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EXHIBIT 1
TARGETS
TARGETS TRUST [VI]
Targeted Growth Enhanced Terms Securities (TARGETS(Registered))
With Respect to the Common Stock of
Due on
guaranteed to the extent explained
in the Prospectus dated ,2000 by
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
FORM OF UNDERWRITING AGREEMENT
, 2000
XXXXXXX XXXXX XXXXXX INC.
As Representative of the
Several Underwriters
c/o XXXXXXX XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
TARGETS Trust [VI] (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(Registered))
(the "TARGETS") to [you, as underwriter] [the several underwriters named on
Schedule I hereto] (the "Underwriter[s]") [for whom you (the "Representative")
are acting as representative].
The TARGETS are to be issued pursuant to the terms of a declaration of
trust, dated as of , 2000, as amended and restated as of ,
2000 (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 respect to the Common Stock of , 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 , 2000 (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
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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, in
connection with your purchase of the TARGETS as the Underwriter[s].
1. Representations and Warranties. The Offerors represent and warrant to,
and agree with, you as set forth below in this Section 1.
(a) A registration statement on Form S-3 (File Nos. 333- and
333-71667) , including a form of 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 form of
prospectus may have been amended or supplemented from time to time prior to the
date of this Agreement; any such amendment to such registration statement was
so prepared and filed and any such amendment has become effective. A final
prospectus (the "Prospectus") relating to the Securities has been so prepared
and will be filed pursuant to Rule 424 under the Act. Copies of such
registration statement and form of prospectus, any such amendment or
supplement, the Prospectus 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 as amended or supplemented to the
date hereof, is hereinafter referred to as the "Registration Statement". 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 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 you or
on your behalf, 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.
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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 [you, as Underwriter, and you, as Underwriter, agree] [each Underwriter
and each Underwriter agrees, severally and not jointly], to purchase from the
Trust, at a purchase price of $ per TARGETS, plus accrued distributions,
if any, from , 2000, [ TARGETS] [the number of TARGETS set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
TARGETS increased as set forth in Section 8 hereof)]
(b) 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
[you, as Underwriter,] [the Underwriters] as compensation ("Underwriter[s]
Compensation") for [your] [their] arranging the investment of the proceeds
therein, on the Closing Date (as hereinafter defined), $o per TARGETS.
3. Delivery and Payment. Delivery of and payment for the TARGETS shall be
made at 10:00 AM, New York City time, on , 2000, or at such time on
such later date not more than three Business Days after the foregoing date as
you shall designate (such date and time of delivery and payment for the TARGETS
being herein referred to as the "Closing Date"). Delivery of the TARGETS shall
be made to [you, as Underwriter,] [the Representative] for [your] [the
respective] account[s] against payment by [you, as Underwriter,] [the several
Underwriters through the Representative] 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 you shall otherwise
instruct.
4. Agreements of the Offerors. The Offerors jointly and severally agree
with [you, as Underwriter,] [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 [you, as
Underwriter] [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 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
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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 [you, as
Underwriter,] [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 [you, as Underwriter,] [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 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 [you, as Underwriter,] [the Underwriters] for any
expenses (including fees and disbursements of counsel) incurred by [you] [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
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on the part of the Offerors to perform any agreement on its part to be
performed, or because any other condition of the Underwriter's [Underwriters']
obligations hereunder required to be fulfilled by the Offerors is not fulfilled,
the Company will reimburse [you, as Underwriter,] [the Underwriters] for all
reasonable out-of-pocket disbursements (including fees and disbursements of
counsel) incurred by [you, as Underwriter,] [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 Xxxxxxx Xxxxx Xxxxxx Inc.
5. Conditions of Underwriter's Obligations. The obligations of [you, as
Underwriter,] [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 [the] [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 [your] [the] judgment [of a majority in interest of the
Underwriters], 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 your judgment, 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 Xxxx
Xxxxxxxxxxxx, General Counsel of the Company and 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,
Xxxxxxxx, Xxxxx & Xxxxxxxx, special tax counsel to the Company and counsel to
the Offerors and the Trust, substantially in the form attached hereto as Exhibit
B.
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(e) You shall have received an opinion, dated the Closing Date, of
Xxxxxxx Xxxxxxxx & Xxxx, counsel to The Chase Manhattan Bank, substantially in
the form attached hereto as Exhibit C.
(f) You shall have received from Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx,
counsel for the Underwriter[s], such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the TARGETS, 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.
(g) 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
the Chairman of the Board, any Vice Chairman, any Vice President, the Treasurer
or the Deputy Treasurer 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 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.
(h) PricewaterhouseCoopers LLP 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.
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(i) 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
o.
(j) Prior to the Closing Date, the Company shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
6. Indemnification and Contribution. (a) Each of the Trust and the Company
will jointly and severally indemnify and hold harmless [you, as Underwriter,]
[each Underwriter] against any losses, claims, damages or liabilities, joint or
several, to which [you, as Underwriter,] [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 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 [you, as Underwriter,] [each Underwriter] for any legal or other
expenses reasonably incurred by [you][it] in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that the Offerors shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Offerors by or on behalf of [you, as Underwriter,] [any
Underwriter] specifically for use in the preparation thereof.
(b) [You, as Underwriter,] [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 [you, as Underwriter,] [any Underwriter] 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
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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 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 [you, as Underwriter,] [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 [you, as Underwriter,]
[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 [you, as Underwriter,] [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 Underwriter[s] Compensation received by [you, as
Underwriter,] [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 [you, as Underwriter,] [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 you, as Underwriter, agree
that it would not be just and equitable if contributions pursuant to this
subsection (d) were to be determined by pro rata allocation 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), [you, as Underwriter,] [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 [you, as
Underwriter,] [such Underwriter] [have] [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. 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).
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(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 terms and conditions, to each person, if any, who controls
[the] [any] Underwriter within the meaning of the Act or the Exchange Act; and
the obligations of [you, as Underwriter,] [the Underwriters] under this Section
6 shall be in addition to any liability which [you, as Underwriter,] [the
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 [you, as
Underwriter,] [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 [you, as Underwriter,] [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 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 aggregates more than
10% of the total principal amount 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 principal amount 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.]
[8.] [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,
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or (ii) any other condition of the [Underwriter's] [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.
[9.] [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 Underwriter,] [as
Representative of the several Underwriters,] care of Xxxxxxx Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division.
[10.] [11.] Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Trust and the Underwriter[s] 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.
[11.] [12.] Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[12.] [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 Underwriter[s].
Very truly yours,
TARGETS TRUST [VI]
By ____________________________________
as Regular Trustee
By ____________________________________
as Regular Trustee
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By ____________________________________
Name:
Title:
Confirmed as of the date first above mentioned
[on behalf of itself and the other several
Underwriters named in Schedule I hereto.]
XXXXXXX XXXXX XXXXXX INC., as [Underwriter]
[Representative of the Several Underwriters]
By ____________________________________
Name:
Title:
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