Exhibit 1.2
PRICING AGREEMENT
February 3, 2004
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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 February 3, 2004 (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
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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 four counterparts hereof (one for the Company and one for
the Designated Underwriter plus one for each counsel) and upon acceptance
hereof by the Designated Underwriter, 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.
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Very truly yours,
THE XXXXX COMPANY
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
Accepted as of the date hereof
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Managing Director
Page 4
SCHEDULE I
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Title of Designated Shares: Common Stock, par value $0.01
Number of Designated Shares:
Number of Firm Shares: 4,000,000
Maximum Number of Optional Shares: 600,000
Initial Offering Price to Public: $48.50 per share
Purchase Price by Underwriters: $48.30 per share
Form of Designated Shares: Definitive form to be made available for
checking by the Representative 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 or other same day
funds
Time of Delivery: 9:30 a.m. (New York City time), February 9, 2004
Closing Location: Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000
Name and Address of the Designated Underwriter: Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices, etc.: Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Syndicate Desk, 4th Floor
Fax: 000-000-0000
with a copy to: General Counsel, 36th Floor
Fax: 000-000-0000
Designated Underwriter's Counsel: Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
Additional Terms and Conditions: None
