EXHIBIT 1
XxXXXXXX'X CORPORATION
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Dear Sirs:
1. Introductory. XxXxxxxx'x Corporation (the "Company"), a
Delaware corporation, proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives", which term may refer to a single
Representative if so indicated on Schedule I hereto), the principal
amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an Indenture, dated as of March 1,
1987, as supplemented by Supplemental Indenture No. 23, to be dated as of
September 11, 1995 (collectively, the "Indenture"), between the Company
and First Fidelity Bank, National Association (formerly Fidelity Bank,
National Association), as trustee (the "Trustee"). (If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives",
as used herein, shall each be deemed to refer to such firm or firms.)
2. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
under the Securities Act of 1933, as amended (the "Act") File No.
33-50025, which has become effective, for the registration under the
Act of the Securities. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(i) under the Act and
complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424(b) under
the Act a supplement to the form of prospectus included in
registration statement File No. 33-50025 relating to the Securities
and the plan of distribution thereof. The registration statement
File No. 33-50025, including the exhibits thereto, is hereinafter
called the "Registration Statement"; the prospectus in the form in
which it appears in registration statement File No. 33-50025 is
hereinafter called the "Basic Prospectus"; and such supplemented
form of prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b)(2) (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus". Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424(b) is hereinafter called
the "Preliminary Final Prospectus". Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the date
of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, and deemed
to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424(b) under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of
any document incorporated by reference in the Registration
Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date (as hereinafter
defined), (i) the Registration Statement, as amended as of any such
time, the Final Prospectus, as amended or supplemented as of any
such time, and the Indenture will comply in all material respects
with the applicable requirements of the Act, the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the Exchange Act
and the respective rules and regulations thereunder and (ii) neither
the Registration Statement, as amended as of any such time, nor the
Final Prospectus, as amended or supplemented as of any such time,
will contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; provided,
however, that the Company makes no representations or warranties as
to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus.
(c) The financial statements of the Company and its
consolidated subsidiaries included in the Registration Statement
fairly present the financial condition of the Company and its
consolidated subsidiaries as of the dates indicated and the results
of operations and cash flow for the periods therein specified; and
said financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as otherwise stated
therein. As used herein, "consolidated subsidiaries" means each
subsidiary of the Company which is included in the consolidated
financial statements of the Company contained in its annual report
to shareholders for 1994 in accordance with the consolidation
policies set forth therein or which would have been so included if
it had been a subsidiary of the Company as of the date of such
consolidated financial statements, and each other subsidiary of the
Company which is included in consolidated financial statements of
the Company prepared from time to time thereafter.
(d) The Company and each of its Significant Subsidiaries
(herein defined to mean all subsidiaries which constitute
"significant subsidiaries", as such term is defined in
Section 1-02(v) of Regulation S-X, 17 CFR Part 210) have been duly
incorporated and are validly existing as corporations in good
standing under the laws of their respective states or jurisdictions
of incorporation, with power and authority to own their properties
and to conduct their businesses as described in the Basic Prospectus
and Final Prospectus. The Company and each of its Significant
Subsidiaries are duly qualified to do business as foreign
corporations and are in good standing in all states or jurisdictions
in which the ownership or lease of real property or the conduct of
business requires such qualifications, except where failure to be so
qualified cannot be reasonably expected to have a material adverse
effect on the financial condition of the Company and its
consolidated subsidiaries, considered as a whole. The Company owns
all of the issued and outstanding shares of capital stock of each of
the Significant Subsidiaries, directly or indirectly through one or
more Significant Subsidiaries (except McDonald's Australia Limited
and XxXxxxxx'x Property Company Limited, of which the Company
directly or indirectly owns a majority of the capital stock), and
all of such shares of the Significant Subsidiaries are owned free
and clear of any liens, charges and encumbrances.
(e) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus and
prior to the Closing Date hereinafter mentioned, except as set forth
or contemplated in the Final Prospectus, (1) neither the Company nor
any of its consolidated subsidiaries has entered into any
transaction not in the ordinary course of business which is material
to the Company and its consolidated subsidiaries, considered as a
whole, (2) there has been no material adverse change in the
properties, business, financial condition or results of operations
of the Company and its consolidated subsidiaries, considered as a
whole, and (3) no legal or governmental proceeding, which has or
will have materially affected the Company or any of its consolidated
subsidiaries, considered as a whole, or the transactions
contemplated by this Agreement, has been or will have been
instituted or threatened.
(f) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not (i) conflict with
or result in a breach of any of the terms and provisions of, or
constitute a default under, the Restated Certificate of
Incorporation or By-Laws of the Company as presently in effect or
(ii) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party, or
any order, rule or regulation applicable to the Company or any of
its Significant Subsidiaries of any court or of any federal or state
regulatory body or administrative agency or other governmental body
having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties, except such conflicts,
breaches or defaults referred to in this subclause (ii) which would
not materially and adversely affect the Company and its consolidated
subsidiaries considered as a whole.
(g) The Company and its consolidated subsidiaries hold good
and marketable title in fee simple, except as otherwise stated in
the Registration Statement, to all of the real property referred to
therein as being owned by them, free and clear of all liens and
encumbrances, except liens and encumbrances referred to in the
Registration Statement (or reflected in the financial statements
included therein) and liens and encumbrances which are not material
in the aggregate and do not materially interfere with the conduct of
the business of the Company and its consolidated subsidiaries,
considered as a whole; and the properties referred to in the
Registration Statement as held under lease by the Company and its
consolidated subsidiaries are held by them under valid and
enforceable leases with such exceptions as do not materially
interfere with the conduct of the business of the Company and its
consolidated subsidiaries, considered as a whole.
(h) The Company has a duly authorized and outstanding
capitalization substantially as set forth in the Registration
Statement; and the outstanding shares of the Common Stock of the
Company are duly authorized and issued, fully paid and
nonassessable.
(i) The Securities have been duly and validly authorized and,
when issued, authenticated and delivered against payment therefor in
accordance with the terms of the Indenture and this Agreement, will
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency and
other laws affecting the enforceability of creditors' rights and
general principles of equity, and will conform to the description
thereof contained in the Final Prospectus. The Indenture has been
duly authorized by the Company and will be a valid and legal
instrument enforceable in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy,
insolvency and other laws affecting the enforceability of creditors'
rights and general principles of equity. The Indenture is duly
qualified under the Trust Indenture Act.
(j) This Agreement has been duly authorized, executed and
delivered on behalf of the Company.
(k) No approval, authorization, consent or other order of any
public board or body (other than in connection or in compliance with
the provisions of the Act and the securities or blue sky laws of
various jurisdictions) is legally required for the sale of the
Securities.
(l) The Company and its consolidated subsidiaries, considered
as a whole, are conducting their businesses in substantial
compliance with all applicable laws, rules and regulations of the
jurisdictions in which they are conducting business.
(m) No default, if any, by the Company or any of its
consolidated subsidiaries under any lease, loan agreement,
franchise, governmental permit, or other agreement to which they are
parties is material to the Company and its consolidated
subsidiaries, considered as a whole.
3. Sale, Purchase and Delivery of Securities. On the basis of the
representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company hereby agrees to sell to the
Underwriters, severally and not jointly, and each Underwriter, severally
and not jointly (unless otherwise indicated on Schedule I hereto), agrees
to purchase from the Company, at the purchase price set forth in Schedule
I hereto, the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I
hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II
hereto, less the respective amounts of Contract Securities determined as
provided below. Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Securities to be
purchased pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially
in the form of Schedule III hereto but with such changes therein as the
Company may authorize or approve. The Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the Closing
Date, the percentage set forth in Schedule I hereto of the principal
amount of the Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions.
The Company will make Delayed Delivery Contracts in all cases where sales
of Contract Securities arranged by the Underwriters have been approved by
the Company but, except as the Company may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount
of Contract Securities may not exceed the maximum aggregate principal
amount set forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed
Delivery Contracts. The principal amount of Securities to be purchased by
each Underwriter as set forth in Schedule II hereto shall be reduced by
an amount which shall bear the same proportion to the total principal
amount of Contract Securities as the principal amount of Securities set
forth opposite the name of such Underwriter bears to the aggregate
principal amount set forth in Schedule II hereto, except to the extent
that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that
the total principal amount of Securities to be purchased by all
Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto, less the aggregate principal amount of Contract
Securities.
Delivery of and payment for the Underwriters' Securities shall be
made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Underwriters' Securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to
or upon the order of the Company by certified or official bank check or
checks payable in New York Clearinghouse (next day) funds, or, if so
indicated on Schedule I hereto, in Federal (same day) funds. Certificates
for the Underwriters' Securities shall be registered in such names and in
such denominations as the Representatives may request not less than two
full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior to the
Closing Date.
4. Covenants of the Company. The Company covenants and agrees with
the Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing, and the Company will not
file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be mailed or transmitted by
courier to the Commission for filing pursuant to Rule 424(b) by
first class certified or registered mail or overnight courier and
will cause the Final Prospectus to be filed with the Commission
pursuant to said Rule. The Company will promptly advise the
Representatives (i) when the Final Prospectus shall have been mailed
or transmitted by courier to the Commission for filing pursuant to
Rule 424(b), (ii) when any amendment to the Registration Statement
relating to the Securities shall have become effective, (iii) of any
request by the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Final Prospectus or
for 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 Securities 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 and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any amendments or
supplements to the Registration Statement or Final Prospectus which,
in the opinion of counsel for the Underwriters, may be necessary to
enable the several Underwriters to continue sale of the Securities,
and the Company will use its best efforts to cause any such
amendments to become effective and any such supplements to be filed
with the Commission and approved for use by the Underwriters as
promptly as possible. If at any time when a prospectus relating to
the Securities is required to be delivered under the Act, any event
relating to or affecting the Company occurs as a result of which the
Final 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 statement therein not misleading, or if
it is necessary at any time to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the first sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or which will effect such compliance. For
the purposes of this paragraph (b), the Company will furnish such
information with respect to itself as the Representatives may from
time to time reasonably request.
(c) As soon as practicable, but not later than 90 days after
the end of the 12-month period beginning at the end of the current
fiscal quarter of the Company, the Company will make generally
available to its security holders and you an earnings statement
covering a period of at least twelve months beginning not earlier
than said effective date which shall satisfy the provisions of
Section 11(a) of the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference therein) and each amendment thereto which
shall become effective on or prior to the Closing Date and, so long
as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing all documents relating
to the offering.
(e) The Company will furnish such information and execute such
instruments as may be required to qualify the Securities for sale
under the securities or blue sky laws of such jurisdictions within
the United States as you designate, will continue such
qualifications in effect so long as required for distribution and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors. The Company shall not be
required to register or qualify as a foreign corporation nor, except
as to matters and transactions relating to the offer and sale of the
Securities, consent to service of process in any jurisdiction.
(f) So long as the Securities shall be outstanding, the
Company will deliver to you (i) as soon as practicable after the end
of each fiscal year, consolidated balance sheets, statements of
income, retained earnings and cash flows of the Company and its
consolidated subsidiaries, as at the end of and for such year and
the last preceding year, all in reasonable detail and audited by
independent public accountants, (ii) as soon as practicable after
the end of each of the first three quarterly periods in each fiscal
year, unaudited consolidated balance sheets, statements of income,
retained earnings and cash flows of the Company and its consolidated
subsidiaries, as at the end of and for such period and for the
comparable period of the preceding year, all in reasonable detail,
(iii) as soon as available, all such proxy statements, financial
statements and reports as the Company shall send or make available
to its stockholders generally, and (iv) copies of all such annual,
periodic and current reports as the Company or any subsidiary shall
file with the Commission or any securities exchange.
(g) The Company will apply for the listing of the Securities
on the New York Stock Exchange, Inc. if requested to do so by you.
(h) The Company will pay all costs and expenses in connection
with the transactions herein contemplated, including, but not
limited to, the fees and disbursements of its counsel; the fees,
costs and expenses of preparing, printing and delivering the
Indenture and the Securities; the fees, costs and expenses of the
Trustee; accounting fees and disbursements; the costs and expenses
in connection with the qualification or exemption of the Securities
under state securities or blue sky laws, including filing fees and
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with any Blue Sky Memorandum
and Legal Investment Survey; the costs and expenses in connection
with the preparation, printing and filing of the Registration
Statement (including exhibits thereto) and the Basic, Preliminary
Final, and Final Prospectus, the preparation and printing of this
Agreement and the furnishing to the Underwriters of such copies of
each prospectus as the Underwriters may reasonably require; and the
fees of rating agencies. It is understood, however, that, except as
provided in this Section and in Sections 7 and 8 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel and any advertising expenses connected
with any offers they may make.
(i) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer
or sell, or announce the offering of, any debt securities (other
than up to $150,000,000 principal amount of the Company's medium
term notes to be issued pursuant to the Company's Registration
Statements on Form S-3 (File Nos. 33-42642 and 33-60939)) covered by
the Registration Statement or any other registration statement filed
under the Act.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the date
hereof, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date (including the
filing of any document incorporated by reference therein) and as of the
Closing Date, to the accuracy of the written statements of Company
officers made pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or shall be pending, or, to the knowledge of the Company,
shall be contemplated by the Commission.
(b) No event, nor any material adverse change in the condition
of the Company, financial or otherwise, shall have occurred, nor
shall any event exist which makes untrue or incorrect any material
statement or information contained in the Registration Statement or
the Final Prospectus or which is not reflected in the Registration
Statement or the Final Prospectus, but should be reflected therein
in order to make the statements or information contained therein not
misleading.
(c) You shall not have advised the Company that the
Registration Statement or any prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact which, in
the opinion of counsel for the Underwriters, is material, or omits
to state a fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
(d) You shall have received at the Closing Date (or prior
thereto as indicated) the following:
(i) An opinion from Xxxxxx Xxxxxxx, Senior Vice
President, General Counsel and Secretary, dated the Closing
Date, to the effect that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to own
its properties and conduct its business as described in the
Final Prospectus.
(B) The Indenture has been duly authorized, executed and
delivered by the Company and the Trustee, is duly qualified
under the Trust Indenture Act, and is a valid and legally
binding obligation of the Company enforceable in accordance
with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, moratorium and other laws
affecting the enforceability of creditors' rights and general
principles of equity.
(C) The Securities have been duly and validly authorized
by all necessary corporate action and, when duly executed on
behalf of the Company, duly authenticated by the Trustee or the
Trustee's authenticating agent, and duly delivered to the
several Underwriters against payment therefor in accordance
with the provisions of this Agreement, in the case of the
Underwriters' Securities, or to the purchasers thereof pursuant
to Delayed Delivery Contracts, in the case of Contract
Securities, will constitute legal, valid and binding
obligations of the Company enforceable in accordance with their
terms and entitled to all the benefits of the Indenture, except
as enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of
equity.
(D) The Indenture and the Securities conform as to legal
matters with the statements concerning them made in the Final
Prospectus, and such statements accurately set forth the
provisions thereof required to be set forth in the Final
Prospectus.
(E) This Agreement and any Delayed Delivery Contracts
have been validly authorized, executed and delivered on behalf
of the Company.
(F) The Registration Statement and any amendments thereto
have become effective under the Act, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement, as amended, has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
the Registration Statement, the Final Prospectus, and each
amendment thereof or supplement thereto (except for the
financial statements and other financial data 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 Exchange Act and the respective rules thereunder; such
counsel has no reason to believe that either the Registration
Statement or the Final Prospectus, or any such amendment or
supplement, contains any 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 not misleading; the
descriptions in the Registration Statement and Final Prospectus
of statutes, legal and governmental proceedings and contracts
and other documents are accurate and fairly present the
information required to be shown; and such counsel does not
know of any legal or governmental proceedings required to be
described in the Final Prospectus which are not described as
required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Final
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
(G) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will not result in a breach of any
of the terms and provisions of, or constitute a default under,
any indenture, mortgage, deed of trust or other agreement or
instrument to which, to the knowledge of such counsel, the
Company is a party, or the Restated Certificate of
Incorporation or By-Laws of the Company as presently in effect
or, to the knowledge of such counsel, any order, rule or
regulation applicable to the Company of any court or of any
federal or state regulatory body or administrative agency or
other governmental body having jurisdiction over the Company or
its properties.
(H) No authorization, approval, consent or other action
of any governmental authority or agency is required in
connection with the sale of the Securities as contemplated by
this Agreement or in any Delayed Delivery Contracts except such
as may be required under the Act or under state securities or
blue sky laws.
(I) Each of the Significant Subsidiaries of 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 power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and the Company and each of its Significant
Subsidiaries are qualified as foreign corporations in all
jurisdictions in which their ownership or lease of property
requires such qualification, except where such failure to be so
qualified cannot be reasonably expected to have a material
adverse effect on the financial condition of the Company and
its consolidated subsidiaries, considered as a whole.
(J) All issued and outstanding shares of capital stock of
each Significant Subsidiary (except McDonald's Deutschland,
Inc.) have been validly authorized and issued, are fully paid
and nonassessable and, to the best of the knowledge and belief
of such counsel after reasonable inquiry, are owned by the
Company directly or indirectly through one or more Significant
Subsidiaries (except McDonald's Australia Limited and
McDonald's Property Company Limited, of which the Company
directly or indirectly owns a majority of the capital stock),
free from any liens, claims or encumbrances.
(K) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will not result in a breach of any
of the terms and provisions of, or constitute a default under,
any indenture, mortgage, deed of trust or other agreement or
instrument to which, to the knowledge of such counsel, any of
the Company's Significant Subsidiaries is a party, or the
certificate of incorporation or by-laws of any of the Company's
Significant Subsidiaries as presently in effect or, to the
knowledge of such counsel, any order, rule or regulation
applicable to any of the Company's Significant Subsidiaries of
any court or of any federal or state regulatory body or
administrative agency or other governmental body having
jurisdiction over any of the Company's Significant Subsidiaries
or their properties.
(ii) Such opinion or opinions of counsel for the
Underwriters, dated the Closing Date, with respect to the
sufficiency of all corporate proceedings and other legal
matters relating to this Agreement, any Delayed Delivery
Contracts, the validity of the Securities, the Registration
Statement, the Final Prospectus and other related matters as
you may reasonably request. The Company shall have furnished to
such counsel such documents as they may reasonably request for
the purpose of enabling them to render their opinions. In
connection with such opinions, such counsel may rely on
representations or certificates of officers of the Company.
(iii) A certificate of the President or a Vice
President, and the Chief Financial Officer of the Company or
its Treasurer, dated the Closing Date, to the effect that:
(A) The representations and warranties of the Company in
Section 2 of this Agreement are true and correct as of the
Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(B) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or, to the
knowledge of the respective signers of the certificate, are
contemplated under the Act.
(C) The signers of the certificate have carefully
examined the Registration Statement and the Final Prospectus;
neither the Registration Statement, the Final Prospectus nor
any amendment or supplement thereto includes, as of the Closing
Date, any untrue statement of a material fact or omits, as of
the Closing Date, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; since the latest respective dates as of which
information is given in the Registration Statement, there has
been no material adverse change in the financial position,
business or results of operations of the Company and its
consolidated subsidiaries, considered as a whole, except as set
forth in or contemplated by the Final Prospectus; and since the
effective date of the Registration Statement, as amended, there
has occurred no event required to be set forth in the Final
Prospectus which has not been so set forth.
(iv) You shall have received a letter from Ernst & Young
LLP, dated the Closing Date, addressed to you substantially in
the form heretofore approved by you.
(e) Prior to the Closing Date, the Company shall have
furnished to you such further certificates and documents as you may
reasonably request.
(f) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any condition of the Underwriters' obligations hereunder required
to be satisfied prior to the Closing Date is not so satisfied, this
Agreement may be terminated by you by notice in writing or by telegram to
the Company.
In rendering the opinions described in Sections 5(d)(i) and (ii)
above, Xx. Xxxxxx Xxxxxxx and counsel for the Underwriters may, as to
matters involving the laws of any state other than Illinois, rely upon
the opinion or opinions of local counsel satisfactory to you, but in such
case a signed copy of each such opinion shall be furnished to you.
All such opinions (including opinions, if any, of local counsel),
certificates, letters and documents will be in compliance with the
provisions hereof only if they are in all material respects satisfactory
to you and to counsel for the Underwriters, as to which both you and such
counsel shall act reasonably. The Company will furnish you with such
conformed copies of such opinions, certificates, letters and documents as
you request.
You, on behalf of the Underwriters, may waive in writing the
compliance by the Company of any one or more of the foregoing conditions
or extend the time for their performance.
6. Representation of the Underwriters. Each of the Underwriters
severally represents and warrants to the Company that the information
furnished to the Company in writing by such Underwriter or by you
expressly for use in the preparation of the Registration Statement or the
Final Prospectus does not, and any amendments thereof or supplements
thereto thus furnished will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
7. Termination of Agreement. This Agreement may be terminated by
you on behalf of the Underwriters by notice in writing delivered to the
Company prior to the Closing Date if prior to such time there shall have
occurred any general suspension of trading in securities on the New York
Stock Exchange or there shall have been established by the New York Stock
Exchange or by the Commission or by any federal or New York State agency
or by the decision of any court any limitation on prices for such trading
or any restrictions on the distribution of securities, all to such a
degree as would in your judgment materially adversely affect the market
for the Securities, or if there shall have been such a drastic change in
general economic, political, or financial conditions as would in your
judgment materially adversely affect the market for the Securities.
If this Agreement shall be terminated by you because of any failure
on the part of the Company to comply with any of the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement, the
Company shall pay, in addition to the costs and expenses referred to in
Section 4(h), all reasonable out-of-pocket expenses incurred by the
Underwriters in contemplation of the performance by them of their
obligations hereunder, including but not limited to the reasonable fees
and disbursements of counsel for the Underwriters, the Underwriters'
reasonable printing and traveling expenses and postage, telegraph and
telephone charges relating directly to the offering contemplated by the
Final Prospectus, and also including advertising expenses incurred after
the effective date of the Registration Statement, it being understood
that such out-of-pocket expenses shall not include any compensation,
salaries or wages of the officers, partners or employees of any of the
Underwriters.
The Company shall not in any event be liable to the several
Underwriters for damages on account of loss of anticipated profits
arising out of the transactions contemplated by this Agreement.
8. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act or the Exchange
Act against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter or such controlling person may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement or any
amendment thereof, the Basic Prospectus, any Preliminary Final Prospectus
or the Final 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 and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company
will 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 therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the preparation thereof; and
provided, further, that the foregoing indemnification with respect to the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities, if such
Underwriter failed to send or give copies of the Final Prospectus, as
amended or supplemented, excluding documents incorporated therein by
reference, to such person at or prior to the written confirmation of the
sale of such 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 Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus
as amended or supplemented). This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each person, if any, who controls the Company
either within the meaning of the Act or the Exchange Act, each of
its directors and each of its officers who has signed the
Registration Statement, against any losses, claims, damages or
liabilities to which the Company, any such controlling person or any
such director or officer may become subject, under the Act, the
Exchange Act, or otherwise, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through
you specificially for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set
forth in the last paragraph of the cover page of the Final
Prospectus and under the heading "Underwriting" or "Plan of
Distribution" and, if Schedule I hereto provides for sale of
Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in the
Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in
the Final Prospectus, and you confirm that such statements are
correct. This indemnity agreement will be in addition to any
liability which each such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section, notify the
indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party
otherwise than under this Section. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in and, to the extent that it
may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or in addition to
those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon
receipt by such indemnified party of notice from the indemnifying
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8
for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed such counsel in connection
with the assumption of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more
than one separate counsel, approved by the Representatives of the
Underwriters in the case of subparagraph (a), representing the
indemnified parties under subparagraph (a) or (b), as the case may
be, who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; provided, further,
that, with respect to legal and other expenses incurred by an
indemnified party for which an indemnifying party shall be liable
hereunder, all such legal fees and expenses shall be reimbursed by
the indemnifying party as they are incurred.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) of this Section 8 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company on
grounds of policy or otherwise, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the
Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears
to the sum of such discount and the purchase price of the Securities
set forth in Schedule I hereto and the Company is responsible for
the balance; provided, however, that (i) in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter hereunder
and (ii) 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of the Act shall have the
same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case
to clause (i) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or
parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If the Underwriters' obligations to
purchase Securities pursuant to Section 3 hereof are several and not
joint and if any one or more Underwriters shall fail to purchase and pay
for any of the Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this
Agreement and unless otherwise provided in Schedule I hereto, the
remaining Underwriters shall be obligated severally to take up and pay
for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate
amount of Securities set opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in
the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations and warranties of the
Company and the several Underwriters, set forth in or made pursuant to
this Agreement, will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, the Company or any
of its officers or directors or any controlling person, and will survive
delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be
mailed, delivered or telefaxed and confirmed to the Company at Xxx
XxXxxxxx'x Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000, Attention of the Chief
Financial Officer, with a copy to the Controller.
12. Successors; Governing Law. This Agreement will inure to the
benefit of and be binding upon the parties hereto and the officers and
directors and controlling persons referred to in Section 8 hereof and
their respective successors, assigns, heirs, executors and
administrators, and no other persons will have any right or obligation
hereunder. The terms "successors" and "assigns" as used herein shall not
include a purchaser as such from any Underwriter. This Agreement shall be
governed by and construed in accordance with the internal laws of the
State of Illinois, without reference to choice of law doctrine.
13. Business Day. For purposes of this Agreement, "business day"
means any day on which the New York Stock Exchange is open for trading.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
XxXXXXXX'X CORPORATION
By:/s/ Xxxxxxxx X. Xxxxx
------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted by
us in Chicago, Illinois, acting on behalf of ourselves, the other
Representatives (if any), and the several Underwriters (if any) named in
Schedule II annexed hereto, as of the date first above written.
Xxxxxx Xxxxxxx & Co. Incorporated
By:/s/ May Xxxxx
------------------------
Date: September 5, 1995
SCHEDULE I
Underwriting Agreement dated September 5, 1995
Registration Statement No. 33-50025
Representatives: Xxxxxx Xxxxxxx & Co. Incorporated
Title, Purchase Price and Description of Securities:
Title: 6 5/8% Notes due September 1, 2006
Aggregate Principal Amount: $150,000,000
Price to Public: 99.643% of the principal amount of the Securities,
plus accrued interest from September 1, 1995
Purchase Price by Underwriter (include accrued interest or
amortization if applicable: $148,765,541.67 which represents
98.993% of the principal amount of the Securities, plus accrued
interest, from September 1, 1995
Maturity: September 1, 2005
Interest Rate: 6 5/8%
Interest Payment Dates: March 1 and September 1 of each year,
commencing March 1, 1996
Regular Record Dates: February 15 and August 15 next preceding
March 1 and September 1, respectively
Redemption Provisions: Redeemable in whole or in part at the option
of the Company at any time on or after September 1, 2002, at a
redemption price equal to 100% of the principal amount of the
Notes, together with accrued interest to the date of redemption.
Sinking Fund Provisions: None
Other Provisions: None
Sale Provisions under Section 3:
Obligation to Purchase is:
several and not joint / /
several and not joint; provided, however that, notwithstanding
the provisions of Section 9 of the Underwriting Agreement, the
Representative(s) listed above will, subject to the terms and
conditions hereof, purchase or cause to be purchased any
Securities which any defaulting Underwriter or Underwriters
have agreed but failed or refused to purchase pursuant to
Section 3 hereof /X/
joint and several / /
Payment to Be Made in:
New York Clearinghouse (next day) funds / /
or Federal (same day) funds /X/
Closing Date, Time and Location: September 11, 1995, 9:00 A.M. (Chicago
time); offices of Xxxxxxx, Carton & Xxxxxxx, Quaker Tower, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
Address for Notice to Representatives:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
SCHEDULE II
Underwriters Principal Amount
Xxxxxx Xxxxxxx & Co. Incorporated $ 5,000,000
Xxxxxxx, Sachs & Co. 25,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 25,000,000
X.X. Xxxxxx Securities Inc. 25,000,000
PaineWebber Incorporated 25,000,000
Salomon Brothers Inc 25,000,000
-------------
Total $150,000,000
-------------
