XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
$350,000,000
GLOBAL FLOATING RATE NOTES DUE SEPTEMBER 2002
UNDERWRITING AGREEMENT
September 12, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
As the sole U.S. Underwriter
named in Schedule I hereto
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXXXX, XXXXXX & XXXXXXXX INTERNATIONAL
BANQUE NATIONALE DE PARIS LONDON BRANCH
BANQUE PARIBAS
CHASE MANHATTAN INTERNATIONAL LIMITED
CITIBANK INTERNATIONAL PLC
COMMERZBANK AKTIENGESELLSCHAFT
CREDIT LYONNAIS
DEUTSCHE BANK AG LONDON
SOCIETE GENERALE XXXXXXX XXXXXXXX SECURITIES LIMITED
UBS LIMITED
DRESDNER BANK AKTIENGESELLSCHAFT
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
SALOMON BROTHERS INTERNATIONAL LIMITED
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx International
00 Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
U.K.
Ladies and Gentlemen:
Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc., a Delaware corporation (the
"COMPANY") proposes to issue and sell $350,000,000 principal amount of its
Global Floating Rate Notes Due September 2002 (the "SECURITIES") to the sole
U.S. underwriter named in Schedule I hereto (the
"U.S. UNDERWRITER") and to the several International Managers named in
Schedule II hereto (the "INTERNATIONAL MANAGERS" and, with the U.S.
Underwriter, the "UNDERWRITERS"). The Securities are to be issued pursuant to
the provisions of an Indenture dated as of September 3, 1997 (the "INDENTURE")
and a First Supplemental Indenture to be entered into, each of which is
between the Company and The Chase Manhattan Bank, as Trustee (the "TRUSTEE").
1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "COMMISSION") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called
the "ACT"), a registration statement on Form S-3 relating to, among other
things, certain debt securities of the Company (the "SHELF SECURITIES") to be
issued from time to time by the Company. The Company also has filed with, or
proposes to file with, the Commission pursuant to Rule 424 under the Act, a
prospectus supplement specifically relating to the Securities. The
registration statement as amended at the date of this Agreement is hereinafter
referred to as the Registration Statement; and the related prospectus covering
the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the Basic Prospectus. The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the Prospectus. Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
prospectus (a "PRELIMINARY PROSPECTUS") previously filed with the Commission
pursuant to Rule 424 or the Prospectus, shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "EXCHANGE ACT") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the
Prospectus, as the case may be; and any reference to "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include any documents filed under the Exchange Act after the date of this
Agreement, or the date of the Basic Prospectus, any preliminary prospectus or
the Prospectus, as the case may be, which are deemed to be incorporated by
reference therein.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company
the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I and Schedule II hereto, at 99.36 % of the principal
amount thereof (the "PURCHASE PRICE") plus accrued interest thereon, if any,
from September 18, 1997 to the date of payment and delivery. If no amount is
set forth in Schedule I with respect to the U.S. Underwriter, Securities may
nevertheless be sold to the U.S. Underwriter as a result of a reallocation of
the Securities shown on Schedule II pursuant to that certain Agreement Between
U.S. Underwriter and International Managers dated as of the date of this
Agreement and the rights and obligations
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of the U.S. Underwriter shall pertain to the sale to and purchase by the U.S.
Underwriter of any Securities so allocated as if such Securities were set
forth in Schedule I.
3. Terms and Conditions of the Offering. The Company is advised
by you that each Underwriter represents, warrants and agrees that:
(a) Each Underwriter will purchase and resell its respective
portions of the Securities (the "OFFERING") only upon the terms and
conditions set forth in the Prospectus and in this Agreement and only
as permitted by the Act and any applicable securities laws and
regulations of any jurisdiction in which the offer, sale or delivery
of the Securities is subject to regulation.
(b) No action has been or will be taken in any jurisdiction
by the Underwriters or the Company that would permit a public
offering of the Securities or possession or distribution of the
Prospectus in preliminary or final form in any jurisdiction where, or
in any circumstances in which, action for that purpose is required,
other than the United States. The Underwriters understand and agree
that each Underwriter is responsible for compliance with all laws
applicable to offers and sales of the Securities and distribution of
the Prospectus by such Underwriter and its affiliates. The
Underwriters will not, as principal or agent, directly or indirectly,
offer, sell or deliver the Securities or distribute the Prospectus,
any advertisement or other offering material in any country or
jurisdiction except in compliance with any applicable laws and
regulations. In addition, without prejudice to the generality of the
foregoing, each Underwriter represents, warrants and agrees to
observe and comply with the specific non-U.S. restrictions set forth
on Exhibit A, as applicable, and as the applicable laws, rules and
regulations may be amended from time to time.
(c) (i) Each Underwriter represents and agrees that it will
comply with all applicable laws and regulations, and make or obtain
all necessary filings, consents or approvals, in each jurisdiction in
which it purchases, offers, sells or delivers Securities (including,
without limitation, any applicable requirements relating to the
delivery of the Prospectus, in preliminary or final form), in each
case at its own expense; (ii) the Company shall have no
responsibility to such Underwriter or its affiliates with respect to
the matters covered in this Section 3(c).
(d) Each Underwriter acknowledges that neither it, its
affiliates nor any other person is authorized to give any information
or make any representation in connection with the offering, issue,
sale or delivery of the Securities other than those contained in the
Prospectus (as supplemented and amended) or with the prior written
consent of the Company.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Securities shall be made at 10:00 A.M., New York City time, on
the fourth business day (the
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"CLOSING DATE") following the date of this Agreement, at such place as you
shall designate. The Closing Date and the location of delivery of and the form
of payment for the Securities may be varied by agreement between you and the
Company.
Certificates for the Securities shall be registered in the name of
Cede & Co. or such other nominee of the Depository Trust Company as is
nominated by the Depository Trust Company not later than two full business
days prior to the Closing Date. Such certificates shall be made available to
you for inspection not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date. Certificates in definitive form
evidencing the Securities shall be delivered to you or at your direction on
the Closing Date with any transfer taxes thereon duly paid by the Company, for
the respective accounts of the several Underwriters, against payment of the
Purchase Price therefor by wire transfer or certified or official bank checks
payable in immediately available funds to the order of the Company.
5. Agreements of the Company. The Company agrees with you:
(a) To file the Prospectus in a form approved by you
pursuant to Rule 424 under the Act not later than the Commission's
close of business on the second business day following the date of
determination of the offering price of the Securities.
(b) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act during the period mentioned in paragraph (f) below.
(c) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when any amendment to the
Registration Statement becomes effective, (ii) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes,
and (iv) of the happening of any event during the period referred to
in paragraph (f) below which makes any statement of a material fact
made in the Registration Statement or the Prospectus untrue or which
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort
to obtain the withdrawal or lifting of such order at the earliest
possible time.
(d) To furnish to you, without charge, one signed copy of
the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits and documents
incorporated by reference therein, and to furnish to you and each
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Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it,
without exhibits, and documents incorporated by reference therein as
you may reasonably request.
(e) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to
which you shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to
the Registration Statement or supplement to the Prospectus which may
be necessary or advisable in connection with the distribution of the
Securities by you, and to use its best efforts to cause any amendment
to the Registration Statement to become promptly effective.
(f) From time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as
such Underwriter or dealer may reasonably request.
(g) If during the period specified in paragraph (f) any
event shall occur as a result of which, in the opinion of counsel for
the Underwriters it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the
Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter
or dealers may reasonably request.
(h) Prior to any public offering of the Securities in the
United States, to cooperate with you and counsel for the Underwriters
in connection with the registration or qualification of the
Securities for offer and sale by the several Underwriters and by
dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in
effect so long as required for distribution of the Securities and to
file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification.
(i) To mail and make generally available upon request to its
security holders as soon as reasonably practicable an earnings
statement covering a period of at least twelve months after the
effective date of the Registration Statement (but in no event
commencing later than 90 days after such date) which shall satisfy
the provisions of
5
Section 11(a) of the Act, and to advise you in writing when such
statement has been so made available.
(j) During the period of five years after the date of this
Agreement, (i) to mail upon request as soon as reasonably practicable
after the end of each fiscal year to the record holders of its
Securities a financial report of the Company and its subsidiaries on
a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to
include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated
statement of shareholders' equity as of the end of and for such
fiscal year, together with comparable information as of the end of
and for the preceding year, certified by independent certified public
accountants, and (ii) to mail upon request and make generally
available as soon as practicable after the end of each quarterly
period (except for the last quarterly period of each fiscal year) to
such holders, a consolidated balance sheet, a consolidated statement
of operations and a consolidated statement of cash flows (and similar
financial reports of all unconsolidated subsidiaries, if any) as of
the end of and for such period, and for the period from the beginning
of such year to the close of such quarterly period, together with
comparable information for the corresponding periods of the preceding
year.
(k) During the period referred to in paragraph (j), to
furnish upon request to you as soon as available a copy of each
report or other publicly available information of the Company mailed
to the security holders of the Company or filed with the Commission
and such other publicly available information concerning the Company
and its subsidiaries as you may reasonably request.
(l) To pay all costs, expenses, fees and taxes incident to
(i) the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits),
any preliminary prospectus and all amendments and supplements to any
of them prior to or during the period specified in paragraph (f),
(ii) the printing and delivery of the Prospectus and all amendments
or supplements to it during the period specified in paragraph (f),
(iii) the printing and delivery of this Agreement, the Preliminary
and Supplemental Blue Sky Memoranda and all other agreements,
memoranda, correspondence and other documents printed and delivered
in connection with the offering of the Securities (including in each
case any disbursements of counsel for the Underwriters relating to
such printing and delivery), (iv) the registration or qualification
of the Securities for offer and sale under the securities or Blue Sky
laws of the several states (including in each case the fees and
disbursements of counsel for the Underwriters relating to such
registration or qualification and memoranda relating thereto), (v)
any filings and clearance with the National Association of Securities
Dealers, Inc. required in connection with the offering, (vi) the
listing of the Securities on any exchange or the National Association
of Securities Dealers Automated Quotation system ("NASDAQ") National
Market System and (vii) furnishing such copies of the
6
Registration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with
the offering or sale of the Securities by the Underwriters or by
dealers to whom Securities may be sold.
(m) To use its best efforts to list and maintain the
inclusion of the Securities on the Luxembourg Stock Exchange during
such time as the Securities remain issued and outstanding.
(n) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than (i) the
Securities and (ii) commercial paper issued in the ordinary course of
business), without your prior written consent.
(o) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement
by the Company prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Securities.
(p) The Company will, for so long as any of the Securities
are outstanding and if, in the reasonable judgment of any
Underwriter, such Underwriter or any of its affiliates (as defined in
the rules and regulations under the Act) is required to deliver a
prospectus in connection with sales of the Securities (i)
periodically amend the Registration Statement so that the information
contained in the Registration Statement complies with the
requirements of Section 10(a) of the Act, (ii) amend the Registration
Statement or supplement the Prospectus when necessary to reflect any
material changes in the information provided therein, (iii) provide
such Underwriter with copies of each amendment or supplement filed
and such other documents, including opinions of counsel and "comfort"
letters, as such Underwriter may reasonably request and (iv) agree to
indemnify such Underwriter and if applicable, contribute to any
amount paid or payable by such Underwriter in a manner substantially
identical to that specified in Section 7 hereof (with appropriate
modifications).
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will 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 not
misleading,
7
(ii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any
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 under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph (b) do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act, and
none of such documents, when they were filed with the Commission,
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus, when such documents are filed with the Commission
will conform in all material respects to the requirements of the
Exchange Act, as applicable, and will not contain 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 under which
they were made, not misleading.
(d) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act; and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(e) The Company and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJSC" and, as the sole significant subsidiary of the
Company, the "SUBSIDIARIES") has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation authorized
to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the Company and its Subsidiaries,
taken as a whole.
(f) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's Subsidiaries have
been duly authorized and validly
8
issued and are fully paid and non-assessable, and are owned by the
Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(g) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to the Underwriters against payment therefor
as provided by this Agreement, will be entitled to the benefits of
the Indenture, and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by applicable
law).
(i) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(j) The Securities conform as to legal matters to the
description thereof contained in the Prospectus.
(k) Neither the Company nor any of its Subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument material to the conduct
of the business of the Company and its Subsidiaries, taken as a
whole, to which the Company or any of its Subsidiaries is a party or
by which it or any of its Subsidiaries or their respective property
is bound.
(l) The execution, delivery and performance of this
Agreement, the Indenture and the Securities and compliance by the
Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will
not require any consent, approval, authorization or other order of
any U.S. court, U.S. regulatory body, U.S. administrative agency or
other U.S. governmental body (except as such may be required under
the Act or state securities or Blue Sky laws) and will not conflict
with or constitute a breach of any of the terms or provisions of, or
a default
9
under, the charter or by-laws of the Company or any of its
Subsidiaries or any agreement, indenture or other instrument to which
it or any of its Subsidiaries is a party or by which it or any of its
Subsidiaries or their respective property is bound, or violate or
conflict with any laws, administrative regulations or rulings or
court decrees applicable to the Company, any of its Subsidiaries or
their respective property.
(m) Except as otherwise set forth or incorporated by
reference in the Prospectus, there are no material legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any of their respective property
is the subject, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated. No contract or document
of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration
Statement is not so described, filed or incorporated by reference as
required.
(n) Neither the Company nor any of its Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws,
nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which in each case
might result in any material adverse change in the business,
prospects, financial condition or results of operation of the Company
and its Subsidiaries, taken as a whole.
(o) The Company and each of its Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("PERMITS"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business; the Company and each of its Subsidiaries has fulfilled and
performed all of its material obligations with respect to such
permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder
of any such permit; and, except as described or incorporated by
reference in the Prospectus, such permits contain no restrictions
that are materially burdensome to the Company and its Subsidiaries,
taken as a whole.
(p) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on
10
operating activities and any potential liabilities to third parties).
On the basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not, singly or in
the aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(q) Except as otherwise set forth or incorporated by
reference in the Prospectus or such as are not material to the
business, prospects, financial condition or results of operation of
the Company and its Subsidiaries, taken as a whole, the Company and
each of its Subsidiaries has good and marketable title, free and
clear of all liens, claims, encumbrances and restrictions except
liens for taxes not yet due and payable, to all property and assets
described in the Registration Statement as being owned by it. All
leases to which the Company or any of its Subsidiaries is a party are
valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change in the
business, prospects, financial condition or results of operation of
the Company and its Subsidiaries taken as a whole, and the Company
and its Subsidiaries enjoy peaceful and undisturbed possession under
all such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the
Company or such Subsidiary.
(r) The Company and each of its Subsidiaries maintains
reasonably adequate insurance.
(s) KPMG Peat Marwick LLP are independent public accountants
with respect to the Company as required by the Act.
(t) The financial statements, together with related
schedules and notes forming part of or incorporated by reference in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of
the Company and its subsidiaries on the basis stated or incorporated
by reference in the Registration Statement at the respective dates or
for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the
other financial and statistical information and data set forth or
incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) is, in all
material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records
of the Company and its subsidiaries and the pro forma financial
information, and the related notes thereto, included or incorporated
by reference in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the
Act and Exchange Act, as applicable.
11
(u) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(v) Except as described or incorporated by reference in the
Prospectus, no holder of any security of the Company has any right to
require registration of shares of common stock or any other security
of the Company.
(w) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(x) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(y) All material tax returns required to be filed by the
Company and each of its Subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and
all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any
of its Subsidiaries have been paid, other than those being contested
in good faith and for which adequate reserves have been provided.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments (including,
without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission
12
based upon information relating to any Underwriter furnished in
writing to the Company by such Underwriter through you expressly for
use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement, each person, if any, who
controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Underwriter but only with
reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter through you expressly for
use in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to
Section 7(a) or 7(b) (the "INDEMNIFIED PARTY"), the indemnified party
shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying
party shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which
indemnity may be sought pursuant to both Sections 7(a) and 7(b), the
Underwriter shall not be required to assume the defense of such
action pursuant to this Section 7(c), but may employ separate counsel
and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless
(i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such
action or employ counsel reasonably satisfactory to the indemnified
party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the
indemnifying party, and the indemnified party shall have been advised
by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all
indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate
firm for the Underwriters, their officers and directors and such
control persons of any Underwriters, such firm shall be designated in
writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. In
the case of any such separate firm for the Company and such
directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. The indemnifying party
shall indemnify and hold harmless the indemnified party from and
against any and all losses, claims, damages, liabilities and
13
judgments by reason of any settlement of any action (i) effected with
its written consent or (ii) effected without its written consent if
the settlement is entered into more than twenty business days after
the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense
of the indemnifying party) and, prior to the date of such settlement,
the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to,
any pending or threatened action in respect of which the indemnified
party is or could have been a party and indemnity or contribution may
be or could have been sought hereunder by the indemnified party,
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on
claims that are or could have been the subject matter of such action
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified
party.
(d) To the extent the indemnification provided for in this
Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages, liabilities or judgments
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and judgments (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from
the offering of the Securities or (ii) if the allocation provided by
clause 7(d)(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 7(d)(i) above but also the relative
fault of the Company on the one hand and the Underwriters on the
other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments,
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other hand shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses)
received by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to
the public of the Securities, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the
Company on the one hand and the Underwriters on the other hand 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 on the one hand or the Underwriters on the
other hand 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 pursuant to this Section 7(d) were
determined by pro rata allocation (even if
14
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 immediately preceding
paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses incurred by such indemnified party in connection with
investigating or defending any matter, including any action, that
could have given rise to such losses, claims, damages, liabilities or
judgments. 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 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 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several
in proportion to the aggregate principal amount of Securities
purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may
otherwise by available to any indemnified party at law or in equity.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) The Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act,
and at the Closing Date no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings
for that purpose shall have been commenced or shall be pending before
or contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been
any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating
15
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(d) (i) Since the date of the latest balance sheet included
or incorporated by reference in the Registration Statement and the
Prospectus, there shall not have been any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, affairs or
business prospects, whether or not arising in the ordinary course of
business, of the Company, (ii) since the date of the latest balance
sheet included or incorporated by reference in the Registration
Statement and the Prospectus there shall not have been any change, or
any development involving a prospective material adverse change, in
the capital stock or in the long-term debt of the Company from that
set forth or incorporated by reference in the Registration Statement
and Prospectus, (iii) the Company and its Subsidiaries shall have no
liability or obligation, direct or contingent, which is material to
the Company and its Subsidiaries, taken as a whole, other than those
reflected or incorporated by reference in the Registration Statement
and the Prospectus and (iv) on the Closing Date you shall have
received a certificate dated the Closing Date, signed by an executive
officer of the Company confirming the matters set forth in paragraphs
(a), (b), (c) and (d) of this Section 8.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you), dated the Closing Date, of Xxxxxxx X. Xxxx,
General Counsel of the Company, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has the corporate power
and authority required to carry on its business as it is
currently being conducted and to own, lease and operate its
properties;
(ii) each of the Subsidiaries has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority required to carry
on its business as it is currently being conducted and to
own, lease and operate its properties;
(iii) the Company and each of its Subsidiaries is
duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or
leasing of property requires such qualification, except
where the failure to be so qualified would not have a
material adverse effect on the Company and its Subsidiaries,
taken as a whole;
16
(iv) all of the outstanding shares of capital stock
of, or other ownership interests in, each of the
Subsidiaries have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned by
the Company, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature;
(v) the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the purchasers thereof in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company,
enforceable against the Company in accordance with the terms
of this Agreement and the terms of the Indenture except (a)
as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and (b)
as such enforcement may be limited by general principles of
equity, regardless of whether enforcement is sought in a
proceeding at law or in equity;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, except as rights to
indemnity and contribution thereunder may be limited by
applicable law;
(vii) the Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the
Trustee) is a valid and binding agreement of the Company,
enforceable in accordance with its terms except (a) as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights and remedies generally and (b) as such
enforcement may be limited by general principles of equity,
regardless of whether enforcement is sought in a proceeding
at law or in equity;
(viii) the Registration Statement has become
effective under the Securities Act, no stop order suspending
its effectiveness has been issued and no proceedings for
that purpose are, to the knowledge of such counsel, pending
before or contemplated by the Commission;
(ix) to the best of such counsel's knowledge, the
Company is not in violation of its certificate of
incorporation or by-laws, except for such violations that
would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole;
17
(x) to the best of such counsel's knowledge, none
of the Subsidiaries is in violation of its respective
certificate of incorporation or by-laws, except for such
violations that would not have a material adverse effect on
the Company and its Subsidiaries, taken as a whole, and
neither the Company nor any of its Subsidiaries is in
default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any
other agreement, indenture or instrument material to the
condition of the business of the Company and its
Subsidiaries, taken as a whole, to which the Company or any
of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries or any of their respective
properties are bound;
(xi) the execution, delivery and performance by the
Company of this Agreement, the Securities and the Indenture
and compliance by the Company with all the provisions hereof
and thereof will not, to the best of such counsel's
knowledge based solely upon due inquiry of responsible
officers of the Company, (A) require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except
such as may be required under the Securities Act, the Trust
Indenture Act or state securities or Blue Sky laws or by the
National Association of Securities Dealers, Inc.), except
where the failure to obtain such consents, approvals,
authorizations or other orders would not have a material
adverse effect on the Company and its Subsidiaries, taken as
a whole; (B) conflict with or constitute a breach of any of
the terms or provisions of the certificate of incorporation
or by-laws of the Company or any of its Subsidiaries; (C)
violate or conflict with any laws, administrative
regulations or, to the best of such counsel's knowledge,
rulings or court decrees applicable to the Company or any of
its Subsidiaries or their respective properties except for
such violations or conflicts that would not have a material
adverse effect on the Company and its Subsidiaries, taken as
a whole; or (D) to the best of such counsel's knowledge,
conflict with or constitute a breach of any of the terms or
provisions of, or a default under, any agreement, indenture
or other instrument material to the condition of the
business of the Company and its Subsidiaries, taken as a
whole, to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries or
any of their respective properties are bound;
(xii) to the best of such counsel's knowledge, the
Company and each of its Subsidiaries has such permits,
licenses, franchises and authorizations (collectively,
"PERMITS") of and from, and has made such declarations and
filings with, governmental or regulatory authorities,
including without limitation, state regulatory organization,
as are necessary to own, lease and operate its respective
properties and to conduct its business in the manner
described or incorporated by reference in the Prospectus,
except where the failure to obtain such permits or make such
declarations and filings would not have a material adverse
effect on the
18
Company and its Subsidiaries, taken as a whole; to the best
of such counsel's knowledge, the Company and each of its
Subsidiaries has fulfilled and performed all of its
obligations with respect to such permits, except where
failure to do so would not have a material adverse effect on
the Company and its Subsidiaries, taken as a whole, and no
event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or
results in any other impairment of the rights of the holder
of any such permit, except where such revocation,
termination or impairment would not have a material adverse
effect on the Company and its Subsidiaries, taken as a
whole, subject, in each case, to such qualifications as may
be set forth or incorporated by reference in the Prospectus;
and, to the best of such counsel's knowledge, except as
described or incorporated by reference in the Prospectus,
such permits contain no restrictions that are materially
burdensome to the Company or any of its Subsidiaries;
(xiii) to the best of such counsel's knowledge, all
leases to which the Company or any of its Subsidiaries is a
party are valid and binding and no default has occurred or
is continuing thereunder which might result in any material
adverse change in the business, prospects, financial
condition or results of operation of the Company and its
Subsidiaries, taken as a whole, and the Company and its
Subsidiaries enjoy peaceful and undisturbed possession under
all such leases to which any of them is a party as lessee
with such exceptions as do not materially interfere with the
use made by the Company or such Subsidiary;
(xiv) the statements (A) in the Prospectus under
the captions "Description of Notes," "Description of Debt
Securities," "Plan of Distribution" and "Underwriting," (B)
incorporated by reference in the Prospectus from Item 3 of
Part I of the Company's most recent Annual Report on Form
10-K, if any, for the most recently completed fiscal year of
the Company, (C) incorporated by reference in the Prospectus
from Item 1 of Part II of the Company's Quarterly Reports on
Form 10-Q, if any, filed since such Annual Report, (D)
incorporated by reference in the Prospectus from Item 5 of
the Company's Current Reports on Form 8-K, if any, filed
since such Annual Report and (E) in the Registration
Statement in Item 15 of Part II, insofar as such statements
constitute a summary of legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings;
(xv) to the best of such counsel's knowledge, based
solely upon due inquiry of responsible officers of the
Company, there is no legal or governmental proceeding
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective
property is subject which is required to be described or
incorporated by reference in the Registration Statement or
the Prospectus and is not so described or incorporated by
reference, or of any contract
19
or other document which is required to be described or
incorporated by reference in the Registration Statement or
the Prospectus or is required to be filed as an exhibit to
the Registration Statement which is not described or filed
or incorporated by reference as required;
(xvi) the Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended;
(xvii) to the best of such counsel's knowledge,
after due inquiry of responsible officers of the Company, no
holder of any security of the Company has any right to
require registration of shares of common stock or any other
security of the Company except as disclosed or incorporated
by reference in the Prospectus;
(xviii) each document incorporated by reference in
the Registration Statement and the Prospectus (except for
the financial statements included therein as to which such
counsel need express no opinion) complied as to form when
filed with the Commission in all material respects with the
Exchange Act; and
(xix) (1) the Registration Statement and the
Prospectus and any supplement or amendment thereto (except
for financial statements, schedules and other financial
data, as to which no opinion need be expressed) comply as to
form in all material respects with the Securities Act, and
(2) nothing has come to such counsel's attention that would
lead such counsel to believe that (except for financial
statements, schedules and other financial data, as aforesaid
and except for the part of the Registration Statement that
constitutes the Form T-1) the Registration Statement and the
prospectus included therein at the time the Registration
Statement became effective contained any 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, as amended
or supplemented, if applicable (except for financial
statements, schedules and other financial data, as
aforesaid) contained any untrue statement of a material fact
or omitted 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. In
giving such opinion with respect to the matters covered by
clause (xix) such counsel may state that his opinion and
belief are based upon his participation in the preparation
of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check
or verification except as specified.
(f) On the Closing Date Xxxxxx, Xxxxxx & Xxxxxxxxx, counsel
to the Underwriters, shall have furnished to the Underwriters their
opinion, dated the Closing Date in form and substance satisfactory to
the Underwriters as to the matters referred to in
20
clauses (v), (vi), (vii), (viii), (xiv) (but only with respect to the
statements under the caption "Description of Notes," "Description of
Debt Securities," "Plan of Distribution" and "Underwriting") and
(xix) of the foregoing paragraph (e) and to the effect that such
counsel is of the opinion ascribed to it in the Prospectus under the
caption "Certain United States Federal Income Tax Considerations." In
giving such opinion with respect to the matters covered by clause
(xix) such counsel may state that their opinion and belief are based
upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without
independent check or verification except as specified.
(g) You shall have received a letter on and as of the
Closing Date, in form and substance satisfactory to you, from KPMG
Peat Marwick LLC, independent public accountants, with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus and substantially in
the form and substance of the letter delivered to you by KPMG Peat
Marwick LLC on the date of this Agreement.
(h) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the
Company at or prior to the Closing Date.
9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by
the parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) any outbreak or escalation of hostilities or other national
or international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus,
(ii) the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the
Chicago Board of Trade or the Nasdaq National Market or limitation on prices
for securities or other instruments on any such exchange or the Nasdaq
National Market, (iii) the suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which
in your opinion materially and adversely affects, or will materially and
adversely affect, the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in
21
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Securities, which it or they have agreed to purchase hereunder on such date
and the aggregate number of Securities which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase is
not more than one-tenth of the aggregate principal amount of Securities to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the aggregate principal
amount of Securities set forth opposite its name in Schedule I and II bears to
the aggregate principal amount of Securities which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed
or refused to purchase on such date; provided that in no event shall the
aggregate principal amount of Securities which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 9
by an amount in excess of one-ninth of such Securities without the written
consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs in
more than one-tenth of the aggregate principal amount of Securities to be
purchased by all Underwriters and arrangements satisfactory to you and the
Company for purchase of such Securities are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Xxxxxxxxx,
Xxxxxx & Xxxxxxxx, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx X. Xxxx, and (b) if to any Underwriter or to you, to you c/x
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any case to such
other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors and
of the several Underwriters set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery
of and payment for the Securities, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter
or by or on behalf of the Company, the officers or directors of the Company or
any controlling person of the
22
Company, (ii) acceptance of the Securities and payment for them hereunder and
(iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by them.
If this Agreement shall be terminated by the Company because of any
failure or refusal on the part of an Underwriter or Underwriters to comply
with the terms or to fulfill any of the conditions of this Agreement, the
defaulting Underwriter agrees to reimburse the several Underwriters and the
Company for all out-of-pocket expenses (including the fees and disbursements
of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from any of the several Underwriters merely because of
such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
23
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President/Treasurer
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION,
As the sole U.S. Underwriter named on Schedule I hereto
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
XXXXXXXXX, XXXXXX & XXXXXXXX INTERNATIONAL
BANQUE NATIONALE DE PARIS LONDON BRANCH
BANQUE PARIBAS
CHASE MANHATTAN INTERNATIONAL LIMITED
CITIBANK INTERNATIONAL PLC
COMMERZBANK AKTIENGESELLSCHAFT
CREDIT LYONNAIS
DEUTSCHE BANK AG LONDON
SOCIETE GENERALE XXXXXXX XXXXXXXX SECURITIES LIMITED
UBS LIMITED
DRESDNER BANK AKTIENGESELLSCHAFT
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
SALOMON BROTHERS INTERNATIONAL LIMITED
Acting severally and on behalf of themselves as the
International Managers named in Schedule II hereto
By: XXXXXXXXX, XXXXXX & XXXXXXXX INTERNATIONAL,
By: /s/ Xxx Xxxx
-------------------------------
Name: Xxx Xxxx
Title: Director and Authorized Signatory
24
SCHEDULE I
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
Xxxxxxxxx Xxxxxx & Xxxxxxxx US $ 65 million
Securities Corporation
25
SCHEDULE II
Principal Amount of
International Managers Securities to be Purchased
---------------------- --------------------------
Xxxxxxxxx Xxxxxx & Xxxxxxxx International.....................US $ 150 million
Banque National de Paris London Branch........................US $ 10 million
Banque Paribas................................................US $ 12 million
Chase Manhattan International Limited.........................US $ 10 million
Citibank International plc....................................US $ 10 million
Commerzbank Aktiengesellschaft................................US $ 12 million
Credit Lyonnais...............................................US $ 10 million
Deutsche Bank AG London.......................................US $ 24 million
Societe Generale Xxxxxxx Xxxxxxxx Securities Limited..........US $ 12 million
UBS Limited...................................................US $ 10 million
Dresdner Bank Aktiengesellschaft..............................US $ 5 million
Xxxxxxx Xxxxx International...................................US $ 5 million
Xxxxxx Xxxxxxx & Co. International Limited....................US $ 5 million
PaineWebber International (U.K.) Ltd..........................US $ 5 million
Salomon Brothers International Limited........................US $ 5 million
Total............US $ 285 MILLION
26
EXHIBIT A
SPECIFIC NON-U.S. RESTRICTIONS
In addition to the provisions of the Underwriting Agreement requiring
compliance with all applicable laws and regulations in each jurisdiction, the
following specific restrictions are applicable.
Australia. Each Underwriter acknowledges that no prospectus in
relation to the Securities has been lodged with or registered by the
Australian Securities Commission. Accordingly, each Underwriter represents,
warrants and agrees to and with the Company that such Underwriter and its
affiliates (i) have not, directly or indirectly, offered for subscription or
purchase or issued invitations to subscribe for or buy nor have they sold any
Securities, (ii) will not, directly or indirectly, offer for subscription or
purchase or issue invitations to subscribe for or buy nor will they sell any
Securities, and (iii) have not distributed any Prospectus or other document
inviting applications or offers to subscribe for or buy any Securities or
offering any Securities for subscription or purchase, in each case in
Australia or to any resident of Australia (including corporations and other
entities incorporated under the laws of Australia but not including a
permanent establishment of such corporation or other entity located outside
Australia) other than if any of the Securities are to be offered in Australia
by way of an excluded issue of securities, an excluded offer of securities for
subscription or purchase, or an excluded invitation to subscribe for or buy
securities in compliance with the Corporations Law. In addition, each
Underwriter represents, warrants and agrees to and with the Company that such
Underwriter and its affiliates, after the initial distribution of any
Securities, will not (directly or indirectly) offer for subscription or
purchase, or issue invitations to subscribe for, or buy or sell, the
Securities or distribute any draft or definitive document in relation to any
such offer, invitation, purchase or sale in Australia, except in compliance
with the Corporations Law, the Corporations Regulations and any other
applicable laws.
Belgium. Each Underwriter acknowledges that no issue of Securities or
the Prospectus has been filed with, or submitted for approval to, the
Commission for Banking and Finance in the Kingdom of Belgium. Accordingly,
each Underwriter represents, warrants and agrees to and with the Company that
such Underwriter and its affiliates (i) have not distributed, and will not
distribute, the Prospectus to the public in the Kingdom of Belgium, (ii) have
not publicly offered, and will not publicly offer, Securities for sale in the
Kingdom of Belgium and (iii) have not taken, and will not take, any steps that
would constitute or result in a public offering of Securities in the Kingdom
of Belgium.
Canada. Each Underwriter represents, warrants and agrees to and with
the Company that such Underwriter and its affiliates (i) will offer Securities
for sale directly and through other investment dealers and brokers only as
permitted by applicable securities laws of Canada, upon the terms set forth in
the Prospectus and in this Agreement, (ii) will not solicit offers to purchase
or sell Securities so as to require registration thereof or filing of a
prospectus with respect thereto under the laws of any jurisdiction, including,
without limitation, the United States of America, and (iii) will require each
other investment dealer and broker to agree with such Underwriter not to so
solicit or sell.
27
China. Each Underwriter acknowledges that the Securities have not and
will not be registered under the relevant laws of the People's Republic of
China. Accordingly, each Underwriter represents, warrants and agrees to and
with the Company that such Underwriter and its affiliates have not made, and
will not make, any offer, promotion, solicitation for sales or sale of or for,
as the case may be, any Securities in the People's Republic of China.
France. Each Underwriter represents, warrants and agrees to and with
the Company that the Securities will be issued outside France and that such
Underwriter and its affiliates have not offered or sold, and will not offer or
sell, directly or indirectly, any Securities to the public in France, and the
Prospectus or any other offering material relating to such Securities will not
be distributed, and such Underwriter will not cause the Prospectus or such
other material to be distributed, to the public in France.
Germany. Each Underwriter represents, warrants and agrees to and with
the Company that such Underwriter and its affiliates have not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer or
sell in Germany, by means of any document, any Securities (i) other than for
an aggregate purchase price per purchaser of at least DM 80,000 (or the
foreign currency equivalent) or such other amount as may be stipulated from
time to time by applicable German law or (ii) other than in accordance with
the provisions of the German Securities Prospectus Act of 13th December, 1990,
as amended, or any other laws applicable in Germany governing the issue,
offering and sale of securities.
Hong Kong. Each Underwriter represents, warrants and agrees to and
with the Company that such Underwriter and its affiliates have not, directly
or indirectly, offered or sold and will not, directly or indirectly, offer or
sell in Hong Kong, by means of any document, any Securities other than to
persons whose ordinary business it is to buy or sell shares or debentures,
whether as principal or agent, or in circumstances which do not constitute an
offer to the public within the meaning of the Companies Ordinance (Cap. 32) of
Hong Kong; each Underwriter represents, warrants and agrees to and with the
Company that, unless they are persons who are permitted to do so under the
securities laws of Hong Kong, such Underwriter and its affiliates have not
issued, or had in their possession for the purposes of issuing, and they will
not issue, or have in their possession for the purposes of issuing, any
advertisement, invitation or document relating to the Securities other than
with respect to Securities intended to be disposed of to persons outside Hong
Kong or to persons whose business involves the acquisition, disposal, or
holding of securities, whether as principal or as agent.
Italy. Each Underwriter acknowledges that no offer or sale of
Securities in Italy to the public at large or distribution of the Prospectus
or of any other offering material has been or will be made. Each Underwriter
also represents, warrants and agrees to and with the Company that such
Underwriter and its affiliates (i) have not offered or sold and will not offer
or sell in Italy, by means of any distribution channel, any Securities other
than to persons or entities which qualify by law as professional investors,
and (ii) have complied and will comply with all relevant provisions in force
at the time with respect to anything done by them in Italy in relation to such
Securities.
28
Japan. Each Underwriter represents, warrants and agrees to and with
the Company that such Underwriter and its affiliates have not offered or sold,
and will not offer or sell, directly or indirectly, any of the Securities in
Japan or to any resident of Japan or to any person for reoffering or resale,
directly or indirectly, in Japan or to any resident of Japan except in
compliance with, or pursuant to an exemption from, the registration
requirements of the Securities and Exchange Law available thereunder and in
compliance with the other relevant laws of Japan.
Netherlands. Each Underwriter represents, warrants and agrees to and
with the Company that such Underwriter and its affiliates (i) have not offered
or sold, and will not offer or sell, Securities and (ii) have not distributed,
and will not distribute, the Prospectus, in each case to any person or entity
in the Netherlands other than natural persons and/or legal entities which
trade or invest in securities in the course of their profession or business
(which includes banks, investment banks, pension funds, insurance companies,
securities firms, investment institutions and other entities, including,
without limitation, treasuries and finance companies of large enterprises
which trade or invest in securities). The foregoing restrictions will not
apply to any offer or sale of Securities in the Netherlands in respect of
which (i) the denomination is in excess of Dutch Guilders 100,000 or the
equivalent thereof in other currencies or currency units, (ii) another
exemption specified in the Securities Transactions Supervision Act, as amended
from time to time ("STSA"), or any of its implementing regulations applies and
the requirements applicable to such exemption are complied with or (iii) the
prohibition contained in Article 3 sub-section 1 of the STSA does not apply.
New Zealand. Each Underwriter represents, warrants and agrees to and
with the Company that such Underwriter and its affiliates (i) have not offered
or sold, and will not offer or sell, directly or indirectly, any Securities
and (ii) have not distributed and will not distribute, directly or indirectly,
any offering materials or advertisement in relation to any offer of
Securities, in each case in New Zealand other than (x) to persons whose
principal business is the investment of money or who, in the course of and for
the purposes of their business, habitually invest money or who in all
circumstances can properly be regarded as having been selected otherwise than
as members of the public or (y) in other circumstances where there is no
contravention of the Securities Act 1978 of New Zealand (or any statutory
modification or reenactment of, or statutory substitution, for the Securities
Act 1978 of New Zealand).
Portugal. Each Underwriter represents, warrants and agrees to and
with the Company that offers and sales, direct or indirect, of Securities have
not been and will not be made in Portugal except pursuant to an exemption from
the registration requirements of the Portuguese Stock Exchange Law available
thereunder, and in compliance with other relevant laws of Portugal.
Singapore. Each Underwriter acknowledges that the Prospectus has not
been registered as a prospectus with the Registrar of Companies in Singapore.
Accordingly, each Underwriter represents, warrants and agrees to and with the
Company that such Underwriter and its affiliates have not offered or sold, and
will not offer or sell, any Securities, nor will they circulate or distribute
the Prospectus or any other offering document or material relating to the
Securities, directly or indirectly, to the public or any member of the public
in Singapore other than (i) to an
29
institutional investor or other person specified in Section 106C of the
Companies Act, Chapter 50 of Singapore (the "SINGAPORE COMPANIES ACT"), (ii)
to a sophisticated investor, and in accordance with the conditions, specified
in Section 106D of the Singapore Companies Act or (iii) otherwise pursuant to,
and in accordance with the conditions of, any other applicable provision of
the Singapore Companies Act.
Spain. The Prospectus has not been registered with the Comision
Nacional del Xxxxxxx de Valores. Accordingly, each Underwriter represents,
warrants and agrees that the Prospectus has not been and will not be
distributed in the Kingdom of Spain to any person. Each Underwriter
represents, warrants and agrees to and with the Company that such Underwriter
and its affiliates have not offered or sold and will not offer or sell any
Securities to the public in Spain and have not made and will not make any kind
of advertisement of the Securities to the public in Spain, except according to
Spanish regulations regarding public offerings of securities (Ofertas publicas
de venta de valores). Each Underwriter also acknowledges that the offering in
Spain of Securities with a maturity in excess of eighteen months if (x)
zero-coupon Securities, (y) the explicit interest rate is lower than the
minimum rate set by the Spanish government at such time or (z) interest is due
in installments less often than once a year, is subject to the prior approval
of the Direccion General del Tesoro y Politica Financiera.
Sweden. Each Underwriter represents, warrants and agrees to and with
the Company that such Underwriter and its affiliates (i) have not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer or
sell in Sweden any Securities by way of public offer, and (ii) have not
offered or sold and will not offer or sell any Securities to any investor in
Sweden unless the minimum purchase by such investor is to be at least Swedish
kronor 300,000 or the equivalent thereof in other currencies or currency units
in aggregate principal amount of such Securities.
Switzerland. Each Underwriter that directly or indirectly, offers or
sells in Switzerland, by means of any document, any Securities represents,
warrants and agrees to and with the Company that it is a bank domiciled in
Switzerland that is regulated under Article 8 of the Federal Law on Bank and
Savings Banks of 1934 (as amended) (which includes a branch or subsidiary
located in Switzerland of a foreign bank).
Taiwan. Each Underwriter acknowledges that the Securities have not
and will not be registered under the Securities and Exchange Law of the
Republic of China. Accordingly, each Underwriter represents, warrants and
agrees to and with the Company that such Underwriter and its affiliates have
not made, and will not make, any offer, promotion, solicitation for sales or
sale of or for, as the case may be, any Securities in Taiwan.
United Kingdom. Each Underwriter represents, warrants and agrees to
and with the Company that (i) such Underwriter has not offered or sold
Securities that have a maturity of one year or more and, prior to six months
after the issue date of such Securities, will not offer or sell any such
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) such Underwriter has complied and
will
30
comply with all applicable provisions of the Financial Services Act of 1986
with respect to anything done by them in relation to the Securities in, from
or otherwise involving the United Kingdom, and (iii) such Underwriter has only
issued or passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with an issue of Securities to a person
who is of a kind described in Article 11(3) of the Financial Services Act of
1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to
whom such document may otherwise lawfully be issued or passed on.
31
