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DRAFT
Exhibit 1
[__________] TARGETS
TARGETS TRUST I
Targeted Growth Enhanced Terms Securities (TARGETS(SM))
With Respect to the Common Stock of
[__________] Corporation
Due on [__________ __, 200_]
fully and unconditionally guaranteed to the extent set forth
in the Prospectus dated [__________ __], 1998 by
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
UNDERWRITING AGREEMENT
[__________ ____], 1998
XXXXX XXXXXX INC.
[INSERT NAMES OF CO-MANAGERS, IF ANY]
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
TARGETS Trust I (the "Trust"), a statutory business trust organized under
the Business Trust Act (the "Delaware Act") of the State of Delaware (Chapter
38, Title 12, of the Delaware Business Code, 12 Del. C. Section 3801 et seq.),
proposes, upon the terms and conditions set forth herein, to issue and sell
__________ of its Targeted Growth Enhanced Terms Securities (TARGETS(SM)) (the
"Firm TARGETS") to the several Underwriters named in Schedule I hereto (the
"Underwriters") for whom you (the "Representatives") are acting as
representatives. The Trust also proposes, upon the terms and conditions set
forth herein and solely for the purpose of covering over-allotments, to issue
and sell to the Underwriters up to an additional __________ of its Targeted
Growth Enhanced Terms Securities (TARGETS(SM)) (the "Option TARGETS"). The Firm
TARGETS and the Option TARGETS are hereinafter collectively referred to as the
"TARGETS."
The TARGETS are to be issued pursuant to the terms of a declaration of
trust, dated as of January 30, 1998, as amended and restated as of [______ __,
1998] (the "Declaration"), among Xxxxxxx Xxxxx Xxxxxx Holdings Inc., a Delaware
corporation (the "Company" and, together with the Trust, the "Offerors"), as
sponsor, the trustees named therein (the "TARGETS Trustees") and the holders
from time to time of undivided beneficial interests in the assets of the Trust.
The Declaration is qualified as an indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
The TARGETS represent undivided beneficial ownership interests in the
assets of the Trust. The assets of the Trust will consist solely of (i) a
forward contract with
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respect to the Common Stock of [________________ Corporation] purchased by the
Trust from the Company (the "Forward Contract") and (ii) a portfolio of stripped
U.S. treasury securities (the "Treasury Securities"). The Company and The Chase
Manhattan Bank, a New York banking association, as Guarantee Trustee (the
"Guarantee Trustee"), are to enter into the TARGETS Guarantee Agreement dated as
of [________ __], 1998 (the "Guarantee Agreement") with respect to the TARGETS.
The Guarantee Agreement, when taken together with the Forward Contract and the
Company's obligation to pay all fees and expenses of the Trust, constitutes a
full and unconditional guarantee by the Company of all payments to be made to
the holders of the TARGETS. The TARGETS, the Guarantee and the Forward Contract
are hereinafter collectively referred to as the "Securities."
The Offerors wish to confirm as follows their agreement with you and the
other several Underwriters on whose behalf you are acting, in connection with
the several purchases of the TARGETS by the Underwriters.
1. Representations and Warranties. The Offerors represent and warrant to,
and agree with, each of you as set forth below in this Section 1.
(a) A registration statement on Form S-3 (File No. 333-45529), including a
prospectus, relating to the Securities has been prepared by the Company in
conformity in all material respects with the requirements of the Securities Act
of 1933, as amended (the "Act"), the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has been filed with the Commission and has become effective.
Such registration statement and prospectus may have been amended or supplemented
from time to time prior to the date of this Agreement; any such amendment to the
Registration Statement was so prepared and filed and any such amendment has
become effective. Copies of such registration statement and prospectus, any such
amendment or supplement and all documents incorporated by reference therein
which were filed with the Commission on or prior to the date hereof have been
delivered to you. Such registration statement and prospectus, as amended or
supplemented to the date hereof, are hereinafter collectively referred to as the
"Registration Statement" and the "Prospectus," respectively. Any references
herein to the Registration Statement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein which were filed
with the Commission on or prior to the date hereof, and any reference to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include the filing
of any document with the Commission deemed to be incorporated by reference
therein after the date hereof.
(b) The Registration Statement, at the time it became effective, any
post-effective amendment thereto, at the time it became effective, the
Registration Statement and the Prospectus, as of the date hereof and at the
Closing Date (as hereinafter defined), and any amendment or supplement thereto,
conformed or will conform in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations; and no such document
included or will include an untrue statement of a material fact or omitted or
will omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; except that the foregoing
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shall not apply to (i) statements or omissions from any such document in
reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through you, specifically for use in
the preparation thereof or (ii) that part of the Registration Statement which
shall constitute Statements of Eligibility (Forms T-1) under the Trust Indenture
Act of each of the Institutional Trustee, the Guarantee Trustee and the Delaware
Trustee.
(c) The documents incorporated by reference in the Registration Statement
or Prospectus, when they became effective or were filed with the Commission, as
the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), conformed and any documents so filed and incorporated by
reference after the date hereof will, when they are filed with the Commission,
conform, in all material respects to the requirements of the Act and the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at a purchase price of $__ per Firm
TARGET, plus accrued distributions, if any, from [________ __], 1998, the number
of Firm TARGETS set forth opposite the name of such Underwriter in Schedule I
hereto (or such number of Firm TARGETS increased as set forth in Section 8
hereof).
The Company agrees that, in view of the fact that the proceeds of the sale
of the TARGETS will be invested in the Forward Contract, it shall pay to the
Underwriters as compensation ("Underwriters' Compensation") for their arranging
the investment of the proceeds therein, on the Closing Date (as hereinafter
defined), $.____ per Firm TARGET.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
[ ] Option TARGETS at the same purchase price per Option TARGET as the
Underwriters shall pay for the Firm TARGETS. Said option may be exercised only
to cover over-allotments in the sale of the Firm TARGETS by the Underwriters.
Said option may be exercised in whole or in part at any time (but not more than
once) on or before the 30th day after the date of the Prospectus upon written or
telegraphic notice by the Representatives to the Company setting forth the
number of Option TARGETS as to which the several Underwriters are exercising the
option and the settlement date (the "Option Closing Date"). Delivery of the
Option TARGETS by the Company, and payment therefor to the Company, shall be
made as provided in Section 3 hereof. The number of the Option TARGETS to be
purchased by each Underwriter shall be the same percentage of the total number
of the Option TARGETS to be purchased by the several Underwriters as such
Underwriter is purchasing of the Firm TARGETS, subject to such adjustments as
you in your absolute discretion shall make to eliminate any fractional TARGETS.
The Company agrees that it will pay Underwriters' Compensation on the Option
Closing Date in the amounts per Firm TARGET set forth in the immediately
preceding paragraph with respect to any Option TARGET purchased by the
Underwriters.
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3. Delivery and Payment. Delivery of and payment for the Firm TARGETS and
the Option TARGETS (if the option provided for in Section 2(b) hereof shall have
been exercised on or before the Business Day prior to the Closing Date (as
hereinafter defined) shall be made at 10:00 AM, New York City time, on ________
__, 1998, or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, 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 Firm TARGETS being herein referred to as the "Closing Date"). Delivery
of the TARGETS 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 wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the TARGETS shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
Business Day prior to the Closing Date, the Company will deliver the Option
TARGETS (at the expense of the Company) to the Representatives on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) 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 wire transfer payable in same-day funds to an account specified by
the Company. If settlement for the Option TARGETS occurs after the Closing Date,
the Company will deliver to the Representatives on the settlement date for the
Option TARGETS, and the obligation of the Underwriters to purchase the Option
TARGETS shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 5 hereof.
4. Agreements of the Offerors. The Offerors jointly and severally agree
with the several Underwriters as follows:
(a) The Offerors will cause the Prospectus to be filed pursuant to Rule
424 under the Act and will notify you promptly of such filing. During the period
in which a prospectus relating to the TARGETS is required to be delivered under
the Act, the Offerors will notify you promptly of the time when any amendment to
the Registration Statement has become effective or any subsequent supplement to
the Prospectus has been filed and of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for additional information; the Offerors will prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus, which, in your opinion, may be necessary
or advisable in connection with the distribution of the TARGETS by the
Underwriters; the Offerors will file no amendment or supplement to the
Registration Statement or the Prospectus (other than any document required to be
filed under the Exchange Act which upon filing is deemed to be incorporated by
reference therein) to which you shall reasonably object by notice to the Company
after having been furnished a copy a reasonable time prior to the filing; and
the Offerors will furnish to you at or prior to the filing thereof a copy of any
such prospectus supplement
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or any document which upon filing is deemed to be incorporated by reference in
the Registration Statement or Prospectus.
(b) The Offerors will advise you, promptly after either of them shall
receive notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the TARGETS for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any such
purpose; and they will promptly use their respective best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(c) Within the time during which a prospectus relating to the TARGETS is
required to be delivered under the Act, the Offerors will comply with all
requirements imposed upon the Offerors by the Act, as now and hereafter amended,
and by the Rules and Regulations, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealings in the TARGETS as
contemplated by the provisions hereof and the Prospectus. If during such period
any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
necessary to amend or supplement the Registration Statement or the Prospectus to
comply with the Act, the Offerors will promptly notify you and you will amend or
supplement the Registration Statement or the Prospectus (at the expense of the
Offerors) so as to correct such statement or omission or effect such compliance.
(d) The Offerors will use their respective best efforts to qualify the
TARGETS for sale under the securities laws of such jurisdictions as you
reasonably designate, to maintain such qualifications in effect so long as
required for the distribution of the TARGETS and, if requested by the
Underwriters, to arrange for the determination of the legality of the TARGETS
for purchase by institutional investors, except that neither the Company nor the
Trust shall be required in connection therewith to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(e) The Offerors will furnish to the Underwriters copies of the
Registration Statement and the Prospectus (including all documents incorporated
by reference therein), and all amendments and supplements to the Registration
Statement or the Prospectus which are filed with the Commission during the
period in which a prospectus relating to the TARGETS is required to be delivered
under the Act (including all documents filed with the Commission during such
period which are deemed to be incorporated by reference therein), in each case
in such quantities as you may from time to time reasonably request.
(f) The Company will make generally available to its security holders and
to you as soon as practicable, but in any event not later than 15 months after
the end of the Company's current fiscal quarter, an earnings statement (which
need not be audited) of the Company covering a 12-month period beginning after
the date upon which the
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Prospectus is filed pursuant to Rule 424 under the Act, which shall satisfy the
provisions of Section 11(a) of the Act.
(g) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all expenses incident
to the performance of the Offerors' obligations hereunder, including, without
limiting the generality of the foregoing, all costs, taxes and expenses incident
to the issue and delivery of the Securities, all fees and expenses of the
Offerors' counsel and accountants, and all costs and expenses incident to the
preparing, printing, filing and distributing of all documents relating to the
offering, and will reimburse the Underwriters for any expenses (including fees
and disbursements of counsel) incurred by them in connection with the matters
referred to in Section 4(d) hereof and the preparation of memoranda relating
thereto, for any filing fee of the National Association of Securities Dealers,
Inc. relating to the TARGETS, and for any fees charged by investment rating
agencies for rating the TARGETS. If the sale of TARGETS provided for in this
Agreement is not consummated by reason of any failure, refusal or inability on
the part of the Offerors to perform any agreement on its part to be performed,
or because any other condition of the Underwriters' obligations hereunder
required to be fulfilled by the Offerors is not fulfilled, the Company will
reimburse the Underwriters for all reasonable out-of-pocket disbursements
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with the proposed purchase and sale of the TARGETS.
(h) Each of the Trust and the Company agree, during the period beginning
on the date of this Agreement and continuing to and including the Closing Date,
not to offer, sell, contract to offer, sell or otherwise dispose of any TARGETS
or any other securities (including any backup undertakings for such securities)
of the Company or of the Trust, in each case that are substantially similar to
the TARGETS, or any securities convertible into or exchangeable for the TARGETS
or such substantially similar securities of either the Trust or the Company,
without the prior written consent of Xxxxx Xxxxxx Inc.
5. Conditions of Underwriters' Obligations. The obligations of the several
Underwriters to purchase and pay for the TARGETS as provided herein shall be
subject to the accuracy, as of the date of this Agreement and the Closing Date
(as if made at the Closing Date), of the representations and warranties of the
Offerors herein, to the performance by the Offerors of their obligations
hereunder, and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company, the Trust or any
Underwriter, threatened by the Commission, and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective change,
in or affecting particularly the business or properties of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters, including any
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Representatives, materially impairs the investment quality of the TARGETS; (ii)
any downgrading in the rating of the TARGETS or the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by Federal or New York authorities; or (v)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters, including any Representatives, the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the TARGETS.
(c) You shall have received an opinion, dated the Closing Date, of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Offerors,
substantially in the form attached hereto as Exhibit A.
(d) You shall have received an opinion, dated the Closing Date, of Xxxxxx
X. Xxxxxxxx, Secretary and General Counsel of the Company, substantially in the
form attached hereto as Exhibit B.
(e) You shall have received an opinion, dated the Closing Date, of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel to the Company and
the Trust, substantially in the form attached hereto as Exhibit C.
(f) You shall have received an opinion, dated the Closing Date, of Xxxxxxx
Xxxxxxx & Xxxx, counsel to Chase, substantially in the form attached hereto as
Exhibit D.
(g) You shall have received from Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus and other related matters as you may reasonably
require, and the Trust and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(h) The Company and the Trust shall each have furnished to you a
certificate, dated the Closing Date, and, in the case of the Company, signed by
either Co-Chairman of the Board, any Vice Chairman, the Chief Financial Officer,
the Treasurer, the Deputy Treasurer or any Vice President and by the Controller
or principal financial or accounting officer of the Company, and, in the case of
the Trust, signed by one of the Regular Trustees, to the effect that each
signatory of such certificate has carefully examined the Registration Statement,
as amended as of the date of such certificate, the Prospectus, as amended and
supplemented as of the date of such certificate, and this Agreement and that:
(i) the representations and warranties of the Company or the Trust,
as the case may be, in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the Closing Date, and
the Company and
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the Trust, as the case may be, has complied in all material respects with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or, to their knowledge, threatened;
(iii) the Registration Statement, including any supplements or
amendments thereto, do 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; the Prospectus,
including any supplements or amendments thereto, does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and since the effective date of the Registration Statement
there has not occurred any event concerning which information is required
to be contained in an amended or supplemented Prospectus concerning which
such information is not contained therein; and
(iv) there have been no material adverse changes in the general
affairs of the Company and its subsidiaries taken as a whole or the Trust
or in their financial position as shown by information contained in the
Registration Statement and the Prospectus, other than changes disclosed in
or contemplated by the Registration Statement and the Prospectus.
(i) Xxxxxxx & Xxxxxxx L.L.P. or another nationally recognized independent
accounting firm, shall have furnished to you a letter or letters, dated the
Closing Date, substantially in the form heretofore approved by you.
(j) The TARGETS shall have been registered under the Exchange Act and
shall have been listed or approved for listing, upon notice of issuance, on the
Chicago Board Options Exchange.
(k) Prior to the Closing Date, the Company shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
The obligations of the Underwriters to purchase any Option TARGETS
hereunder are subject to the satisfaction on and as of any Option Closing Date
of the conditions set forth in this Section 5, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in this Section 5 shall be dated the Option Closing Date and
shall be revised to reflect the sale of the Option TARGETS.
6. Indemnification and Contribution. (a) Each of the Trust and the Company
will jointly and severally indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue
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statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, 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 for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim damage, liability or action; provided, however, that neither of the
Offerors shall 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
Offerors by or on behalf of any Underwriter through you, specifically for use in
the preparation thereof.
(b) Each Underwriter will indemnify and hold harmless each of the Trust
and the Company against any losses, claims, damages or liabilities to which the
Trust or the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, the Prospectus or
any amendment or supplement thereto, or any related preliminary prospectus, 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made therein in reliance upon and in conformity with
written information furnished to the Offerors by or on behalf of any
Underwriter, through you, specifically for use in the preparation thereof, and
will reimburse the Trust and the Company for any legal or other expenses
reasonably incurred by the Trust and the Company in connection with
investigating or defending against any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnified party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 6 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such
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indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other from the offering of the TARGETS, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Offerors on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Offerors on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total proceeds
from the offering of the TARGETS (before deducting expenses) received by the
Trust bear to the total amount of Underwriters' Compensation received by the
Underwriters, in each case as set forth in the Prospectus. 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 or the omission or alleged omission to state a material
fact relates to information supplied by the Offerors or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Offerors and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were to be 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 the first sentence of this subsection (d). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim (which shall be limited as provided in subsection (c) above if the
indemnifying party has assumed the defense of any such action in accordance with
the provisions thereof) which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the TARGETS 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute shall be several in proportion to their respective underwriting
obligations and not joint. Promptly after receipt by an indemnified party under
this subsection (d) of the notice of the commencement of any action against such
party in respect of which a claim for contribution may be made against an
indemnifying party under this subsection (d), such indemnified party shall
notify the indemnifying party in writing of the commencement thereof if the
notice specified in subsection (c) above has not been given with respect to such
action; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under this subsection (d).
(e) The obligations of the Offerors under this Section 6 shall be in
addition to any liability which the Offerors may otherwise have and shall
extend, upon the same
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terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act or the Exchange Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company (including any person who,
with his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company and TARGETS Trustee who
has signed the Registration Statement, and to each person, if any, who controls
the Company or the Trust within the meaning of the Act or the Exchange Act.
7. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Company or the Trust herein or
in certificates delivered pursuant hereto, and the agreements of the several
Underwriters contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling persons, or the Company or any of its officers,
directors or any controlling persons, or the Trust or the TARGETS Trustees and
shall survive delivery of and payment for the TARGETS.
8. Substitution of Underwriters. (a) If any Underwriter or Underwriters
shall fail to take up and pay for the principal amount of TARGETS agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of such
TARGETS in accordance with the terms hereof, and the principal amount of TARGETS
not purchased does not aggregate more than 10% of the total principal amount of
the TARGETS, the remaining Underwriters shall be obligated to take up and pay
for (in proportion to the respective underwriting obligations hereunder as set
forth herein except as may otherwise be determined by you) the TARGETS which the
withdrawing or defaulting Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay for
the number of TARGETS agreed by such Underwriter or Underwriters to be purchased
hereunder, upon tender of such TARGETS in accordance with the terms hereof, and
the number of TARGETS not purchased aggregates more than 10% of the total number
of TARGETS, and arrangements satisfactory to you and the Offerors for the
purchase of such TARGETS by other persons are not made within 36 hours
thereafter, this Agreement shall terminate. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not to exceed seven full business days, as you shall determine
in order that the required changes in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. In the
event of any such termination, the Offerors shall not be under any liability to
any Underwriter (except to the extent provided in Section 4(g) and Section 6
hereof) nor shall any Underwriter (other than an Underwriter who shall have
failed, otherwise than for some reason permitted under this Agreement, to
purchase the number of TARGETS agreed by such Underwriter to be purchased under
this Agreement) be under any liability to the Offerors (except to the extent
provided in Section 6 hereof). Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Offerors and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
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9. Termination of Agreement. You shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior to
the Closing Date if (i) the Company or the Trust shall have failed, refused or
been unable, at or prior to the Closing Date, to perform, in any material
respect, any agreement on its part to be performed hereunder, or (ii) any other
condition of the Underwriters' obligations is not fulfilled in all material
respects. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 4(g) and Section 6 shall at
all times be effective. If you elect to terminate this Agreement as provided in
this Section, the Company shall be notified promptly by you by telephone,
telecopy or telegram, confirmed by letter.
10. Notices. Except as otherwise provided herein, notice given pursuant to
any provision of this Agreement shall be in writing and shall be delivered (i)
if to the Offerors, to the Company, or to the Trust care of the Company, at the
office of the Company at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Treasurer; or (ii) if to you, as Representatives of the several
Underwriters, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Manager, Investment Banking Division.
11. Parties. This Agreement shall inure to the benefit of and be binding
upon the Company, the Trust and the Underwriters and their respective successors
and the controlling persons, officers and directors referred to in Section 6
hereof, and no other person shall have any right or obligation hereunder.
In all dealings with the Company and the Trust under this Agreement, you
shall act on behalf of each of the several Underwriters, and any action under
this Agreement taken by you will be binding upon all the Underwriters.
12. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13. Counterparts. This Agreement may be executed by one or more of you,
the Company and the Trust in one or more counterparts, each of which shall
constitute an original and all of which taken together shall constitute one and
the same Agreement.
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Please confirm that the foregoing correctly sets forth the agreement among
the Trust, the Company and the several Underwriters.
Very truly yours,
TARGETS TRUST I
By_________________________________
Xxxxxxx X. Xxx
as Regular Trustee
By_________________________________
Xxxxxxx X. Xxxxxx
as Regular Trustee
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By_________________________________
Name:
Title:
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule
I hereto.
XXXXX XXXXXX INC.
[INSERT NAMES OF CO-MANAGERS, IF ANY]
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
By_________________________________
Name:
Title:
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SCHEDULE I
TARGETS TRUST I
_____% Target Growth Enhanced Terms Securities (TARGETS(SM))
Number of
Underwriters Firm TARGETS
------------ ------------
Xxxxx Xxxxxx Inc............................................... ________
[INSERT NAMES & ALLOCATIONS OF
OTHER SYNDICATE MEMBERS]....................................... ________
========
TOTAL.......................................................... ________
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