[Exhibit 1.2 to Form 8-K]
[Exhibit 1.5 to Registration Statement]
PRICING AGREEMENT
January 16, 2002
Deutsche Banc Alex. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The Xxxxx Company, a Maryland corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated January 16, 2002 (the "Underwriting Agreement"), to issue
and sell to you (the "Designated Underwriter") the Shares specified in
Schedule I hereto (the "Designated Shares", consisting of Firm Shares and
any Optional Shares the Designated Underwriter may elect to purchase). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein, and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus relating to the Designated Shares
which are the subject of this Pricing Agreement. Each reference to the
Representative herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to the Designated
Underwriter. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the
form heretofore delivered to the Designated Underwriter is now proposed to
be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company
agrees to issue and sell to the Designated Underwriter, and the Designated
Underwriter agrees to purchase from the Company, at the time and place and
at the purchase price to the Designated Underwriter set forth in Schedule I
hereto, the number of Firm Shares set forth in Schedule I hereto and (b) in
the event and to the extent that the Designated Underwriter shall exercise
the election to purchase Optional Shares, as provided below, the Company
agrees to issue and sell to the Designated Underwriter, and the Designated
Underwriter agrees to purchase from the Company at the purchase price to
the Designated Underwriter set forth in Schedule I hereto that portion of
the number of Optional Shares as to which such election shall have been
exercised.
The Company hereby grants to the Designated Underwriter the right to
purchase, from time to time, at its election up to the number of Optional
Shares set forth in Schedule I hereto on the terms referred to in the
paragraph above for the sole purpose of covering over-allotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may
be exercised by written notice from the Designated Underwriter to the
Company given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be
delivered, as determined by the Designated Underwriter, but in no event
earlier than the First Time of Delivery or, unless the Designated
Underwriter and the Company otherwise agree in writing, no earlier than two
or later than ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and one for your counterparts hereof,
and upon acceptance hereof by you this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein
by reference, shall constitute a binding agreement between the Designated
Underwriter and the Company.
Very truly yours,
THE XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name:
Title:
Accepted as of the date hereof:
Deutsche Banc Alex. Xxxxx Inc.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name:
Title: Managing Director
By: /s/ Xxxxxxx X. X'Xxxx
--------------------------------
Name: Xxxxxxx X. X'Xxxx
Title: Director
SCHEDULE I
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Title of Designated Shares: Common Stock, par value $0.01
Number of Designated Shares:
Number of Firm Shares: 14,500,000
Maximum Number of Optional Shares: 2,175,000
Offering Price to Public: The Designated Underwriter will offer the
Designated Shares from time to time for sale in one or more transactions in
the over-the-counter market, at market prices prevailing at the time of
sale, at prices relating to prevailing market prices, or at negotiated
prices.
Purchase Price by Designated Underwriter: $27.40 per Share
Form of Designated Shares: Definitive form, to be made available for
checking at least twenty-four hours prior to the Time of Delivery at the
office of The Depository Trust Company or its designated custodian
Specified Funds for Payment of Purchase Price: Federal (same day) funds
Time of Delivery: 9:30 a.m. (New York City time), January 22, 2002
Closing Location: Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000
Names and Address of Designated Underwriter: Deutsche Banc Alex. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices, etc.: Deutsche Banc Alex. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Additional Terms and Conditions: None
