus, as amended or
supplemented, except to the extent that the failure to obtain
or file would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Terms
Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the
Company, in each case enforceable against the Company in
accordance with its terms except as (i) rights to indemnity
and contribution hereunder or thereunder may be limited under
applicable law, (ii) the enforceability hereof and thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (iii) the availability of
equitable remedies may be limited by equitable principles of
general applicability;
(E) the Notes have been duly authorized and, when
executed and authenticated in accordance with the Indenture
and delivered to and duly paid for by the purchasers thereof,
will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(F) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Notes, the Indenture and any applicable
Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument known to
such counsel and binding upon the Company or any of its
subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of or qualification
14
15
with any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Terms
Agreement, except such as are specified and have been obtained
and such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of
the Notes;
(G) the statements in the Prospectus, as amended or
supplemented, under the captions "Description of Debt
Securities" and "Plan of Distribution", and in "Item 3 - Legal
Proceedings" of the Company's most recent annual report on
Form 10-K incorporated by reference in the Prospectus and Item
I of Part II of the Company's quarterly reports on Form 10-Q,
if any, filed since the most recent annual report on Form 10-K
incorporated by reference in the Prospectus, in each case
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(H) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that is required to be described in the Registration
Statement or the Prospectus, as amended or supplemented, and
is not so described or of any statute, regulation, contract or
other document that is required to be described in the
Registration Statement or the Prospectus, as amended or
supplemented, or to be filed as an exhibit to such
Registration Statement that is not described or filed as
required;
(I) the statements in the Prospectus, as amended or
supplemented, under the caption "Taxation" fairly summarize
the matters referred to therein as of the date of such
Opinion; and
(J) such counsel (1) is of the opinion that each
document incorporated by reference in the Prospectus, as
amended or supplemented (except for financial statements and
schedules and other financial or statistical data included or
incorporated included therein as to which such counsel need
not express any
15
16
opinion), complied as to form when filed with the Commission
in all material respects with the Exchange Act and the rules
and regulations of the Commission thereunder, (2) is of the
opinion that the Prospectus, as amended or supplemented,
(except for financial statements and schedules and other
financial or statistical data included or incorporated therein
as to which such counsel need not express any opinion), comply
as to form in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder and
(3) believes that (except for financial statements and
schedules and other financial or statistical data included or
incorporated therein as to which such counsel need not express
any belief) the Prospectus, as amended or supplemented, if
applicable, as of the date such opinion is delivered does 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 the light of the circumstances under
which they were made, not misleading.
(ii) The opinion, dated as of such date, of Brown & Xxxx, special
counsel for the Agents, covering the matters in subparagraphs (D), (E)
and (G) (with respect to statements in the Prospectus, as amended or
supplemented, under the captions "Description of Debt Securities" and
"Plan of Distribution").
With respect to subparagraphs (A), (B), (C), (F), (G) (with respect to
descriptions of Legal Proceedings), and (H), Xxxxxxx & Xxxxxx may state that
their opinion is based solely upon the opinion of Xxxxxxx X. Xxxxxxxxxx,
General Counsel of the Company, which opinion shall be addressed to both
Xxxxxxx & Xxxxxx and the Agents. With respect to subparagraph (J) of paragraph
(b)(i) above, Xxxxxxx & Xxxxxx may state that their opinion and belief are
based upon their participation in the preparation of the Prospectus and any
amendments or supplements thereto, not including documents incorporated therein
by reference, and their review of the documents incorporated therein by
reference, but are without independent check or verification except as
specified.
(c) On the Commencement Date and, if called for by any agreement by
an Agent to purchase Notes as principal, on the corresponding Settlement Date,
each Agent shall have received a certificate, dated such Commencement Date or
Settlement Date, as the case may be, signed by an executive officer of the
Company to the effect that the representations and warranties of the Company
contained herein are true and correct as of such date and the Company has
complied with all of the agreements and satisfied all
16
17
of the conditions on its part to be performed or satisfied on or before such
date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any agreement by
an Agent to purchase Notes as principal, on the corresponding Settlement Date,
the Company's independent public accountants shall have furnished to each Agent
a letter or letters, dated as of the Commencement Date or such Settlement Date,
as the case may be, in form and substance reasonably satisfactory to such Agent
containing statements and information of the type ordinarily included in
accountant's "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus, as amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to each Agent such appropriate further information,
certificates and documents as such Agent may reasonably request.
5. ADDITIONAL AGREEMENTS OF THE COMPANY. A. Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on or other
terms of the Notes or for a change an Agent deems to be immaterial), the
Company will deliver or cause to be delivered forthwith to each Agent a
certificate signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to such Agent, of the same tenor as the certificate referred to in
Section 4(c) relating to the Registration Statement or the Prospectus as
amended and supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company shall furnish or cause to be furnished forthwith to each
Agent a written opinion of independent counsel for the Company. Any such
opinion shall be dated the date of such amendment or supplement, as the case
may be, shall be in a form reasonably satisfactory to each Agent and shall be
of the same tenor as the opinion referred to in Section 4(b)(i), but modified
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of such opinion,
counsel last furnishing such an opinion to an Agent may furnish to such Agent a
letter to the effect that such Agent may rely on such last
17
18
opinion to the same extent as though it were dated the date of such letter
(except that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information or
such amended or supplemental information is incorporated by reference in the
Registration Statement or the Prospectus, if so requested by an Agent, the
Company shall cause its independent public accountants forthwith to furnish
each Agent with a letter, dated the date of such amendment or supplement, as
the case may be, in form satisfactory to such Agent, of the same tenor as the
letter referred to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of such
letter.
6. INDEMNIFICATION AND CONTRIBUTION. B. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages or liabilities caused by any untrue statement or allegedly untrue
statement of a material fact contained in the Registration Statement or in any
amendment thereof or the Prospectus (as amended if the Company shall have
furnished any amendments or supplements thereto), 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 (i) any such untrue
statement or omission or allegedly untrue statement or omission based upon
information relating to such Agent furnished to the Company in writing by such
Agent expressly for use therein or (ii) the failure of such Agent to have
delivered a copy of the Prospectus, as most recently supplemented or amended,
as the case may be (excluding documents incorporated therein by reference) at
or prior to the confirmation of the sale of Notes, provided that such
Prospectus has been supplied by the Company to such Agent in advance of the
time needed by such Agent to accomplish such delivery.
(b) Each Agent 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 Securities Act or Section 20 of the
Exchange
18
19
Act to the same extent as the foregoing indemnity from the Company to the
Agents, but only with reference to (i) information relating to such Agent
furnished to the Company in writing by such Agent expressly for use in the
Registration Statement or the Prospectus or any amendments or supplements
thereto or (ii) the failure of such Agent to have delivered a copy of the
Prospectus, as most recently supplemented or amended, as the case may be
(excluding documents incorporated therein by reference) at or prior to the
confirmation of the sale of Notes, provided that such Prospectus has been
supplied by the Company to such Agent in advance of the time needed by the
Agent to accomplish such delivery.
(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) above, 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 proceedings
and shall pay the reasonable 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 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 reasonable fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx if both Agents are indemnified pursuant
to paragraph (a) above. In the case that the Agent other than Xxxxxx Xxxxxxx
is the indemnified party pursuant to paragraph (a) above, such firm shall be
designated in writing by such Agent. In the case of parties indemnified
pursuant to paragraph (b) above, such firm shall be designated in writing by
the Company. 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
19
20
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
third sentence 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 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 such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If 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 in
connection with any offering of Notes, 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 and each
Agent participating in the offering of the Notes that gave rise to such losses,
claims, damages or liabilities (a "Relevant Agent") from the offering of such
Notes or (ii) if the allocation provided by clause (i) 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 and each Relevant Agent 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 and each Relevant Agent in connection with the offering of such
Notes shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received
by the Company bear to the total discounts and commissions received by each
Relevant Agent in respect thereof. The relative fault of the Company and of
each Relevant Agent shall be determined by reference to, among other things,
whether the untrue or allegedly untrue statement of a material fact or the
omission or alleged omission to state a
20
21
material fact relates to information supplied by the Company or by such
Relevant Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
If more than one Agent is a Relevant Agent in respect to a proceeding, each
Relevant Agent's obligation to contribute pursuant to this Section 6 shall be
several, in the proportion that the principal amount of the Notes that are the
subject of such proceeding and that were offered and sold through such Relevant
Agent bears to the aggregate principal amount of the Notes that are the subject
of such proceeding, and not joint.
(e) The Company and each Agent agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by PRO
RATA allocation or by other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above 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, the Agents shall not be required to contribute
any amount in excess of the amount by which the total price at which the Notes
referred to in paragraph (d) above that were offered and sold to the public
through the Agents exceeds the amount of any damages that the Agents have
otherwise been required to pay by reason of such untrue or allegedly untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 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. POSITION OF THE AGENTS. In soliciting offers to purchase the
Notes, each Agent is acting solely as an agent for the Company, and not as a
principal, and does not assume any obligation towards or relationship of agency
or trust with any purchaser of Notes. Each Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company,
but such Agent shall not have any liability to the Company in the event any
such purchase is not consummated for any reason other than the gross negligence
of such Agent. If the Company shall default in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Company shall hold such
Agent harmless against any loss, claim,
21
22
damage or liability arising from or as a result of such default and shall, in
particular, pay to such Agent the commission such Agent would have received had
such sale been consummated.
8. TERMINATION. This Agreement may be terminated at any time either
by the Company or by an Agent upon the giving of written notice of such
termination to the other party hereto. Any Terms Agreement shall be subject to
termination in the absolute discretion of the Agent party thereto on the terms
set forth or incorporated by reference therein. The termination of this
Agreement shall not require termination of any agreement by an Agent to
purchase Notes as principal, and the termination of any such agreement shall
not require termination of this Agreement. If this Agreement is terminated,
the provisions of the third paragraph of Section 2(a), the last two sentences
of Section 3(b) and Sections 3(c), 3(g), 6, 7, 9 and 13 shall survive; PROVIDED
that if at the time of termination an offer to purchase Notes has been accepted
by the Company but the time of delivery to the purchaser or its agent of such
notes has not occurred, the provisions of Sections 2(c), 3(a), 3(b), 3(e),
3(f), 3(h) and 4 shall also survive. If any Terms Agreement is terminated, the
provisions of Sections 2(c), 3, 4, 6, 9 and 13 (which shall have been
incorporated by reference in such Terms Agreement) shall survive.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by the Agents to purchase Notes as
principal will remain in full force and effect, regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of the Agents or the Company or any of the officers, directors or controlling
persons referred to in Section 6 and delivery of and payment for the Notes.
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Xxxxxx Xxxxxxx, will be mailed,
delivered or telefaxed and confirmed to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Manager, Credit Department, with a copy to it
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Managing
Director, Short and Medium-Term Finance Department or, if sent to Salomon, will
be mailed, delivered or telefaxed and confirmed to it at Xxx Xxx Xxxx Xxxxx,
00xx Floor, New York, New York 10004, Attention: Medium-Term Note Group or, if
sent to the Company, will be mailed, delivered or telefaxed and confirmed to it
at 0000 X. XXXX Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxxxx.
22
23
11. SUCCESSORS. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
23
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and each of you.
Very truly yours,
XXXXXX CORPORATION
By:___________________________
Name:
Title:
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By:______________________________
Name:
Title:
SALOMON BROTHERS INC
By:______________________________
Name:
Title:
24
25
EXHIBIT A
XXXXXX CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
____________, 19__
Xxxxxx Corporation
0000 X. XXXX Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention:
Re: Distribution Agreement dated October 12, 1995 (the
"DISTRIBUTION AGREEMENT")
-------------------------------------------------------
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes: $
Fixed Rate Floating Rate
All Notes: Notes: Notes:
--------- ---------- -------------
Series:
Purchase price: Interest rate: Interest rate
basis:
Original issue date: Index maturity:
Price to public: Spread:
Settlement date and
time: Spread
multiplier:
Place of delivery: Initial interest
rate:
Stated maturity date: Initial interest
reset date:
Initial redemption Interest reset
date: dates:
Initial redemption Interest payment
percentage: dates:
A-1
26
Annual redemption: Maximum interest
percentage reduction rate:
Holder's optional Minimum interest
repayment date(s): rate:
Total amount of OID: Interest reset
period:
Original yield to Calculation
maturity: agent:
Applicability of
modified payment upon
acceleration:
If yes, state issue
price:
Initial accrual period
OID:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 8
through 13 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required: ___________________
[NAME OF AGENT]
By:___________________________
Name:
Title:
Accepted:
XXXXXX CORPORATION
By:______________________
Name:
Title:
A-2
