Exhibit 1.1
XXXXXX INTERNATIONAL INC.
Securities
UNDERWRITING AGREEMENT
________________, 2002
Xxxxxx International Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
The underwriter or underwriters named in Schedule I hereto (the
"Underwriters"), acting through the firm or firms named in Schedule I-A hereto
as representatives (the "Representatives"), understand that Xxxxxx International
Inc., a Delaware corporation (the "Company"), proposes to issue and sell
$__________ aggregate principal amount of the Company's securities (the
"Securities"), registered on Registration Statement No. 333-________ under the
Securities Act of 1933, as amended. The Securities are to be issued under the
indenture designated in Schedule II hereto (the "Indenture"), between the
Company and the trustee designated in such Schedule II. Subject to the terms and
conditions set forth herein or incorporated by reference herein and referred to
below, the Company hereby agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, the principal amount of such Securities set forth opposite the name of
such Underwriter in such Schedule I at the Purchase Price to Underwriters set
forth in Schedule II hereto. If the firm or firms named in Schedule I-A hereto
include only the firm or firms named as Underwriters in Schedule I hereto, the
terms "Underwriters" and "Representatives" shall each be deemed to refer to such
firm or firms.
The Underwriters will pay for such Securities upon delivery thereof at
the Closing Location and Closing Time set forth in Schedule II hereto.
The Securities shall have the terms set forth in Schedule II
hereto.
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This Underwriting Agreement consists of the special provisions set
forth herein or in the schedules hereto (the "Special Provisions") and such of
the provisions contained in the document entitled Xxxxxx International Inc. Debt
Securities Underwriting Agreement 2002 Standard Provisions (the "Standard
Provisions") as are herein incorporated by reference. A copy of the Standard
Provisions was or will be filed as an exhibit to or incorporated by reference
into the Registration Statement. Unless otherwise provided in Schedule II
hereto, the Standard Provisions are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Underwriting Agreement to the
same extent as if such provisions had been set forth in full herein. References
herein and therein to numbered sections of this Underwriting Agreement shall
mean the numbered sections of the Standard Provisions.
Please confirm your agreement by (a) having an authorized officer sign
a copy of this Underwriting Agreement in the space set forth below, (b)
returning the signed copy to us and (c) in addition, having an authorized
officer send us no later than 8:00 P.M., Chicago time, on the date hereof, by
wire, telex, facsimile transmission or other written means, the following
message:
"We have entered into the Underwriting Agreement dated April 23, 2002
relating to the Offered Securities referred to therein by signing a copy of the
Underwriting Agreement and returning the same or depositing the same in the mail
to you."
Very truly yours,
By: [Underwriter]
/s/
-----------------------------
For itself and as Representative of
the other Underwriters named above
ACCEPTED:
XXXXXX INTERNATIONAL INC.
By:
---------------------------
Senior Vice President and
Chief Financial Officer
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SCHEDULE I
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SCHEDULE I-A
Representative(s)
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SCHEDULE II
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XXXXXX INTERNATIONAL INC.
Debt Securities
UNDERWRITING AGREEMENT
2002 STANDARD PROVISIONS
(Incorporated By Reference)
From time to time Xxxxxx International Inc., a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated debt securities to the several underwriters named
therein. The standard provisions set forth herein (the "Standard Provisions")
may be incorporated by reference in any such underwriting agreement. Such
underwriting agreement, which shall consist of the special provisions (the
"Special Provisions") set forth in the part of the Underwriting Agreement to be
executed by the parties thereto (and accompanying schedules) and the Standard
Provisions incorporated therein by reference, is herein called the "Underwriting
Agreement" or this "Agreement." Unless otherwise provided, terms defined in the
Special Provisions are used in the Standard Provisions as so defined. The
Underwriting Agreement shall be in the form of an executed writing (which may be
in counterparts) and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. As used herein, the term
"Execution Date" shall mean the date set forth on the first page of the Special
Provisions.
The Company proposes to issue and sell up to $2,000,000,000 aggregate
principal amount of its securities (the "Securities") in one or more offerings
on terms determined at or about the time of sale. The Securities to be sold
pursuant to the Underwriting Agreement (the "Offered Securities") will be issued
under an indenture dated as of April 26, 2002, as supplemented (the
"Indenture"), between the Company and Bank One Trust Company, N.A., as trustee
(the "Trustee"). Each issue of Securities may vary as to specific designation,
aggregate principal amount, maturity date, currency of payment, interest rate or
rates and timing of payments thereof, redemption provisions and sinking fund
requirements, if any, and any other variable terms which the Indenture
contemplates may be set forth in the Securities as issued from time to time.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-____________),
including a prospectus relating to the Securities, which relate to the offering
from time to time in accordance with Rule 415 under the Securities Act of 1933
(the "1933 Act") of up to $2,000,000,000 aggregate principal amount of
Securities, and has filed amendments thereto as may have been required to the
Execution Date. Such registration statement, as amended, has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). The term "Registration Statement"
means such registration statement, including all exhibits thereto but excluding
Form T-1 (as herein described), as amended to the
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Execution Date. The term "Basic Prospectus" means the prospectus included in
such registration statement, as amended to the Execution Date. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the Offered Securities, in the definitive form filed or
to be filed pursuant to Rule 424(b) under the 1933 Act; and the term
"Preliminary Prospectus" means the Basic Prospectus together with a preliminary
prospectus supplement specifically relating to the Offered Securities. Any
reference herein to the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents or portions
thereof incorporated by reference therein pursuant to the applicable form under
the 1933 Act; and any reference to any amendment or supplement to the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents or portions thereof filed after the Execution
Date under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
so incorporated by reference. Notwithstanding the foregoing, any statement
contained in a document incorporated or deemed to be incorporated by reference
in the Registration Statement and the Prospectus which is modified by a
statement contained in the Prospectus or in any other subsequently filed
document which is or is deemed to be incorporated by reference in the Prospectus
shall be deemed to constitute part of the Registration Statement and the
Prospectus only as so modified, and any statement contained in a document
incorporated or deemed to be incorporated by reference in the Registration
Statement and the Prospectus which is superseded or replaced by a statement
contained in the Prospectus or in any other subsequently filed document which is
or is deemed to be incorporated by reference in the Prospectus shall be deemed
not to constitute a part of the Registration Statement and the Prospectus. The
term "Underwriters' Securities" means the Offered Securities to be purchased by
the Underwriters hereunder. The term "Contract Securities" means the Offered
Securities, if any, to be purchased pursuant to the Delayed Delivery Contracts
referred to herein.
Section 1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as follows:
(a) At the time the Prospectus is filed or mailed for filing with the
Commission pursuant to Section 3(a), and at the time any further amendments and
supplements to the Prospectus become effective or are filed or mailed for filing
with the Commission, as the case may be, during the time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the Offered
Securities, (i) the Registration Statement and the Prospectus will comply in all
material respects with the applicable requirements of the 1933 Act, the rules
and regulations thereunder (the "Regulations"), the 1934 Act and the 1939 Act,
(ii) the Registration Statement will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) the
Prospectus will not contain an 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; provided,
however, that the representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter expressly for use in the Registration
Statement or Prospectus or to information which shall constitute the Statement
of Eligibility and Qualification under the 1939 Act (Form T-1) of the Trustee
under the Indenture.
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(b) The accountants who certified the financial statements and
schedules included in the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and its subsidiaries
as required by the 1933 Act and the Regulations.
(c) The financial statements included in the Registration Statement and
the Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of their
operations for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved, except as indicated therein; and
the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby, (i) there has not been any material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings or the ability to continue to
conduct business in the usual and ordinary course of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business and (ii) there has not been any material transaction
entered into by the Company or any of its subsidiaries other than transactions
in the ordinary course of business or transactions which are not material in
relation to the Company and its subsidiaries considered as one enterprise.
(e) 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, lease and operate its properties and
conduct its business as described in the Registration Statement; and the Company
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would
materially adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as one
enterprise.
(f) Each active consolidated subsidiary of the Company included in the
financial statements included in the Registration Statement and the Prospectus
is a corporation duly organized and existing and in good standing under the laws
of the jurisdiction of its incorporation, with corporate power and authority to
own, lease and operate its properties and conduct its business as now being
conducted and is duly qualified as a foreign corporation to transact business
and is in good standing except as to subsidiaries or jurisdictions as to which
the failure so to qualify would not materially adversely affect the conduct of
the business, operations, financial condition or income of the Company and its
subsidiaries considered as one enterprise; all of the issued and outstanding
capital stock of each such subsidiary has been duly and validly issued and is
fully paid and nonassessable; and all of such stock owned by the Company,
directly or through subsidiaries, is owned free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity.
(g) Neither the Company nor any of its subsidiaries is in violation of
its charter or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any
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contract, indenture, mortgage, loan agreement or lease to which it or any of
them is a party or by which it or any of them or their properties is bound; and
the execution and delivery of this Agreement and the Delayed Delivery Contracts
and the Indenture, the incurrence of the obligations set forth herein and
therein and the consummation of the transactions contemplated herein and therein
have been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, the charter or
by-laws of the Company or any bond, debenture, note or other evidence of
indebtedness or any contract, indenture, mortgage, loan agreement or lease to
which the Company or any of its subsidiaries is a party or by which it or any of
them is bound or any law, administrative regulation or administrative or court
decree.
(h) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patent rights or licenses or other rights to use
patent rights, inventions, trademarks, service marks, trade names and copyrights
necessary to conduct the business now operated by them, provided that the loss
of any such rights, either alone or in the aggregate, which does not materially
adversely affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one enterprise shall
not be considered a violation of this representation. Neither the Company nor
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any patent, patent rights,
inventions, trade marks, service marks, trade names or copyrights which, either
alone or in the aggregate, might reasonably be expected to materially adversely
affect the conduct of the business, operations, financial condition or income of
the Company and its subsidiaries considered as one enterprise.
(i) Except as set forth in the Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries, which, either singly or in the
aggregate, might reasonably be expected to materially adversely affect the
conduct of the business, operations, financial condition or income of the
Company and its subsidiaries considered as one enterprise or the consummation of
this Agreement.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
(k) The Company is not required to be registered under the Investment
Company Act of 1940, as amended.
(l) The Offered Securities are in the form contemplated by the
Indenture, have been duly and validly authorized by all necessary corporate
action and, when executed and authenticated as specified in the Indenture and
delivered against payment pursuant to the Agreement will be valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights or by general equity
principles.
Any certificate signed by any officer of the Company and delivered to
any Underwriter or counsel for the Underwriters in connection with an offering
of Offered Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each
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Underwriter.
Section 2. Purchase, Sale and Delivery. The Company is advised by the
Representatives that the Underwriters propose to make a public offering of their
respective portions of the Underwriters' Securities as soon after this Agreement
is entered into as in the Representatives' judgment is advisable. The terms of
the public offering of the Underwriters' Securities are set forth in the
Prospectus.
Payment of the purchase price for, and delivery of, the Underwriters'
Securities shall be made in the funds, at the place or places, on the date and
at the time (unless postponed in accordance with the provisions of Section 10)
specified in Schedule II to the Special Provisions or at such other time or
place as shall be agreed upon by the Representatives and the Company (such time
and date being referred to as the "Closing Time"). Except as otherwise specified
in Schedule II to the Special Provisions, payment shall be made to the Company
by certified or official bank check or checks payable to the order of the
Company against delivery to the Representatives for the respective accounts of
the Underwriters of the Underwriters' Securities to be purchased by them. Such
Underwriters' Securities shall be in such denominations and registered in such
names as the Representatives may request in writing at least two business days
prior to the Closing Time. Such Underwriters' Securities, which may be in
temporary form, will be made available for examination and packaging by the
Representatives in New York City or at such other place as shall be agreed upon
by the Representatives and the Company on or before the first business day prior
to the Closing Time.
If so provided in Schedule II to the Special Provisions, the
Underwriters may solicit offers to purchase Contract Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Annex I hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to the Representatives at Closing Time, for the accounts of
the Underwriters, the fee set forth in Schedule II to the Special Provisions in
respect of the principal amount of Contract Securities. Any Delayed Delivery
Contracts are to be with institutional investors of the types set forth in the
Prospectus. At Closing Time, the Company will enter into Delayed Delivery
Contracts (each for not less than the minimum principal amount of Contract
Securities per Delayed Delivery Contract specified in Schedule II to the Special
Provisions) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Contract Securities in excess of that specified in Schedule II to the
Special Provisions. The Underwriters will not have any responsibility for the
validity or performance of Delayed Delivery Contracts.
The Representatives will submit to the Company, at least three business
days prior to the Closing Time, the names of any institutional investors with
which it is proposed that the Company will enter into Delayed Delivery Contracts
and the principal amount of Contract Securities to be purchased by each of them,
and the Company will advise the Representatives at least two business days prior
to Closing Time of the names of the institutions with which the making of
Delayed Delivery Contracts is approved by the Company and the principal amount
of Contract Securities to be covered by each such Delayed Delivery Contract.
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The principal amount of Offered Securities agreed to be purchased by
the respective Underwriters as set forth in Schedule I to the Special Provisions
shall be reduced by the principal amount of Offered Securities covered by
Delayed Delivery Contracts, as to each Underwriter as set forth in a written
notice delivered by the Representatives to the Company; provided, however, that
the total principal amount of Offered Securities to be purchased by all
Underwriters shall be the total amount of Offered Securities set forth in
Schedule I to the Special Provisions, less the principal amount of Offered
Securities covered by Delayed Delivery Contracts.
Section 3. Covenants of the Company. The Company covenants with each
Underwriter that:
(a) Immediately following the execution of this Agreement, the Company
will prepare a supplement to the Basic Prospectus setting forth the principal
amount of the Offered Securities and their terms not otherwise specified in the
Indenture, the names of the Underwriters and the principal amount of Offered
Securities which each severally has agreed to purchase, the names of the
Representatives, the price at which the Offered Securities are to be purchased
by the Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, any delayed delivery arrangements,
and such other information as the Representatives and the Company deem
appropriate in connection with the offering of the Offered Securities. The
Company will promptly transmit copies of the Prospectus to the Commission for
filing pursuant to Rule 424(b) of the Regulations and will furnish to the
Underwriters as many copies of the Prospectus as the Representatives shall
reasonably request.
(b) If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it shall be necessary,
in the opinion of either such counsel, at any such time to amend or supplement
the Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the Regulations, the Company will promptly
prepare and file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1934 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
comply with such requirements.
(c) The Company will make generally available to its security holders
as soon as practicable an earnings statement (in form complying with the
provisions of Section 11(a) of the 1933 Act, which need not be certified by
independent certified public accountants unless required by the 1933 Act or the
Regulations) covering a twelve-month period beginning not later than the first
day of the Company's fiscal quarter next following the Execution Date.
(d) During the period when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the Company
will give the Representatives notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or otherwise, will
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furnish the Representatives with copies of any such amendment or supplement or
other documents proposed to be filed a reasonable time in advance of filing, and
will not file any such amendment or supplement or other documents in a form in
which the Representatives or counsel for the Underwriters shall reasonably
object.
(e) During the period when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the Company
will notify the Representatives immediately, and confirm the notice in writing,
(i) of the effectiveness of any amendment to the Registration Statement, (ii) of
the mailing or the delivery to the Commission for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which is
incorporated in the Prospectus by reference, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement or the
Prospectus, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has previously delivered to Sidley Xxxxxx Xxxxx & Xxxx,
counsel for the Underwriters, signed and conformed copies of the Registration
Statement and of each amendment thereto filed prior to the date of this
Agreement (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) and will also
deliver to Sidley Xxxxxx Xxxxx & Xxxx a copy of each amendment to the
Registration Statement filed after the date of this Agreement.
(g) The Company will endeavor, in cooperation with the Representatives,
to qualify the Offered Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Representatives may designate, and, in cooperation with the Representatives,
will maintain such qualifications in effect for as long as may be required for
the distribution of the Offered Securities; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not
otherwise required to be so qualified. The Company will, upon notice, file such
statements and reports as may be required by the laws of each jurisdiction in
which the Offered Securities have been qualified as above provided.
(h) The Company, during the period when a prospectus is required to be
delivered under the 1933 Act in connection with the sale of the Offered
Securities, will file promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Between the Execution Date and termination of any price
restrictions on the sale of the Offered Securities or Closing Time, whichever is
later, the Company will not, without the prior consent of the Representatives,
offer or sell, or enter into any agreement to sell, any debt securities of the
Company with a maturity of more than one year, other than such debt securities
which the Company has advised the Representatives in writing prior to the
Execution Date that it
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intends to sell or agree to sell during such period.
Section 4. Conditions to Underwriters' Obligations. The obligations of
the Underwriters to purchase the Underwriters' Securities are subject to the
accuracy of the representations and warranties on the part of the Company herein
contained, to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
by the Company of all of its covenants and other obligations hereunder and to
the following further conditions:
(a) At the Closing Time (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) the rating
assigned by Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc. to
any debt securities or preferred stock of the Company as of the Execution Date
shall not have been lowered since that date, or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities or preferred stock of the Company (other than the announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) and (iii) there shall not have come to the
attention of the Representatives any facts that would reasonably cause the
Representatives to believe that the Prospectus, at the time it was required to
be delivered to a purchaser of the Offered Securities, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
such time, not misleading.
(b) At the Closing Time the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time, of Xxxxxx
X. Xxxxxxxx, Xx., Senior Vice President and General Counsel of the
Company, in form and substance satisfactory to the Representatives, 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.
(B) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement.
(C) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction
in which the failure so to qualify would materially adversely
affect the conduct of the business, operations, financial condition
or income of the Company and its subsidiaries considered as one
enterprise.
(D) Each of Xxxxxx Healthcare Corporation, a Delaware
corporation, and Xxxxxx World Trade Corporation, a Delaware
corporation, all of which are wholly-owned by the Company and
which,
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together with the Company, owned more than 80% of the consolidated
assets of the Company and its subsidiaries as of December 31, 2001
and contributed at least 80% of the consolidated income from
continuing operations of the Company and its subsidiaries for the
year ended December 31, 2001 (each such calculation with respect to
Xxxxxx World Trade Corporation having been done on a consolidated
basis with its subsidiaries) has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and conduct its
business as now being conducted and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding capital stock
of each such subsidiary has been duly authorized and validly issued
and is fully paid and non-assessable; and all of such stock owned
by the Company, directly or through subsidiaries, is owned free and
clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(E) Except as set forth in the Prospectus, there is no
action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or to such
counsel's knowledge threatened against or affecting, the Company or
any of its subsidiaries which, either singly or in the aggregate,
might reasonably be expected to materially adversely affect the
conduct of the business, operations, financial condition or income
of the Company and its subsidiaries considered as one enterprise or
the consummation of this Agreement.
(F) This Agreement and the Delayed Delivery Contracts, if
any, have been duly authorized, executed and delivered by the
Company.
(G) The Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the valid and
binding agreement of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles.
(H) The Offered Securities are in the form contemplated by
the Indenture, have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated as
specified in the Indenture and delivered against payment pursuant
to this Agreement or Delayed Delivery Contracts, if any, will be
valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other
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laws relating to or affecting enforcement of creditors' rights or
by general equity principles, and will be entitled to the benefits
of the Indenture.
(I) The descriptions of the Indenture and the Offered
Securities set forth in the Prospectus are accurate and constitute
fair summaries of such documents and instruments.
(J) The Indenture is qualified under the 1939 Act.
(K) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(L) The Registration Statement (other than the financial
statements and other financial data included therein, as to which
such counsel need not express any opinion and other than the
documents incorporated therein by reference) complies as to form in
all material respects with the requirements of the 1933 Act, the
1939 Act and the Regulations, and although such counsel is not
passing upon, and does not assume responsibility for the accuracy,
completeness or fairness of statements contained in the
Registration Statement or Prospectus nor make any representation
that he has independently verified the accuracy, completeness or
fairness of such statements (except as set forth in clause (I)
above) nor verified the computation or compilation of financial
statements and other financial data, nothing has come to such
counsel's attention that would lead him to believe that the
Registration Statement (including the documents incorporated
therein by reference), at the time it became effective, or if an
amendment to the Registration Statement, an annual report on Form
10-K or any other document filed by the Company under the 1934 Act
and incorporated by reference in the Registration Statement has
been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time of
the most recent such filing, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus (including the documents
incorporated therein by reference), as amended or supplemented at
Closing Time, contains an untrue statement of a material fact or
omits 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.
(M) Each document, if any, filed pursuant to the 1934 Act
(other than the financial statements and other financial data
included therein, as to which such counsel need not express any
opinion) and incorporated by reference in the Prospectus complied
when so filed as to form in all material respects with the 1934 Act
and the rules and regulations thereunder.
62
(N) No consent, approval, authorization or order of any
court or governmental authority or agency is required in connection
with the sale of the Offered Securities, except such as may be
required under the 1933 Act, the 1939 Act and state securities
laws; and the execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated
herein and therein will not conflict with or constitute a breach
of, or default under, or result in any violation of the provisions
of, the charter or by-laws of the Company or, to the best of such
counsel's knowledge, any bond, debenture, note or other evidence of
indebtedness, or any contract, indenture, mortgage, loan agreement
or lease to which the Company or any of its subsidiaries is a party
or by which it or any of them is bound, nor will such action result
in any violation of the provisions of any law, administrative
regulation or administrative or court decree.
(ii) The favorable opinion or opinions, dated as of the applicable
Closing Time, of ___________________, counsel for the Underwriters,
with respect to the matters set forth in (A) and (F) to (L), inclusive,
of subsection (b)(i) of this Section.
(c) At the Closing Time there shall not have been, since the Execution
Date or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one enterprise, or
in the earnings or the ability to continue to conduct business in the usual and
ordinary course of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company, dated as of the Closing Time, to the effect that there
has been no such material adverse change and to the effect that the
representations and warranties of the Company contained in Section 1 are true
and correct with the same force and effect as though expressly made at the
Closing Time.
(d) The Representatives shall have received from PricewaterhouseCoopers
LLP a letter, dated as of the Closing Time, covering periods up to a date not
more than three business days preceding the date of the letter, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the 1933 Act and the applicable
published rules and regulations thereunder and stating in effect (i) that in
their opinion the consolidated financial statements of the Company and its
subsidiaries examined by them included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the accounting requirements of the 1934 Act and the published
rules and regulations thereunder applicable to financial statements included or
incorporated in annual reports on Form 00-X xxxxx xxx 0000 Xxx, (xx) that, based
on limited procedures not constituting an examination in accordance with
generally accepted auditing standards, consisting of a reading of the unaudited
consolidated financial data of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus,
reading of the minutes of the board of directors and committees of the board of
directors of the Company since December 31, 1991, as set forth in the minute
books through a
63
specified date not more than three business days before the date of such letter
and inquiries of certain officials of the Company who have responsibility for
financial and accounting matters, nothing came to their attention that caused
them to believe: (A) that such unaudited consolidated financial data do not
comply as to form in all material respects with the accounting requirements of
the 1934 Act and the published rules and regulations thereunder applicable to
unaudited consolidated financial data or that such unaudited consolidated
financial data are not presented on a basis substantially consistent with that
of the consolidated financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus and covered by their opinion and (B) that during the period from the
date of the most recent consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus to a specified date not more than three business days prior
to the date of such letter there was any change in the consolidated capital
stock (other than changes occurring as a result of the exercise of outstanding
stock options, conversion rights or rights under employee stock purchase plans,
grants under any other employee benefit plans, or conversions of preferred stock
or debentures or in connection with any dividend reinvestment plan of the
Company) or consolidated capitalized lease obligations or consolidated long-term
debt (other than through conversions or scheduled payments or differences due to
conversion of foreign currency-denominated debt into United States dollars) of
the Company or any decreases in consolidated stockholders' equity of the Company
as compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus, or any decrease, as compared with the corresponding period in the
preceding year, in net sales or total operating income, in each case from
continuing operations, and net income of the Company and its subsidiaries on a
consolidated basis, or, at the date of the latest available balance sheet read
by them, any decreases in consolidated net current assets (working capital) as
compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus, except in all instances for changes, increases or decreases (1)
which have been the subject of prior registration statements filed with the
Securities and Exchange Commission, (2) which have been disclosed in writing to
either the Representatives or to Sidley Xxxxxx Xxxxx & Xxxx, counsel for the
Underwriters, prior to the Execution Date or (3) which the Registration
Statement and the Prospectus (including the documents incorporated therein by
reference) disclose have occurred or may occur and (iii) that certain amounts,
percentages and financial information included or incorporated by reference in
the Registration Statement and the Prospectus which have been specified by the
Representatives and have been obtained or derived from the general accounting
records of the Company and its subsidiaries are in agreement with such
accounting records or computations made therefrom, or in the case of amounts,
percentages and financial information pertaining to periods prior to the year
ended December 31, 1985 are in agreement with the audited financial statements
or computations made therefrom with respect to such periods. Such letter shall
also cover such other matters as the Representatives may reasonably request.
(e) Such other closing conditions, if any, as are set forth in the
Special Provisions.
(f) At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Securities as herein contemplated and related
64
proceedings or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
If any condition specified in this Agreement shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
Section 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(a) the printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and all amendments thereto, and the typing and
duplicating or printing of this Agreement and any agreement among the
Underwriters, (b) the preparation, issuance and delivery of the Offered
Securities to the Underwriters, (c) the fees and disbursements of the Company's
counsel and accountants, (d) the qualification of the Offered Securities under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the reasonable fee and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and Legal Investment Survey, (e) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto, and of any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto, (f) the
printing and delivery to the Underwriters of copies of the Indenture and any
Blue Sky Survey and Legal Investment Survey, (g) the fees of rating agencies and
(h) the fees and expenses, if any, incurred in connection with the listing of
the Offered Securities on the New York Stock Exchange.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 4 or Section 9(i), the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the
65
circumstances under which they were made, not misleading; provided,
however, (A) that the Company will not be liable in any such case to
the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by
any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto),
or contained in that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification under the
1939 Act (Form T-1) of the Trustee under the Indenture; and provided,
further, (B) that the foregoing indemnification, to the extent it
relates to any actual or alleged untrue statement or omission made in
or from any Preliminary Prospectus but eliminated or remedied in the
Prospectus, shall not inure to the benefit of any Underwriter or any
person who controls such Underwriter from whom the person asserting
such untrue statement or omission purchased Offered Securities if a
copy of the Prospectus (excluding documents incorporated therein by
reference) was not sent or given to such person at or prior to the
written confirmation of the sale of such Offered Securities to such
person and was required to be delivered by such Underwriter under the
1933 Act, if the Company has previously furnished copies thereof to
such Underwriter;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement
66
thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder; failure of an indemnified party to give such notice within a
reasonable time after the commencement of such action shall relieve the
indemnifying party of all liability on account of this indemnity agreement, but
failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of such Underwriters in such proportions
as will reflect the relative benefits from the offering of the Offered
Securities received by the Company on the one hand and by such Underwriters on
the other hand. If the allocation provided by the immediately preceding sentence
is not permitted by applicable law, or if the indemnified party failed to give
the notice required under Section 6(c), then the Company and the Underwriters
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and one or more of such Underwriters in such proportions as are
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages and expenses, as well as any other relevant
equitable considerations. The relative benefits shall be deemed to be such that
the Underwriters shall be responsible for that portion of the aggregate losses,
liabilities, claims, damages and expenses represented by the percentage that the
underwriting discount appearing in the Prospectus bears to the initial public
offering price appearing therein and the Company shall be responsible for the
balance. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 7. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933
67
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company. The Underwriters' obligations in this Section 7 to contribute are
several in proportion to their respective underwriting obligations and not
joint.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Offered Securities to the Underwriters.
Section 9. Termination. The Representatives may also terminate this
Agreement, immediately upon notice to the Company, at any time at or prior to
the Closing Time (a) if there has been, since the Execution Date or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise, or in the earnings or the
ability to conduct business in the usual and ordinary course of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (b) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities or (c) if trading generally on
the New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by said exchange or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by Federal,
Illinois or New York authorities. In the event of any such termination, the
covenant set forth in Section 3(c), the provisions of Section 5, the indemnity
agreement set forth in Section 6, the contribution provisions set forth in
Section 7 and the provisions of Sections 8 and 13 shall remain in effect.
Section 10. Default. If one or more of the Underwriters shall fail at the
Closing Time to purchase the Offered Securities which it or they are obligated
to purchase hereunder (the "Defaulted Securities"), then the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth. If, however, during
such 24 hours the Representatives shall not have completed such arrangements for
the purchase of all of the Defaulted Securities, then:
(a) If the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Offered Securities to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the
68
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) If the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Offered Securities to be purchased
pursuant to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Representatives or the Company shall have the right
to postpone the Closing Time for a period of not exceeding seven days in order
that any required change in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
Section 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at the address or
addresses specified in Schedule II to the Special Provisions; notices to the
Company shall be directed to it at Xxx Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx
00000, Attention: Secretary.
Section 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 13. Governing Law. This Agreement shall be governed by the laws of the
State of New York, without regard to principles of conflicts of law.
69
Annex I
XXXXXX INTERNATIONAL INC.
_______________________________________
[Insert specific title of securities]
FORM OF DELAYED DELIVERY CONTRACT
________________________________________
[Insert date of initial public offering]
Xxxxxx International Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxx International Inc.
(the "Company") and the Company agrees to sell to the undersigned [If one
delayed closing, insert - as of the date hereof, for delivery on ______, 20__
(the "Delivery Date")] [$]_______________ principal amount of the Company's
__________________________ [title of Securities and related Warrants, if any]
(the "Securities"), offered by the Company's Prospectus relating thereto,
receipt of a copy of which is hereby acknowledged, at a purchase price of ___%
of the principal amount thereof plus accrued interest, if any, and on the
further terms and conditions set forth in this contract.
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
------------- ----------------
Each of such delivery dates is hereinafter referred to as a "Delivery Date"].
Payment for the Securities which the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check at _______ , time, on such Delivery
Date upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on such Delivery Date in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to such Delivery Date. If no designation is received,
the Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of securities to be
purchased by the undersigned on such Delivery Date.
70
The obligation of the undersigned to take delivery of and make payment
for, Securities on [the] [each] Delivery Date shall be subject to only the
conditions that (1) investment in the Securities shall not at such Delivery Date
be prohibited under the laws of any jurisdiction in the United States to which
the undersigned is subject, which investment the undersigned represents is not
prohibited on the date hereof, and (2) the Company shall have delivered to the
Underwriters the principal amount of the Securities to be purchased by them
pursuant to the Underwriting Agreement referred to in the Prospectus mentioned
above and received payment therefor.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of an be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of this contract and any other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this contract is
acceptable to the Company, it is requested that the Company signed the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is mailed or
delivered.
This contract shall be governed by, and construed in accordance with, the
laws of the State of New York.
Very truly yours,
[NAME OF PURCHASER]
By ______________________________
Name
Title
[Address of Purchaser]
Accepted, as of the above date.
XXXXXX INTERNATIONAL INC.
By: _____________________________
Name:
Title
71
