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EXHIBIT 1
November ,1995
$500,000,000
XXXXXX XXXXXXX CORPORATION
(a New York Corporation)
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Warrants
UNDERWRITING AGREEMENT
XXXXXX BROTHERS INC.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Xxxxxx Xxxxxxx Corporation, a New York corporation (the
"Company"), proposes to issue and sell up to $500,000,000 of a combination of
the Company's (i) debt securities, consisting of debentures, notes or other
unsecured evidences of indebtedness (the "Debt Securities"), which may be
either senior debt securities or subordinated debt securities, (ii) shares of
preferred stock, no par value (the "Preferred Stock"), which may be issued in
the form of depositary receipts (the "Depositary Shares") representing a
fraction of a share of Preferred Stock, (iii) shares of common stock, $1.00 par
value (the "Common Stock" and, together with the Preferred Stock, the "Stock"),
and (iv) warrants to purchase securities of the Company as shall be designated
by the Company at the time of any offering of such warrants (the "Warrants" and
together with the Debt Securities, the Preferred Stock, the Depositary Shares,
the Common Stock and the Warrants, the "Offered Securities"), in one or more
offerings on the terms and conditions determined at the time of sale. The Debt
Securities will be issued pursuant to an indenture dated as of November __,
1995 (the "Indenture") between the
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Company and Xxxxxx Trust and Savings Bank as trustee (the "Trustee). The
Depositary Shares will be issued pursuant to the terms of a Deposit Agreement
(the "Deposit Agreement") to be entered into among the Company, the depositary
named in such agreement (the "Depositary"), and the holders from time to time
of Depositary Shares issued thereunder. The Depositary Shares will be
evidenced by depositary receipts (the "Depositary Receipts") issued pursuant to
the Deposit Agreement. The shares of the Company's Preferred Stock relating to
the Depositary Shares are hereinafter referred to as the "Underlying Preferred
Shares." The Warrants will be issued pursuant to the provisions of one or more
Warrant Agreements (each a "Warrant Agreement" and collectively, the "Warrant
Agreements") between the Company and the Warrant Agent named in each such
agreement (the "Warrant Agent").
From time to time, the Company may enter into one or more
terms agreements (each a "Terms Agreement") that provide for the sale of such
designated Offered Securities to, and the purchase and offering thereof by, the
underwriter or underwriters named therein (the "Underwriters" or "you", which
terms shall include the underwriter or underwriters named therein whether
acting alone in the sale of Offered Securities or as members of an underwriting
syndicate) and the provisions set forth herein (except for provisions which
relate to securities other than Offered Securities designated in the applicable
Terms Agreement) shall be incorporated by reference in any such Terms
Agreement. The applicable Terms Agreement, including the provisions
incorporated therein by reference, is herein referred to as "this Agreement."
1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No.
33-61809), including a prospectus relating to the Offered
Securities of the Company for the registration of such
securities under the United States Securities Act of 1933, as
amended (the "Securities Act"), has (i) been prepared by the
Company in material conformity with the requirements of the
Securities Act and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange
Commission
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(the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effec-
tive under the Securities Act; and, if the Offered Securities
are Debt Securities, the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Copies of such registration statement and
any amendments thereto have been delivered by the Company to
you. As used in this Agreement, "Effective Date" means the
date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Registration Statement"
means the registration statement as amended to the date of
this Agreement including all documents incorporated by
reference or deemed to be incorporated by reference therein
and the exhibits thereto; "Basic Prospectus" means the
prospectus included in the Registration Statement;
"Preliminary Prospectus" means any preliminary form of
Prospectus (as defined herein) specifically relating to
designated Offered Securities, in the form first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424 of the Rules and Regulations; "Prospectus Supplement"
means any prospectus supplement specifically relating to
designated Offered Securities, in the form first filed with,
or transmitted for filing to, the Commission pursuant to Rule
424 under the Securities Act; "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement except that
if such Basic Prospectus is amended or supplemented on or
prior to the date on which the Prospectus Supplement was first
filed pursuant to Rule 424, the term "Prospectus" shall refer
to the Basic Prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement; "Basic Prospectus,"
"Prospectus", "Preliminary Prospectus" and "Prospectus
Supplement" shall include in each case the documents, if any,
filed by the Company with the Commission pursuant to the
United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference therein; and
"supplement" and "amendment", shall
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be deemed to refer to and include any documents incorporated
by reference pursuant to Item 12 of Form S-3 under the
Securities Act that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant
to the Exchange Act. Any reference to any amendment to the
Registration Statement shall be deemed to include any annual
report of the Company filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective
Date that is incorporated by reference in the Registration
Statement.
(b) The Registration Statement conforms in all
material respects, and the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all material
respects to the requirements of the Securities Act and the
Rules and Regulations thereunder and do not and will not, as
of the applicable Effective Date (as to the Registration
Statement and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and any amendment or
supplement thereto) 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
case of the Prospectus, in light of the circumstances in which
they were made), not misleading; provided, however, that no
representation or warranty is made as to information contained
in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter specifically for use in the Registration Statement
or the Prospectus.
(c) If the Offered Securities are Debt
Securities: The Indenture conforms in all material respects
to the requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder.
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(d) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, when they were
filed with the Commission, conformed in all material respects
with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder, and, when read together with the
Prospectus on said dates, none of such documents contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein, not misleading; and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and, when read together with the
Prospectus on said dates, will not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading.
(e) The Company and each of its significant
subsidiaries as such term is defined in Rule 405 of the Rules
and Regulations and identified on Schedule II hereto (each a
"Significant Subsidiary") have been duly incorporated and are
validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of
their respective businesses requires such qualification except
where the failure to be so qualified and in good standing
would not have a material adverse effect on the consolidated
financial condition, shareholders' equity, results of
operations or business of the Company and its subsidiaries,
taken as a whole, and where so qualified have all corporate
power and authority necessary to own, lease or operate their
respective prop-
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erties and to conduct the businesses in which they are engaged
as described in the Prospectus.
(f) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in the Prospectus; and all of
the issued and outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized
and issued and are fully paid and non-assessable and (except
for directors' qualifying shares and as set forth in the
Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(g) If the Offered Securities are Debt
Securities: The Debt Securities have been duly and validly
authorized by the Company and, when duly executed, issued and
delivered by the Company, and authenticated by the Trustee
pursuant to the provisions of the Indenture, against payment
therefor as provided in this Agreement, will constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company
in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) or an implied covenant of good faith and fair dealing;
and the Debt Securities, when issued and delivered, will
conform in all material respects to the description thereof
contained in the Prospectus.
(h) If the Offered Securities are Debt
Securities: The Indenture has been duly authorized by the
Company, and when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Trustee)
and de-
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livered by the Company will constitute a valid and legally
binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law) or an implied covenant of good faith and fair dealing;
and the Indenture conforms in all material respects to the
description thereof contained in the Prospectus.
(i) If the Offered Securities are shares of
Preferred Stock: The shares of any Preferred Stock to be
issued and sold by the Company to the Underwriters have been
duly and validly authorized, and when issued and delivered
against payment therefor as provided in this Agreement, will
be duly and validly issued, fully paid and non-assessable;
and, when issued and delivered, such Preferred Stock will
conform in all material respects to the description thereof
contained in the Prospectus.
(j) If the Offered Securities are Depository
Shares: The deposit of any Underlying Preferred Shares by the
Company in accordance with the Deposit Agreement has been duly
authorized and, when Depositary Shares are issued and
delivered in accordance with the terms of this Agreement, the
Depositary Shares will be validly issued, fully paid and
non-assessable; and, when issued and delivered, such
Depositary Shares will conform in all material respects to the
description thereof contained in the Prospectus.
(k) If the Offered Securities are Depository
Shares: Assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary, each Depositary Share
will represent the interest described in the Prospectus in a
validly issued, outstanding, fully paid and non-assessable
Underlying Preferred Share; assuming due execution and
delivery of the
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Depositary Receipts by the Depositary pursuant to the Deposit
Agreement, the Depositary Receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit
Agreement; and the Deposit Agreement conforms in all material
respects to the description thereof contained in the
Prospectus.
(l) If the Offered Securities are shares of
Common Stock: The unissued shares of Common Stock have been
duly and validly authorized and, when issued and delivered
against payment therefor as provided in this Agreement, such
shares will be duly and validly issued, fully paid and
non-assessable and will conform in all material respects to
the description thereof contained in the Prospectus.
(m) If the Offered Securities are convertible or
exchangeable into shares of Common Stock or Preferred Stock:
Such Stock of the Company reserved for issuance upon
conversion of or exchange for the Company's other securities
or exercise of the Company's Warrants have been validly
authorized and reserved for such purpose; and, if and when any
of the Company's other securities are converted into or
exchanged for shares of Stock of the Company in accordance
with the conversion or exchange rights so provided, or
purchased in accordance with the purchase rights so provided,
such shares of Stock will be validly issued, fully paid and
non-assessable and delivered in accordance with the terms of
the Company's Restated Certificate of Incorporation (the
"Certificate"); and when issued and delivered, such Stock will
conform in all material respects to the descriptions thereof
contained in the Prospectus.
(n) If the Offered Securities are shares of
Stock: Except as described or incorporated by reference in
the Registration Statement or the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase,
nor any restrictions upon the voting or transfer of any shares
of the Stock, including any Stock issuable upon conversion or
exchange of any Offered
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Securities, in each case, pursuant to the Company's
Certificate or by-laws or any agreement or other instrument to
which the Company is a party.
(o) If the Offered Securities are Warrants: The
Warrants have been duly authorized and, upon payment therefor,
as provided in this Agreement, will be validly issued and
outstanding and will constitute legally binding obligations of
the Company, and upon exercise of the Warrants pursuant to the
related Warrant Agreement, if exercisable for Debt Securities,
will be entitled to the benefits of the Indenture; and when
issued and delivered, such Warrants will conform in all
material respects to the description thereof contained in the
Prospectus.
(p) This Agreement has been duly authorized,
executed and delivered by the Company.
(q) If the Offered Securities are Depository
Shares: The Deposit Agreement has been duly authorized by the
Company and when duly executed by the proper officers of the
Company (assuming due execution and delivery by the
Depositary)and delivered by the Company, will constitute a
valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good
faith and fair dealing.
(r) If the Offered Securities are Warrants: The
Warrant Agreement has been duly authorized, executed and
delivered by the Company and (assuming due execution and
delivery by the Warrant Agent) will constitute a valid and
legally binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to the
effects of bankruptcy,
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insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether
considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing; and the Warrant
Agreement conforms in all material respects to the description
thereof contained in the Prospectus.
(s) The execution, delivery and performance of
this Agreement, the Indenture (if the Offered Securi- ties are
Debt Securities), the Deposit Agreement (if the Offered
Securities are Depository Shares) and the Warrant Agreement
(if the Offered Securities are Warrants) by the Company, and
the consummation of the transactions contemplated hereby and
thereby, and the issuance and delivery of the Offered
Securities will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under any indenture, lien, charge or encumbrance
upon any property or mortgage, deed of trust, loan agreement,
or other agreement or instrument to which the Company or any
of its Significant Subsidiaries is a party or by which it or
any of them is bound or to which any of the property or assets
of the Company or any of its Significant Subsidiaries is
subject except for such conflicts, breaches, violations or
defaults which would not have a material adverse effect on the
consolidated financial condition, shareholders' equity,
results of operations or business of the Company and its
subsidiaries taken as a whole, nor will such action result in
any violation of the provisions of the charter or by- laws of
the Company or any of its Significant Subsidiaries or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their
material properties or assets; and except for the registration
of the Offered Securities under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act,
and such consents, approvals, authorizations, regis-
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trations or qualifications as may be required under the
Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Offered
Securities by the Underwriters, no consent, approval,
authorization or order of, or filing, registration or
qualification of or with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement, the Indenture (if the Offered
Securities are Debt Securities), the Deposit Agreement (if the
Offered Securities are Depositary Shares) or the Warrant
Agreement (if the Offered Securities are Warrants) by the
Company and the consummation by the Company of the
transactions contemplated hereby and thereby.
(t) Except as described or incorporated by
reference in the Registration Statement or the Prospectus,
there are no agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Securities Act.
(u) If the Offered Securities are shares of
Common Stock, except as described in the Prospectus, the
Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of any
Prospectus relating to the offering of Common Stock, including
any sale pursuant to Rule 144A under, or Regulations D or S
of, the Securities Act, other than shares issued pursuant to
employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding
options, rights, or warrants.
(v) Neither the Company nor any of its
subsidiaries has sustained, since the date of
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the latest financial statements included or incorporated by
reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any
change in the capital stock or long- term debt of the Company
or any of its subsidiaries or any material adverse change, or
any development involving a prospective material adverse
change, in or affecting the general affairs, management,
financial condition, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the
Prospectus.
(w) Coopers & Xxxxxxx L.L.P., who has certified
certain financial statements of the Company, Deloitte & Touche
LLP who has certified certain financial statements of
Pyro-Pacific Operating Company, and KPMG Wideri Oy Ab, who has
certified certain financial statements of the power generation
business of X. Xxxxxxxx Corporation ("Pyropower"),
respectively, whose reports appear in the Prospectus or are
incorporated by reference therein, and each of whom has
delivered the initial letters referred to in Section 7(h)
hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(x) The financial statements (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by
reference in the Prospectus present in all material respects
fairly the financial condition and results of operations of
the entities purported to be shown thereby at the dates and
for the periods indicated; and have been prepared in
conformity with United States generally accepted accounting
principles or International Accounting Standards, as the case
may be, applied on a consis-
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tent basis throughout the periods involved, except as
otherwise expressly set forth therein.
(y) Except as described in the Registration
Statement, Prospectus or in documents incorporated therein by
reference, there are no legal or governmental proceedings
pending to which the Company or any of its Significant
Subsidiaries is a party or of which any material property or
assets of the Company or any of its Significant Subsidiaries
is the subject which is required to be disclosed in the
Registration Statement, Prospectus or in documents
incorporated therein by reference or which would have a
material adverse effect on the consolidated financial
condition, shareholders' equity, results of operations or
business of the Company and its subsidiaries, taken as a
whole, or the transactions contemplated by this Agreement; and
to the Company's knowledge, no such proceedings are threatened
by governmental authorities or threatened by others.
(z) There are no contracts or other documents
which are required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference
under the Rules and Regulations.
(aa) Neither the Company nor any of its
Significant Subsidiaries is (i) in violation of its charter or
by-laws, or (ii) in default in any material respect, and no
event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan
agreement or other agreement to which the Company or any of
its Significant Subsidiaries is a party or by which it or any
of them is or may be bound or to which any of the properties
or assets of the Company or any of its subsidiaries is
subject,
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except for such default which would not have a material
adverse effect on the consolidated financial condition,
shareholders' equity, results of operations or business of the
Company and its subsidiaries taken as a whole or (iii) in
violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which the
Company or any of its subsidiaries or its or any of their
property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the
ownership of its or their property or to the conduct of its or
their business, except for such violation or failure which
would not have a material adverse effect on the condition
(financial or otherwise), shareholders' equity, results of
operations or business of the Company and its subsidiaries
taken as a whole.
(ab) Neither the Company nor, to the Company's
knowledge, any of its subsidiaries, any director, officer,
agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, except for such
violations which would not have a material adverse effect on
the consolidated financial condition, shareholders' equity,
results of operations or business of the Company and its
subsidiaries taken as a whole.
(ac) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 (the "Investment Act") and the
rules and regulations of the Commission thereunder.
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(ad) Neither the BBB nor Baa2 senior debt rating
assigned to the Company in 1995 by Standard & Poor's
Corporation and by Xxxxx'x Investor Services, Inc.,
respectively, has been lowered or, to the Company's knowledge,
threatened to be lowered by either such rating agency nor, to
the Company's knowledge, has it been placed under surveillance
or review by either such rating agency.
(ae) Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for
the Underwriters pursuant to this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
2. Purchase of the Offered Securities by the Underwriters.
On the basis of the representations and warranties contained in, and subject to
the terms and conditions set forth herein, the Company agrees to sell to the
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at the price and/or principal amount, as the case
may be, set forth in the Terms Agreement attached hereto as Schedule I and in
the respective amounts and number of shares, as the case may be, of the
designated Offered Securities set forth opposite the name of each such
Underwriter in Exhibit A to such Terms Agreement.
In addition, the Company may specify in any Terms Agreement
relating to any offering of the designated Stock that the Company thereby
grants to the Underwriters an option to purchase up to the number of shares of
additional Stock (the "Option Stock") in the amount set forth in such Terms
Agreement. The option thereby granted is exercisable as provided in Section 4
hereof, shall expire at such time as is set forth in the applicable Terms
Agreement, and will be granted solely for the purpose of covering
over-allotments which may be made in connection with the offering and sale of
the Stock. Shares of the Option Stock shall be purchased severally for the
account of the Underwriters in proportion to the number of shares of Stock set
opposite the name of such Underwriters in Exhibit A of such Terms Agreement.
The respective purchase obligations of each Underwriter with respect to the
Option Stock shall be adjusted by the managing Underwriter so that no
Underwriter
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shall be obligated to purchase Option Stock other than in 100 share amounts.
3. Offering of the Offered Securities by the
Underwriters. The several Underwriters propose to offer the Offered Securities
for sale upon the terms and conditions set forth in the Prospectus and any
amendment or supplement thereto relating to the Offered Securities.
4. Delivery of and Payment for the Offered Securities.
Delivery of and payment for the Offered Securities shall be made at such
location as may be agreed upon by the Underwriters and the Company at
10:00 a.m. New York City time, on the third business day following the date of
this Agreement, or at such other time and date as shall be agreed upon (each
such date and time of payment and delivery being herein called the "Closing
Date") in the manner set forth in the applicable Terms Agreement. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Offered Securities shall be registered in such
names and in such denominations as the Underwriters shall request in writing
not less than two full business days prior to the Closing Date. For the
purpose of expediting the checking and packaging of the certificates for the
Stock, the Company shall make the certificates representing the Stock available
for inspection by the Underwriters in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Closing Date.
The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities that will be deposited with,
or on behalf of, a Depositary, or its nominee, identified in the Prospectus
Supplement relating to such series. In such a case, the manner of delivery of
such global securities will be set forth in the applicable Terms Agreement.
At any time on or before the thirtieth day after the date of
any Terms Agreement relating to designated Stock and Option Stock, the option
granted in Section 2 may be exercised by written notice being given to the
Company by Xxxxxx Brothers Inc., on behalf of the Underwriters. Such notice
shall set forth the aggregate number of shares of Option Stock as to which the
option is being exercised,
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the names in which the shares of Option Stock are to be registered, the
denominations in which the shares of Option Stock are to be issued and the date
and time, as determined by the Underwriters, when the shares of Option Stock
are to be delivered; provided, however, that this date and time shall not be
earlier than the Closing Date nor earlier than the second business day after
the date on which the option shall have been exercised nor later than the third
business day after the date on which the option shall have been exercised. The
date and time the shares of Option Stock are delivered are sometimes referred
to as the "Option Closing Date".
Delivery of and payment for the Option Stock shall be made at
the place specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by agreement between
the Underwriters and the Company at 10:00 a.m., New York City time, on the
Option Closing Date.) On the Option Closing Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Underwriters for the account of each Underwriter against payment to or upon the
order of the Company of the purchase price in the manner set forth in the
applicable Terms Agreement. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Option Stock
shall be registered in such names and in such denominations as the Underwriters
shall request in the aforesaid notice. For the purpose of expediting the
checking and packaging of the certificates for the Option Stock, the Company
shall make the certificates representing the Option Stock available for
inspection by the Underwriters in New York, New York, not later than 2:00 p.m.,
New York City time, on the business day prior to the Option Closing Date.
5. Further Agreements of the Company. The Company
agrees:
(a) To prepare the Prospectus in a form
reasonably approved by the Underwriters and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission's close of business on the
second business day following the execution and delivery of
this Agreement or, if applicable, such
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earlier time as may be required by Rule 430A(a)(3) under the
Securities Act; to make no further amendment or supplement to
the Registration Statement or to the Prospectus prior to the
applicable Closing Date except as permitted herein; to advise
the Underwriters, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof; 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 subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with
the offering or sale of the Offered Securities; to advise the
Underwriters, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the
qualification of the Offered Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly upon request by the
representatives named in any applicable Terms Agreement (the
"Representatives") of the Underwriters to the Underwriters and
to counsel for the Underwriters a copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the
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19
Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Underwriters such
number of the following documents as the Representa- tives of
the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement, the Indenture,
the Deposit Agreement, the Warrant Agreements and such other
exhibits as the Underwriters may reasonably request), (ii)
each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus and (iii) any document incorporated by
reference in the Prospectus (excluding exhibits thereto); and,
if the delivery of a prospectus is required at any time after
the Effective Date in connection with the offering or sale of
the Offered Securities and if at such time any events shall
have occurred 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 any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary to amend or supplement the Prospectus (or
to file under the Exchange Act any document incorporated by
reference in the Prospectus) in order to comply with the
Securities Act or the Exchange Act, to notify the Underwriters
and, upon the reasonable request of the Representatives of the
Underwriters, to file such document and to prepare and furnish
without charge to each Underwriter as many copies as the
Representatives of the Underwriters may from time to time
reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the judgment of
the Company
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and the Underwriters, be required by the Securities Act or
requested by the Commission;
(e) Prior to filing with the Commission any
amendment to the Registration Statement or supplement to the
Prospectus, and promptly after filing with the Commission any
document incorporated by reference in the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Underwriters and counsel for
the Underwriters;
(f) As soon as practicable after the date of
this Agreement and every Terms Agreement relating to
designated Offered Securities, to make generally available to
its security holders an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the
applicable Closing Date, to furnish to the Underwriters,
copies of all materials furnished by the Company to all of its
shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock and
any other Offered Securities may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rules or
regulations of the Commission thereunder;
(h) Promptly from time to time to take such
action as the Underwriters may reasonably request to qualify
the Offered Securities for offering and sale under the
securities laws of such jurisdictions as the Underwriters may
reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Offered Securities provided, however, that
in connection therewith the Compa-
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ny shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction where it is not so qualified;
(i) For a period of 90 days after the date of the
Prospectus relating to designated Stock, the Company will
not, directly or indirectly, offer for sale, sell or otherwise
dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any
shares of Common Stock or any security convertible or
exchangeable for Common Stock (other than shares issuable
pursuant to employee benefit plans, qualified stock option
plans or other employee compensations plans then existing or
pursuant to then currently outstanding options, warrants or
rights), or sell or grant options, rights or warrants with
respect to any shares (other than the grant of options
pursuant to option plans existing on the date thereof) without
the prior written consent of the Underwriters or their
representative;
(j) In the event designated Offered Securities
are to be listed on a national securities exchange, to apply
for any listing of such designated Offered Securities on any
national securities exchange and to use its best efforts to
complete that listing, subject only to official notice of
issuance, prior to the relevant Closing Date; and
(k) To apply the net proceeds from the sale of the
Offered Securities being sold by the Company as set forth in
the Prospectus.
6. Expenses. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Offered
Securities and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
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each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs, if any,
printing this Agreement and any other related documents in connection with the
offering, purchase, sale and delivery of the Offered Securities; (g) any
applicable listing or other fees; (h) the fees and expenses of qualifying the
Offered Securities under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and distributing a Blue Sky
Memorandum and a Legal Investment Survey (including related fees and expenses
of counsel to the Underwriters); provided that the expenses and fees in this
clause (h) shall not exceed $10,000 in the aggregate; (i) any fees charged by
securities rating services for rating any Offered Securities and (j) all other
costs and expenses incident to the performance of the obligations of the
Company under this Agreement; provided that, except as provided in this Section
6 and in Section 11, the Underwriters shall pay the costs and expenses of their
counsel, any transfer taxes on the Offered Securities which they may sell, the
expenses of advertising any offering of the Offered Securities made by the
Underwriters and all other costs and expenses of the Underwriters and their
counsel not enumerated in this Section 6.
7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for any Offered Securities
are subject to the accuracy, when made, and on each Closing Date, of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder and under any Terms
Agreement, and to each of the following additional terms and conditions:
(a) At the applicable Closing Date, the
Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to
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23
the Representatives of the Underwriter's reasonable
satisfaction.
(b) No Underwriter, shall have discovered and
disclosed to the Company on or prior to any Closing Date that
the Registration Statement or the Prospectus or any amendment
or supplement thereto contains an untrue statement of a fact
that, in the opinion of counsel for the Underwriters, is
material or omits to state a fact that, in the opinion of such
counsel, is material and is required to be stated therein or
is necessary to make the statements therein, (in the case of
the Prospectus, in light of the circumstances in which they
were made), not misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form, validity and
enforceability of this Agreement, any Terms Agreement, the
Indenture, the Deposit Agreement, the Warrant Agreements, the
Offered Securities, the Registration Statement and the
Prospectus, and all other legal matters relating to this
Agreement and any Terms Agreement and the transactions
contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Xxxxxx X. X'Xxxxx, General Counsel to the
Company, shall have furnished to the Underwriters his opinion,
as general counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to counsel for the Underwriters to the
effect that:
(i) The Company's Significant
Subsidiaries have been duly incorporated and are
validly existing as corporations in good standing
under the laws of their respective jurisdictions of
incorporation; and the Company is duly qualified to
do
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24
business and is in good standing as a foreign
corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its
respective business requires such qualification and
where the failure to be so qualified and in good
standing would have a material and adverse effect on
the consolidated financial condition, shareholders'
equity, results of operations or business of the
Company and its subsidiaries, taken as a whole, and
where so qualified have all corporate power and
authority necessary to own, lease or operate their
respective properties and to conduct the businesses
in which they are engaged as described or
incorporated by reference in the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and
all of the issued and outstanding shares of capital
stock of the Company have been duly and validly
authorized and issued, are fully paid and
non-assessable and conform in all material respects
to the description thereof contained in the
Prospectus; and all of the issued and outstanding
shares of capital stock of each Significant
Subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and
non-assessable and (except for directors' qualifying
shares) and, as set forth in the Prospectus, are
owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or
claims;
(iii) To such counsel's knowledge, there are
no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to
the Registration Statement or incorporated therein by
reference under the Rules and Regulations;
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25
(iv) The documents incorporated by
reference in the Prospectus (other than the financial
statements and related schedules therein, as to
which such counsel need express no opinion), when
they were filed with the Commission complied as to
form in all material respects with the requirements
of the Exchange Act and the rules and regulations of
the Commission thereunder; and
(v) To such counsel's knowledge and
except as described or incorporated by reference in
the Registration Statement or the Prospectus, there
are no agreements or understandings between the
Company and any person granting such person the right
to require the Company to file a registration
statement under the Securities Act with respect to
any securities of the Company owned or to be owned by
such person or to require the Company to include such
securities in the securities registered pursuant to
the Registration Statement or in any securities being
registered pursuant to any other registration
statement filed by the Company under the Securities
Act.
(vi) To such counsel's knowledge, and
other than as set forth in the Registration
Statement, the Prospectus, or any documents
incorporated by reference, there are no legal or
governmental proceedings pending to which the Company
or any of its Significant Subsidiaries is a party or
of which any material property or assets of the
Company or any of its Significant Subsidiaries is the
subject which, if determined adversely to the Company
or any of its Significant Subsidiaries, would have a
material adverse effect on the consolidated financial
condition, shareholders' equity, results of
operations, business or prospects of the Company and
its subsidiaries taken as a whole; and to such
counsel's knowledge, no such proceedings are threat-
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26
ened by governmental authorities or threatened by
others;
(vii) The issue and sale of the Offered
Securities being delivered on the Closing Date by the
Company and the compliance by the Company with all of
the provisions of this Agreement, the Indenture, the
Deposit Agreement and the Warrant Agreement and the
consummation of the transactions contemplated hereby
and thereby, will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or
other agreement known to such counsel to which the
Company or any of the Significant Subsidiaries is a
party or by which the Company or any of such
Significant Subsidiaries is bound or to which any of
the property or assets of the Company or any of its
Significant Subsidiaries is subject except for such
conflicts, breaches, violations or defaults which
would not have a material adverse effect on the
consolidated financial condition, shareholders'
equity, results of operations or business of the
Company and its subsidiaries taken as a whole nor
will such actions result in any violation of the
provisions of any State or Federal statute or any
order, rule or regulation known to such counsel of
any court or governmental agency or body having
jurisdiction over the Company or any of its
Significant Subsidiaries or any of their material
properties or assets.
(e) White & Case, counsel to the Company, shall
have furnished to the Underwriters their opinion, as counsel
to the Company, addressed to the Underwriters and dated the
Closing Date, in form and substance reasonably satisfactory to
counsel for the Underwriters, to the effect that:
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27
(i) The Company has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of New York;
(ii) There are no preemptive or other
rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of any
shares of the Stock, including any Stock issuable
upon conversion or exchange of any Offered
Securities, in each case pursuant to the Company's
Certificate or by-laws or any agreement or other
instrument to which the Company is a party known to
such counsel;
(iii) If the Offered Securities are Debt
Securities: The Offered Debt Securities have been
duly and validly authorized by the Company and, when
duly executed, issued and delivered by the Company,
and authenticated by the Trustee pursuant to the
provisions of the Indenture, against payment therefor
as provided in this Agreement, will constitute valid
and legally binding obligations of the Company
entitled to the benefits of the Indenture and
enforceable against the Company in accordance with
their terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of
creditors' rights generally and by general equitable
principles (regardless of whether the issue of
enforceability is considered in a proceeding in
equity or at law) and the Debt Securities, when
issued and delivered, will conform in all material
respects to the description thereof contained in the
Prospectus;
(iv) If the Offered Securities are Debt
Securities: The Indenture has been duly authorized
by the Company, and when duly executed by the proper
officers of the Company (assuming due execution and
delivery by the Trustee) and delivered by the
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28
Company will constitute a valid and legally binding
obligation of the Company enforceable against the
Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally
and by general equitable principles (regardless of
whether the issue of enforceability is considered in
a proceeding in equity or at law) and the Indenture
conforms in all material respects to the description
thereof contained in the Prospectus;
(v) If the Offered Securities are
Preferred Stock: The shares of Offered Preferred
Stock to be issued and sold by the Company to the
Underwriters have been duly and validly authorized,
and when issued and delivered against payment
therefor as provided in this Agreement, will be duly
and validly issued, fully paid and non-assessable;
and, when issued and delivered, the Preferred Stock
will conform in all material respects to the
description thereof contained in the Prospectus;
(vi) If the Offered Securities are
Depository Shares: The deposit of any Underlying
Preferred Shares by the Company in accordance with
any Deposit Agreement has been duly authorized and,
when the Depositary Shares are issued and delivered
in accordance with the terms of this Agreement, the
Depositary Shares will be validly issued, fully paid
and non-assessable; and when issued and delivered,
the Depositary Shares will conform in all material
respects to the description thereof contained in the
Prospectus;
(vii) If the Offered Securities are
Depository Shares: Assuming due authorization,
execution and delivery of the Deposit Agreement by
the Depositary, each Depositary Share will represent
the interest
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29
described in the Prospectus in a validly issued,
outstanding, fully paid and non-assessable Underlying
Preferred Share; assuming due execution and delivery
of the Depositary Receipts by the Depositary pursuant
to the Deposit Agreement, the Depositary Receipts
will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement; and
the Deposit Agreement conforms in all material
respects to the description thereof contained in the
Prospectus;
(viii) If the Offered Securities are shares
of Common Stock: The unissued shares of the Common
Stock have been duly and validly authorized and, when
issued and delivered against payment therefor as
provided in this Agreement, such shares will be duly
and validly issued, fully paid and non-assessable;
and the Common Stock will conform in all material
respects to the description thereof contained in the
Prospectus;
(ix) If the Offered Securities are
convertible or exchangeable into shares of Common
Stock or Preferred Stock: The shares of Stock of the
Company reserved for issuance upon conversion of or
exchange for the Company's other securities or
exercise of the Company's Warrants have been validly
authorized and reserved for such purpose; and, if and
when any of the Company's other securities are
converted or exchanged into shares of Stock of the
Company in accordance with the conversion or exchange
rights so provided, or purchased in accordance with
the purchase rights so provided, such Stock will be
validly issued, fully paid and non-assessable and
delivered in accordance with the terms of the
Company's Certificate; and when issued and delivered,
such Stock will conform in all material respects
to the descriptions thereof contained in the
Prospectus;
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30
(x) If the Offered Securities are
Warrants: The Warrants have been duly authorized and,
upon payment therefor, will be validly issued and
outstanding and will constitute legally binding
obligations of the Company and, upon exercise of the
Warrants pursuant to the related Warrant Agreement, if
exercisable for Debt Securities, will be entitled to
the benefits of the Indenture; and when issued and
delivered, such Warrants will conform in all material
respects to the description thereof contained in the
Prospectus;
(xi) This Agreement has been duly
authorized, executed and delivered by the Company;
(xii) If the Offered Securities are
Depository Shares: The Deposit Agreement has been
duly authorized, executed and delivered by the
Company and (assuming due execution and delivery by
the Depositary) constitutes a valid and legally
binding obligation of the Company enforceable in
accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally
and by general equitable principles (regardless of
whether the issue of enforceability is considered in
a proceeding in equity or at law);
(xiii) If the Offered Securities are
Warrants: The Warrant Agreements have been duly
authorized, executed and delivered by the Company and
(assuming due execution and delivery by the Warrant
Agent) constitute a valid and legally binding
obligations of the Company enforceable against the
Company in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally
and by general equitable principles (regardless of
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31
whether the issue of enforceability is considered in
a proceeding in equity or at law); and the Warrant
Agreements conform in all material respects as to
legal matters to the description thereof contained in
the Prospectus;
(xiv) The Company is not an "investment
company" within the meaning of such term under the
Investment Act and the rules and regulations of the
Commission thereunder;
(xv) The Registration Statement was
declared effective under the Securities Act and the
Inden- ture was qualified under the Trust Indenture
Act as of the date and time specified in such
opinion, the Prospectus was filed with the Commission
pursuant to subparagraph of Rule 424 specified in
such opinion on the date specified therein and no
stop order suspending the effectiveness of the
Registration Statement has been issued and, to the
knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission;
(xvi) The statements contained in the
Prospectus under the captions relating to the Offered
Securities insofar as they describe federal
statutes, rules and regulations, or portions thereof,
constitute accurate descriptions thereof in all
material respects;
(xvii) The Registration Statement, as of
the Effective Date, and the Prospectus, as of the
date it was filed with the Commission, and any
further amendments or supplements thereto made by the
Company prior to the applicable Closing Date (other
than the financial statements and related schedules
therein and all other financial and statistical data
included or incorporated by reference therein or
omitted therefrom and other than the T-1, as to which
such counsel need express no opinion)
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32
appears on its face to comply as to form in all
material respects with the requirements of the
Securities Act and the Rules and Regulations; and the
Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder; and
(xviii) The issue and sale of the Offered
Securities being delivered on the Closing Date by
the Company and the compliance by the Company with
all of the provisions of this Agreement, the
Indenture, the Deposit Agreement and the Warrant
Agreement and the consummation of the transactions
contemplated hereby and thereby, will not result in
any violation of the provisions of the charter or
by-laws of the Company or any New York State or U.S.
Federal statute or any order, rule or regulations
known to such counsel of any New York State or U.S.
Federal court or governmental agency or body having
jurisdiction over the Company; and, except for the
registration of the Offered Securities under the
Securities Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under the Exchange Act, the Trust
Indenture Act and applicable state securities laws in
connection with the purchase and distribution of the
Offered Securities by the Underwriters, no consent,
approval, authorization or order of, or filing or
registration with, any such court or governmental
agency or body is required for the execution delivery
and performance of this Agreement, the Indenture, the
Deposit Agreement and the Warrant Agreements by the
Company and the consummation by the Company of the
transactions contemplated hereby and thereby.
In rendering the opinions required by subsections (d) and (e)
of this section, Xxxxxx X. X'Xxxxx and Xxxxx & Xxxx, respectively, may
(i) state that their opinion is limited to matters governed by the
federal laws of the United States of America and the laws of
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33
the State of New York and (ii) rely (to the extent such counsel deems
proper and specifies in their opinion), as to matters involving the
application of laws covered by supporting opinion upon the opinion of
other counsel of good standing, provided that such other counsel is
reasonably satisfactory to counsel for the Underwriters and furnishes
a copy of its opinion to the Underwriters. In addition, Xxxxxx X.
X'Xxxxx, in rendering the opinions required by clauses (i) and (ii) of
Subsection (d) with respect to Significant Subsidiaries, may rely on
opinions rendered by counsel employed by such Significant
Subsidiaries.
Xxxxxx X. X'Xxxxx shall have furnished to the Underwriters a
written statement addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Underwriters, to the
effect that he has acted as counsel to the Company on a regular basis
and in connection with previous financing transactions. In addition,
each of Xxxxxx X. X'Xxxxx and Xxxxx & Case shall also have furnished
to the Underwriters written statements, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that such counsel has acted as counsel to
the Company in connection with the preparation of the Registration
Statement, and based on the foregoing, such counsel does not believe
that (I) the Registration Statement (other than the financial
statements and related schedules and all other financial and
statistical data included or incorporated by reference therein or
omitted therefrom, and other than the Form T-1, as to which such
counsel shall express no opinion or belief), as of the Effective Date,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus
(other than the financial statements and related schedules and all
other financial and statistical data included or incorporated by
reference therein or omitted therefrom, and other than the Form T-1,
as to which such counsel shall express no opinion or belief), as of
its date and the applicable Closing Date, contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or
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34
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (II) any
document incorporated by reference in the Prospectus (other than the
financial statements and related schedules and all other financial and
statistical data included or incorporated by reference therein or
omitted therefrom, and other than the Form T-1, as to which such
counsel shall express no opinion or belief) contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
foregoing opinion and statement may be qualified by statements to the
effect that (i) such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus except for the statements
made in the Prospectus under the captions relating to the designated
Offered Securities and, if applicable, "Federal Income Tax
Consequences", insofar as such statements relate to the Offered
Securities and concern legal matters and (ii) as to facts necessary to
the determination of materiality, such counsel is relying upon the
opinions of officers and other representatives of the Company.
(f) The Underwriters shall have received from
counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Offered Securities, the Registration Statement, the Prospectus
and other related matters as the Underwriters may reasonably
require.
(g) At the Closing Date, counsel for the
Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the
Offered Securities as contemplated herein and in each Terms
Agreement and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein and therein
contained.
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35
(h) At the time of execution of this Agreement
and each Terms Agreement, the Underwriters shall have received
from each of Coopers & Xxxxxxx L.L.P., with respect to the
Company, and KPMG, with respect to Pyropower, letters, in
form and substance satisfactory to the Underwriters, addressed
to the Underwriters and dated the date hereof and thereof (i)
confirming that they are independent public accountants with
respect to the Company and its subsidiaries within the meaning
of the Securities Act, (ii) stating, as of the date hereof and
thereof, (or with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date
not more than five days prior to the date hereof or thereof),
the conclusions and findings of such firm with respect to the
financial information and other matters as provided in SAS No.
72.
(i) With respect to the letters of Xxxxxxx &
Xxxxxxx L.L.P. and KPMG referred to in the preceding paragraph
and delivered to the Underwriters concurrently with the
execution of this Agreement (the "initial letter") and each
Terms Agreement, the Company shall have furnished to the
Underwriters letters (the "bring-down letters") of such
accountants, addressed to the Underwriters and dated the
Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as
of a date not more than five business days prior to the date
of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in
all material respects the
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conclusions and findings set forth in the initial letter.
(j) At each Closing Date, there shall not have
been, since the date hereof or since the respective dates as
of which information is given in the Registration Statement
and the Prospectus, any material adverse change in the
consolidated financial condition, stockholders' equity,
results of operations or business of the Company and its
subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, and the Company shall have
furnished to the Underwriters a certificate, dated the Closing
Date of its Chairman of the Board, its President or a Vice
President of the Company, on the one hand, and its chief
financial officer or its Treasurer, on the other hand, stating
that:
(i) The representations and warranties of
the Company in Section 1 are true and correct as of
such Closing Date; the Company has complied with all
its agreements contained in this Agreement and the
conditions set forth in Section 7(a) and 7(k) have
been fulfilled in each case, in all material
respects;
(ii) They have carefully examined the
Registration Statement and the Prospectus and in
their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include
any untrue statement of a material fact and did not
omit to state a material fact required to be stated
therein or necessary to make the statements therein,
(in the case of the Prospectus, in light of the
circumstances in which they were made) not
misleading, and (B) since the Effective Date no event
has occurred which should have been set forth or
incorporated by reference in a supplement or
amendment to the Registration Statement or the
Prospectus which has not been so set forth; and
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(iii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and, to the knowledge of the Company, no
proceedings for that purpose have been initiated or
threatened by the Commission.
(k) (i) Neither the Company nor any of its
Significant Subsidiaries shall have sustained since the
respective dates as of which information is given in the
Registration Statement or the Prospectus or in any document
incorporated by reference therein any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or
decree, otherwise than as set forth, contemplated or
incorporated by reference in the Prospectus or in any of the
documents incorporated by reference therein, or (ii) since
such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its
Significant Subsidiaries except as set forth in the letters
described in paragraphs (i) or (j) of this Section 7, or any
material change in the financial condition, shareholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated or incorporated by reference in the Prospectus or
in any of the documents incorporated by reference therein, the
effect of which, in any such case described in clause (i) or
(ii), is, in the reasonable judgment of the majority in
interest of the Underwriters, so material and adverse as to
make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Offered Securities
being delivered on such Closing Date on the terms and in the
manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, (i) no
downgrading shall have occurred in the rating accorded the
Company's securities by any "nationally recognized statistical
rating
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organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and
(ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's securities.
(m) Subsequent to the execution and delivery of
this Agreement there shall not have occurred any of the
following: (i) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange, the NASDAQ
National Market or in the over-the-counter market, or trading
in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having
jurisdiction, (ii) a general banking moratorium shall have
been declared by federal or New York state authorities (iii)
the United States shall have become engaged in hostilities,
there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general
economic or financial conditions (or such a material adverse
change in international conditions the effect of which on the
financial markets in the United States shall be such) as to
make it, in the reasonable judgment of a majority in interest
of the several Underwriters, impracticable or inadvisable to
proceed with the public offering or delivery of the Offered
Securities being delivered on such Closing Date on the terms
and in the manner con- templated in the Prospectus.
(n) The Underwriters shall have received from
each of the Company's directors and executive officers an
executed letter to the effect that for a period of 90 days
after the date of the Prospectus relating to designated Stock,
he or she will not, directly or indirectly, offer
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for sale, sell or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock or any
security convertible or exchangeable for Common Stock, or sell
or grant options, rights or warrants with respect to any
shares without the prior written consent of the Underwriters
or their representative.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters. The Company may rely on any waiver of such
conditions given by the Underwriters or counsel to the Underwriters as if given
by the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each such person, if any, who
controls any Underwriter, within the meaning of the Securities Act, from and
against any and all loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to any losses, claims,
damages, liabilities or actions relating to purchases and sales of the Offered
Securities), to which that Underwriter, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arise out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement or the Prospectus or
in any amendment or supplement thereto or (ii) the omission or alleged omission
to state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances in which they were
made) not misleading and shall reimburse each Underwriter and each such
officer, employee or con-
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trolling person within 30 days after receiving written demand therefor for any
legal or other expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arise out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through any
Underwriter by or on behalf of any Underwriter specifically for inclusion
therein; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect
to any Preliminary Prospectus to the extent that any such loss, claim, damage,
liability or any action in respect thereof of such Underwriter results from the
fact that such Underwriter sold Offered Securities to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented in any case where such delivery is
required by the Act if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus which was (i) identified
to such Underwriter at or prior to the earlier of the filing with the
Commission or the furnishing to such Underwriter of the Prospectus and (ii)
corrected in the Prospectus or in the Prospectus as then amended or
supplemented. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of
its directors, and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any lawsuits, claims, damages, liabilities or actions relating
to the purchases and sales of Offered Securities), to which the
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Company or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company
through the Underwriters by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified
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indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the indemnified
party under this Section 8 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof;
provided, however, if the defendants in any such action include both and the
indemnified party or parties and the indemnifying party and counsel for the
indemnifying party shall have reasonably concluded that there may be a conflict
of interest involved in the representation by such counsel by both the
indemnifying party and the indemnified party or parties or different defenses
available to the indemnifying party and the indemnified party, the indemnified
party or parties shall have the right to select separate counsel, reasonably
satisfactory to the indemnifying party, at the indemnifying party's expense,
and to participate in the defense of such action on behalf of such indemnified
party or parties (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one special counsel
representing the indemnified party or parties who are parties to such action).
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under
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Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the
Offered Securities 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 fault of the Company on the one hand and the Underwriters on the other
with respect to the statements or omissions which in such loss, claim, damage
or liability, or action in respect thereof, 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 with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Offering Securities purchased under this Agreement and any
applicable Terms Agreement (before deducting expenses) received by the Company
on the one hand, and the total underwriting discounts and commissions received
by the Underwriters with respect to the Offered Securities purchased under this
Agreement and any applicable Terms Agreement, on the other hand, bear to the
total gross proceeds from the offering of the Offered Securities under this
Agreement and any applicable Terms Agreement in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative 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 contributions
pursuant to this Section were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect
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thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm that the following
statements are correct and constitute information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus:
(i) the statements in the paragraph identified in Exhibit A attached to the
applicable Terms Agreement for the sale of designated Offered Securities
concerning stabilization and over-allotment by the Underwriters, (ii) the
statements with respect to the public offering of the Offered Securities by the
Underwriters set forth on the cover page of the Prospectus and (iii) the
statements in the paragraphs regarding the public offering of the Offered
Securities by the Underwriters and the statements made concerning concession,
allowance and reallowance, in each case set forth under the caption
"Underwriting" and as identified in Exhibit A attached to the applicable Terms
Agreement for the sale of designated Offered Securities.
9. Defaulting Underwriters. If on the applicable Closing
Date, any Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase (in addition to the amount of Offered Securities which such
Underwriters are obligated to purchase pursuant to Section 2) the Offered
Securities which the defaulting Underwriter agreed but failed to purchase on
such Closing
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Date in the respective proportions to the amount of Offered Securities set
opposite the names of each remaining non-defaulting Underwriter in Exhibit A to
the applicable Terms Agreement bears to the amount of the Offered Securities
set opposite the names of all the remaining non-defaulting Underwriters in
Exhibit A to the applicable Terms Agreement; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Offered Securities on such Closing Date if the total number of Offered
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase on such date exceeds 10% of the total amount of the Offered
Securities to be purchased on such Closing Date. If the foregoing maximum
percentage is exceeded, the remaining non-defaulting Underwriters, or those
other underwriters satisfactory to the Underwriters who so agree, shall have
the right, but shall not be obligated, to purchase, in such proportion as may
be agreed upon among them, all the Offered Securities to be purchased on such
Closing Date. If the foregoing maximum percentage is exceeded, the remaining
non-defaulting Underwriters which have agreed to purchase in the aggregate 50%
or more of the aggregate amount of Offered Securities (other than the Offered
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase on the Closing Date) may, at any time after 72 hours immediately
following the failure of the defaulting Underwriter or Underwriters to purchase
the Offered Securities set forth opposite the name of such Underwriter or
Underwriters, terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Sections 6 and 11. As
used in this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in
Exhibit A to any applicable Terms Agreement who, pursuant to this Section 9,
purchases Offered Securities which a defaulting Underwriter agreed but failed
to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Offered Securities of a defaulting or withdrawing Underwriter, either the
Underwriters or the Company may postpone the applicable Closing Date for up to
seven full business days in order to effect any changes that in reasonable the
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opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other
document or arrangement necessary to consummate the transactions described
herein.
10. Termination. Except as provided in the applicable
Prospectus Supplement, the obligations of the Underwriters hereunder may be
terminated by the Underwriters which have agreed to purchase in the aggregate
50% or more of the aggregate amount of Offered Securities by notice given to
and received by the Company prior to delivery of and payment for the Offered
Securities if, prior to that time, any of the events described in Sections
7(k), (l) and (m) shall have occurred or if the Underwriters shall decline to
purchase the Offered Securities as permitted by Section 9.
11. Reimbursement of Underwriters' Expenses. If the
Company shall fail to tender the Offered Securities for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company is not fulfilled (other than Section 7(m)), the Company
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with this Agreement and the proposed purchase of the Offered
Securities, and upon demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 9 by reason of
the default of one or more Underwriters, the Company shall not be obligated to
reimburse any defaulting Underwriter for any of its expenses incurred in
connection with this Agreement.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission c/x Xxxxxx
Brothers Inc., Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant
to Section 8(c), to the Director
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of Litigation, Office of the General Counsel, Xxxxxx Brothers
Inc., World Financial Center, 10th Floor, New York, NY 10285;
and
(b) if to the Company, shall be delivered or sent
by mail, telex or facsimile transmission to the ad- dress of
the Company set forth in the Registration Statement,
Attention: General Counsel; (Fax: (000) 000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Underwriters by Xxxxxx Brothers Inc.
13. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company, and their respective successors. This Agreement and the terms
and provisions hereof are for the sole benefit of only those persons, except
that (A) the representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for the benefit
of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (B) the indemnity agreement of
the Underwriters contained in Section 8(b) of this Agreement shall be deemed to
be for the benefit of the directors of the Company, officers of the Company and
any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for any
Offered Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
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15. Definition of the Term "Business Day". For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading.
16. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between
the Company and the Underwriters please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
XXXXXX XXXXXXX CORPORATION
By
---------------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
By
-------------------------------------
XXXXXX BROTHERS
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SCHEDULE I
TERMS AGREEMENT
51
SCHEDULE II
SIGNIFICANT SUBSIDIARIES
I. U.S. Domiciled Significant Subsidiaries
Xxxxxx Xxxxxxx Energy Corporation
Xxxxxx Xxxxxxx Energy International, Inc.
Xxxxxx Xxxxxxx Environmental Corporation
Xxxxxx Xxxxxxx International Corporation
Xxxxxx Xxxxxxx Power Systems, Inc.
Xxxxxx Xxxxxxx USA Corporation
Glitsch International, Inc.
Xxxxxxxx Pyropower Inc.
II. Foreign Significant Subsidiaries
Xxxxxx Xxxxxxx Limited
Xxxxxx Xxxxxxx Energy Ltd.
Xxxxxx Xxxxxxx Italiana, S.p.A.
Xxxxxx Xxxxxxx Iberia X.X.
Xxxxxx Xxxxxxx Energia, X.X.
Xxxxxx Xxxxxxx Energia OY
