EXHIBIT 1
XXXXXX CO.
(a Delaware corporation)
UNDERWRITING AGREEMENT
[Date]
[Name and address of Underwriters
or Representatives]
Dear Sirs:
Xxxxxx Co., a Delaware corporation (the "Company"), proposes to
sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), (1) the principal amount of its senior debt
securities, if any, identified in Schedule I hereto (the "Senior
Securities"), to be issued under an Indenture dated as of November 1,
1995, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Senior Trustee"), as amended (said
Indenture, the "Senior Indenture"); (2) the principal amount of its
subordinated debt securities, if any, identified in Schedule I hereto
(the "Subordinated Securities" and together with the Senior Securities
being collectively referred to herein as the "Debt Securities") to be
issued under an Indenture dated of November 1, 1995, between the
Company and The Chase Manhattan Bank (National Association), as
trustee (the "Subordinated Trustee", and together with the Senior
Trustee, the "Trustees") (said Indenture, the "Subordinated
Indenture") (the Senior Indenture and the Subordinated Indenture being
collectively referred to herein as the "Indentures"); (3) the
preferred stock of the Company, if any, identified in Schedule I
hereto (the "Preferred Stock"); (4) the common stock, par value $1.00
per share, of the Company (the "Common Stock"), including, if then in
existence, the related preferred stock purchase rights (the "Rights")
provided for in the Rights Agreement dated as of October 20, 1988, as
amended, between the Company and The First Chicago Trust Company as
rights agent thereunder (the "Rights Agreement") (all references
herein to the Common Stock shall include the Rights unless the context
indicates otherwise), if any, as indicated in Schedule I hereto. The
Debt Securities, Preferred Stock and Common Stock described in
Schedule I hereto shall collectively be referred to herein as the
"Purchased Securities." The Company may also grant to the
Underwriters an option to purchase up to such additional number of
Purchased Securities as is specified in Schedule I hereto (the "Option
Securities"). The Purchased Securities and Option Securities shall be
collectively referred to herein as the "Securities." If the firm or
firms listed in Schedule II hereto include only the firm or firms
described above as Representatives, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to
such firm or firms.
SECTION 1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-
3 (No.33-64225) relating to the Securities and the offering
thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act") and has filed such
amendments thereto as may have been required to the date hereof.
Such registration statement, as amended, has been declared
effective by the Commission, and the Indentures have each been
qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The Company proposes to file with the
Commission pursuant to Rule 424(b) under the Act a supplement to
the form of prospectus included in such registration statement
relating to the Securities and the plan of distribution thereof
and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth
therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in the form
in which it appears in the Registration Statement is hereinafter
called the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus". Any preliminary form of the Final Prospectus which
has heretofore been filed pursuant to Rule 424(b) is hereinafter
called the "Preliminary Final Prospectus". Any reference herein
to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case
may be, deemed to be incorporated therein by reference.
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(b) On the effective date of the Registration Statement, as
of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the
Commission and at the applicable Closing Date, (i) the
Registration Statement, as amended as of any such time, any Final
Prospectus, as amended or supplemented as of any such time, and
the Indentures will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act and
the Exchange Act and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) the Final
Prospectus, as amended or supplemented as of any such time, did
not and will not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
the Final Prospectus or any amendment thereof or supplement
thereto made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter, or on
behalf of any Underwriter by the Representatives, expressly for
use in the Registration Statement or the Final Prospectus.
(c) The documents incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3 under the Act, at the
time they were or hereafter are filed or last amended, as the
case may be, with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and
the rules and regulations thereunder and, when read together and
with the other information in the Basic Prospectus and the Final
Prospectus, at the time the Registration Statement and any
amendments thereto became or become effective, at the date of
this Agreement and at each Closing Date, did not and 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, in the light of the circumstances under
which they were or are made, not misleading.
(d) The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in
the Registration Statement and the Final Prospectus are
independent public accountants as required by the Act and the
rules and regulations thereunder.
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(e) The financial statements (other than quarterly or other
unaudited interim financial statements) included or incorporated
by reference in the Registration Statement and the Final
Prospectus present fairly the financial position of the Company
and its consolidated subsidiaries as at the dates indicated and
the results of their operations for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
(except as otherwise stated therein) basis; the supporting
schedules included or incorporated by reference in the
Registration Statement present fairly the information required to
be stated therein; and the Company's ratios of earnings to fixed
charges (actual and, if any, pro forma) included in the Final
Prospectus and in Exhibit 12 to the Registration Statement have
been calculated in compliance with Item 503(d) of Regulation S-K
of the Commission.
(f) Since the respective dates as to which information is
given in the Registration Statement and the Final Prospectus,
except as otherwise stated therein (including information
contained in documents subsequently incorporated by reference in
the Registration Statement or the Final Prospectus), (1) there
has been no material adverse change in the condition, financial
or otherwise, or in the earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; and
(2) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise.
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Final Prospectus;
and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of the
Company and its subsidiaries considered as one enterprise.
(h) Each Significant Subsidiary of the Company (as that
term is used in Rule 405 of the Act Regulations) has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Final Prospectus and is duly
qualified as a foreign corporation to transact business and is in
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good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify would not in the aggregate have a material adverse
effect on the business or assets of the Company and its
subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each Significant Subsidiary has been
duly authorized and validly issued and is fully paid and
nonassessable and is owned by the Company (other than Anchor
Hocking Corporation), free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim.
(i) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Final Prospectus under the
caption "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations or agreements referred to in the
Final Prospectus); the certificate for each outstanding share of
Common Stock also represents one Right per share (if the Rights
are then in existence), the issued and outstanding shares of
Common Stock have been duly authorized and validly issued and are
fully paid and nonassessable; and (if the Rights Agreement is
then in effect) the outstanding Rights have been duly authorized
and validly issued under the Rights Agreement and are entitled to
the benefits thereof.
(j) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract,
indenture, joint venture agreement, mortgage, loan agreement,
note, lease or other instrument to which it or its property may
be bound except when such default would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and the
execution and delivery of this Agreement, the Indentures, and the
Securities and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary
corporate action and will not conflict with or constitute a
breach of, or a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Significant Subsidiaries
pursuant to any contract, indenture, joint venture agreement,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its Significant Subsidiaries is a
party or by which any of them may be bound, or to which any of
the property or assets of the Company or any of its Significant
Subsidiaries is subject, 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 applicable
law, administrative regulation or administrative or court decree.
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(k) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any of its subsidiaries, which is
required to be disclosed in the Registration Statement or the
Final Prospectus (other than as disclosed therein), or which
might materially and adversely affect the consummation of this
Agreement or, except in cases in which such consequences are
remote, which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise, or, except in cases in which such consequences
are remote, which might materially and adversely affect the
properties or assets thereof; all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or
of which any of their property is the subject which are not
described in the Registration Statement or the Final Prospectus,
including ordinary routine litigation incidental to the Company's
business, are, considered in the aggregate, not material to the
Company and its subsidiaries considered as one enterprise; and
there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the Act or by the rules and regulations
thereunder which have not been so filed.
(l) No authorization, approval or consent of any court or
governmental authority or agency is required for the consummation
by the Company of the transactions contemplated by this
Agreement, except such as may be required under the Act or the
rules and regulations thereunder or state securities laws for
the Securities and the qualification of the Indentures under the
Trust Indenture Act.
(m) This Agreement has been duly authorized, executed and
delivered by the Company.
(n) In the case of an offering of Debt Securities, the
applicable Indenture has been duly and validly authorized,
executed and delivered by the Company and is substantially in the
form filed or incorporated by reference, as the case may be, as
an exhibit to the Registration Statement at the time the
Registration Statement became effective; the applicable Indenture
has been duly qualified under the Trust Indenture Act; and,
assuming due authorization, execution and delivery by the
Trustee, each of the applicable Indenture constitutes a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its respective terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
the Debt Securities are in the form contemplated by the
applicable Indenture and the Debt Securities have been duly and
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validly authorized by the Company and, when executed by the
proper officers of the Company, and authenticated in accordance
with the provisions of the applicable Indenture and in all cases
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of all of the Securities, will in each
case constitute a valid and binding obligation of the Company, be
convertible (in the case of those Subordinated Securities that by
their terms are so convertible) for shares of Common Stock or
other securities of the Company in accordance with their terms as
set forth in the Final Prospectus and will be entitled to the
benefits of the applicable Indenture enforceable against the
Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
if the Debt Securities are convertible into shares of Common
Stock or other securities of the Company, the shares of Common
Stock or other securities issuable upon such conversion will have
been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly
issued, fully paid (assuming the underlying Debt Securities have
been paid for) and nonassessable; such shares of Common Stock or
other securities will have been duly authorized and issued, will
be fully paid (assuming the underlying Debt Securities have been
paid for) and nonassessable and will conform to the description
thereof contained in the Final Prospectus; and the stockholders
of the Company have no preemptive rights with respect to any of
such shares of Common Stock or other securities issuable upon
such conversion.
(o) In the case of an offering of shares of Preferred
Stock, including any shares of Preferred Stock constituting
Option Securities, the shares of Preferred Stock being delivered
and paid for at such Closing Date have been duly authorized,
validly issued and are fully paid and nonassessable; and the
stockholders of the Company have no preemptive rights with
respect to any of such shares of Preferred Stock. If the shares
of Preferred Stock being delivered at such Closing Date are
convertible into shares of Common Stock or other securities of
the Company, such shares of Preferred Stock are convertible into
shares of Common Stock or other securities of the Company in
accordance with their terms; the shares of Common Stock or other
securities initially issuable upon conversion of such shares of
Preferred Stock will have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be duly issued, fully paid and nonassessable;
such shares of Common Stock will have been duly authorized and
issued, are fully paid (assuming the underlying shares of
Preferred Stock have been paid for) and nonassessable and conform
to the description thereof contained in the Final Prospectus.
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(p) In the case of an offering of shares of Common Stock,
including any shares of Common Stock constituting Option
Securities, the shares of Common Stock being delivered and paid
for at such Closing Date have been duly authorized, validly
issued and are fully paid and nonassessable; the related Rights
(if the Rights Agreement is then in effect) have been duly
authorized and validly issued under the Rights Agreement and are
entitled to the benefits thereof; neither the issuance of the
shares of Common Stock nor the issuance of the related Rights is
subject to preemptive rights; and the Company has reserved one
four-hundredth of a share of Series B Preferred for issuance upon
exercise of each Right.
(q) The Securities, the Rights, the Company's Junior
Participating Preferred Stock, Series B (the "Series B
Preferred") and, in the case of an offering of Debt Securities,
the applicable Indenture, will conform in all material respects
to the respective statements relating thereto contained in the
Final Prospectus and the Registration Statement and will be in
substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statement.
(r) The Senior Debt Securities rank and will rank on a
parity with all unsecured indebtedness (other than subordinated
indebtedness) of the Company that is outstanding on the date
hereof or that may be incurred hereafter, and senior to all
subordinated indebtedness of the Company that is outstanding on
the date hereof or that may be incurred hereafter.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering and sale of the Securities pursuant to
this Agreement shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from
the Company, at the respective purchase prices and upon the terms and
conditions set forth in Schedule I hereto the principal amount or
number of Purchased Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides
for the sale of Purchased Securities pursuant to delayed delivery
arrangements, the respective principal amount or number of such
Purchased Securities to be purchased by the Underwriters, shall be as
set forth in Schedule II hereto.
(b) The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the
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Representatives, for the account of the Underwriters, on the
applicable Closing Date, an amount as follows: (i) in the case of
Debt Securities, an amount equal to the percentage set forth in
Schedule II hereto of the principal amount of the Debt Securities,
(ii) in the case of Preferred Stock an amount equal to the percentage
set forth in Schedule II hereto of the aggregate liquidation
preference of Preferred Stock and (iii) in the case of Common Stock,
an amount as set forth in Schedule II hereto.
SECTION 3. Delivery and Payment. (a) Delivery of the
Securities shall be made at the office of______________________
____________________________________________ or at such other place as
shall be agreed upon by the Representatives and the Company, or at the
office of The Depositary Trust Company ("DTC") if the Securities are
issued in book-entry form, and payment for such Securities shall be
made at the above office of____________ ________________________ or at
such other place as shall be agreed upon by the Representatives and
the Company, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 11 hereof
(such date and time of delivery and payment for the Securities being
herein referred to in the case of Purchased Securities as the
"Purchased Securities Closing Date", in the case of Option Securities
as the "Option Securities Closing Date" and each such date being
referred to herein as a "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon
the order of the Company by certified or official bank check or checks
drawn on or by a Chicago Clearing House bank and payable in next day
funds or by such other means as are specified in Schedule I hereto.
(b) If specified in Schedule I hereto, the several Underwriters
will be compensated for their respective commitments and obligations
by separate payment to the Representatives for the respective accounts
of such Underwriters. Any such payment by the Company to the
Underwriters shall be made simultaneously with the payment by the
Underwriters to the Company of the purchase price of the Securities as
specified herein. Any separate payment of compensation by the Company
to the Underwriters shall be made by certified or official bank check
or checks drawn on or by a Chicago Clearing House bank and payable in
next day funds to the order of the Representatives or by such other
means as are specified in Schedule I hereto.
(c) If specified in Schedule I and the Securities are issued in
book-entry form, payment shall be made in immediately available funds
by fed wire. Certificates for the Securities shall be registered in
such names and in such denominations as the Representatives may
request not less than two full business days in advance of the
applicable Closing Date, provided that, if the Securities are in book-
entry form, the registration thereof, including the determination of
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the denominations thereof, shall be in accordance with the regulations
of DTC.
(d) The Company agrees to have the Securities available for
inspection, checking or packaging by the Representatives in New York,
New York, not later than 1:00 P.M., New York City time, on the
business day prior to the applicable Closing Date, unless the
Securities are in book-entry form.
SECTION 4. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Immediately following the execution of this Agreement,
the Company will prepare a Final Prospectus setting forth the
principal amount or number of Securities covered thereby and
their terms (not otherwise specified in the applicable Indenture
in the case of Debt Securities), the names of the Underwriters
and the principal amount or number of Securities which each
severally has agreed to purchase, the names of the
Representatives, the price at which the Securities are to be
purchased by the Underwriters from the Company, the initial
public offering price, the selling concession and reallowance, if
any, and such other information as the Representatives and the
Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the
Final Prospectus to the Commission for filing pursuant to Rule
424 of the Act and will furnish to the Underwriters named therein
as many copies of the Final Prospectus and any Preliminary Final
Prospectus as such Underwriters shall reasonably request.
(b) The Company will notify the Representatives
immediately, and promptly confirm the notice in writing, (i) of
the effectiveness of any amendment to the Registration Statement,
(ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Final Prospectus or any document to be
filed pursuant to the Exchange Act which will be incorporated by
reference into the Registration Statement or Final Prospectus,
(iii) of the receipt of any comments or other communications from
the Commission with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will
make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
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(c) For so long as a Final Prospectus is required to be
delivered in connection with the sale of Securities covered by
this Agreement, the Company will give the Representatives notice
of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Final Prospectus
(including through the filing of documents under the Exchange Act
or a prospectus filed pursuant to Rule 424(b) which differs from
the prospectus on file at the Commission), whether pursuant to
the Act, the Exchange Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement
or other documents proposed to be filed a reasonable time in
advance of filing, and will not file any such amendment or
supplement to which the Representatives or counsel for the
Underwriters shall reasonably object.
(d) The Company will deliver to the Representatives as many
signed and conformed copies of the registration statement (as
originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the Act) as the Representatives may
reasonably request, and will also deliver to the Representatives
a conformed copy of the Registration Statement and each amendment
thereto for each of the Underwriters.
(e) If any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Company, to further amend or
supplement the Final Prospectus in order that the Final
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or
prospective purchaser or if it shall be necessary, in the opinion
of either such counsel, at any such time to amend or supplement
the Registration Statement or the Final Prospectus in order to
comply with the requirements of the Act or rules and regulations
thereunder, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing
documents pursuant to the Exchange Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make
the Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities and any Debt Securities,
Common Stock or Preferred Stock which may be issuable pursuant to
the exercise or conversion, as the case may be, of Securities
offered by the Company, for offering and sale under the
applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may designate, and
will maintain such qualifications in effect for as long as may be
required for the distribution of the Securities. The Company
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will file such statements and reports as may be required by the
laws of each jurisdiction in which the Securities have been
qualified as provided above.
(g) With respect to each sale of Securities, the Company
will make generally available to its security holders as soon as
practicable, but not later than 60 days (or 90 days in the case
of periods which are a fiscal year of the Company) after the
close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158 under the Act) covering
twelve-month periods beginning, in each case, not later than the
first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement relating to such Securities that satisfies the
provisions of Section 11(a) of the Act and the rules and
regulations thereunder.
(h) The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the
Final Prospectus relating to such Securities under "Use of
Proceeds".
(i) The Company will use its best efforts to (i) arrange
for the listing of any Common Stock constituting Securities
hereunder or issuable upon conversion or exercise of any of the
Securities upon notice of issuance on the New York Stock
Exchange, Inc. or such other national securities exchanges on
which the Company's outstanding Common Stock is then listed and
(ii) list any other Securities on the exchanges, if any,
specified in Schedule I hereto.
(j) The Company, during the period when the Final
Prospectus is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act and the rules and
regulations thereunder.
(k) In the event that the Securities being issued and sold
pursuant to this Agreement are shares of Common Stock, for a
period of 90 days from the date of this Agreement, the Company
will not, without the Representatives' prior written consent,
directly or indirectly, sell, offer to sell, grant any option for
the sale of, enter into an agreement to sell, or otherwise
dispose of, any Securities to which this Agreement relates or
securities similar to such Securities, or any securities
convertible into or exercisable for any such Securities or any
such similar securities, except for Securities sold pursuant to
this Agreement, securities issued upon conversion of Securities
issued under this Agreement and shares of Common Stock issued
pursuant to employee benefit, executive compensation and dividend
reinvestment plans of the Company, and the Company will not file
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a registration statement under the Act with respect to any such
Securities or securities similar to such securities of the
Company held by others.
(l) In the event that the Securities being issued and sold
pursuant to this Agreement are Securities other than Common
Stock, for a period of 21 days from the date of this Agreement,
the Company will not, without the Representatives' prior written
consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, enter into an agreement to sell, or
otherwise dispose of, any Securities to which this Agreement
relates or securities similar to such Securities, or any
securities convertible into or exchangeable or exercisable for
any such Securities or any such similar securities, except for
Securities sold pursuant to this Agreement and securities issued
upon conversion of Securities issued under this Agreement, and
the Company will not file a registration statement under the Act
with respect to any such Securities or securities similar to such
securities of the Company held by others.
(m) If necessary or otherwise required, the Company will
comply with all of the provisions of Section 517.075 of the
Florida Statutes, and all rules and regulations promulgated
thereunder, relating to issuers doing business in Cuba.
SECTION 5. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing, filing and
delivery of the registration statement (as originally filed) and all
amendments thereto, (ii) the preparation, issuance and delivery to the
Underwriters of the certificates for the Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Securities under applicable state securities laws
in accordance with the provisions of Section 4(f), including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (v)
the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the registration statement (as
originally filed) and any amendments thereto, and of the Final
Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of the applicable
Indenture and any Blue Sky Survey and Legal Investment Survey, (vii)
the fees, if any, of rating agencies, (viii) the fees and expenses, if
any, incurred in connection with the listing of the Securities on any
securities exchange, (ix) the fees and expenses of the Trustees, if
any, including the fees and disbursements of counsel for the Trustees
in connection with the Indentures and the Securities, and (x) the
fees, if any, of the National Association of Securities Dealers, Inc.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 6 or Section 10(i), the
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Company shall reimburse the Underwriters named in this Agreement for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy
of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of its obligations,
covenants and agreements hereunder, and to the following further
conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 under the Act not later than 5:30
p.m., New York City time, on the second business day following
the date hereof; and at the applicable Closing Date (i) no stop
order suspending the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings therefor
initiated or threatened by the Commission and any request on the
part of the Commission for additional information shall have been
complied with to the satisfaction of counsel for the
Underwriters, (ii) except where the only Securities are Common
Stock, the rating assigned by any nationally recognized
securities rating agency to any debt securities or preferred
stock of the Company as of the date of this Agreement shall not
have been lowered since the execution of this Agreement and no
such agency shall have publicly announced that it has placed any
of such debt securities or preferred stock on what is commonly
termed a "watch list" for possible downgrading, and (iii) there
shall not have come to the attention of the Representatives any
facts that cause them, after disclosing such facts to, and
discussing them with, the Company, reasonably to believe that the
Final Prospectus, at the time it was required to be delivered to
a purchaser of the Securities, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
(b) At the applicable Closing Date, the Representatives
shall have received:
(1) The opinion, dated as of the applicable
Closing Date, of the General Counsel of the Company, in form and
substance satisfactory to the Underwriters to the effect that:
(i) Each of the Company and each Significant
Subsidiary has been duly incorporated and each of the
Company and each Significant Subsidiary is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation and, to the best of such
counsel's knowledge, each of the Company and each such
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Significant Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so
qualify or be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(ii) Each Significant Subsidiary has the corporate
power and authority to own, lease and operate its properties
and to conduct its business as currently conducted and as
described in the Prospectus.
(iii) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein.
(iv) The execution, delivery and performance by the
Company of this Agreement, the Indenture and the Notes, the
performance by the Company of its agreements herein and
therein and the incurrence by the Company of the
indebtedness to be evidenced by the Notes will not conflict
with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or
any Significant Subsidiary under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
known to such counsel and to which the Company or any
Significant Subsidiary is a party or by which any of them
are bound or to which any property or assets of the Company
or any such Significant Subsidiary is subject.
(2) The opinion, dated as of the applicable
Closing Date, of Xxxxxx Xxxxxx & Xxxxx, counsel for the
Company, in form and substance satisfactory to counsel for
the Underwriters, with such specificity as is necessary to
reflect particularly the Securities purchased on such
Closing Date to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the
State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Final Prospectus.
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(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing
under the laws of the State of Illinois and the State of
Wisconsin.
(iv) In the case of an offering of Preferred Stock or
Common Stock, the authorized, issued and outstanding capital
stock of the Company is as set forth in the Registration
Statement and the Final Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations or agreements referred to in the
Final Prospectus), and the stock of issued and outstanding
capital stock of the Company set forth therein have been
duly authorized and validly issued and are fully paid and
nonassessable; the certificate for each outstanding share of
Common Stock also represents one Right per share; and the
outstanding Rights have been duly authorized and validly
issued under the Rights Agreement.
(v) The Company is the registered owner of all of the
issued and outstanding shares of capital stock of the
Significant Subsidiaries (including Xxxxxx Operating
Company), other than Anchor Hocking Corporation, free and
clear, to the best of such counsel's knowledge, of any
pledge, mortgage, lien, encumbrance or claim. Xxxxxx
Operating Company is the registered owner of all of the
issued and outstanding shares of capital stock of Anchor
Hocking Corporation, free and clear, to the best of such
counsel's knowledge, of any pledge, mortgage, lien,
encumbrance or claim. All of the issued and outstanding
capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-
assessable.
(vi) This Agreement has been duly authorized, executed
and delivered by the Company.
(vii) The Registration Statement is effective under the
Act and, to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the Act or proceedings
therefor initiated or threatened by the Commission.
(viii) At the time the Registration Statement became
effective, at the date of this Agreement and at the
applicable Closing Date, the Registration Statement (other
than the financial statements, supporting schedules or other
financial or statistical information or data included or
incorporated by reference therein, as to which no opinion
need be rendered) complied as to form in all material
respects with the requirements of the Act, the rules and
regulations thereunder, the Trust Indenture Act and the
-16-
rules and regulations thereunder, and nothing has come to
their attention that leads them to believe that the
Registration Statement (other than the financial statements,
supporting schedules and other financial or statistical
information or data included or incorporated by reference
therein, as to which no opinion need be rendered), at the
time it became effective or at the date of this Agreement or
at the applicable Closing Date, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final
Prospectus, as amended or supplemented at the applicable
Closing Date, including the documents incorporated by
reference therein (other than the financial statements,
supporting schedules and other financial or statistical
information or data included or incorporated by reference
therein, as to which no opinion need be rendered) included
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(ix) To the best of their knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed in the
Final Prospectus or in any document incorporated by
reference therein.
(x) Each document filed pursuant to the Exchange Act
(other than the financial statements, supporting schedules
and other financial or statistical information or data
included therein, as to which no opinion need be rendered)
and incorporated by reference in the Final Prospectus at the
applicable Closing Date, complied when so filed (or, if
amended, when and as amended prior to the date of the Final
Prospectus) as to form in all material respects with the
Exchange Act and the rules and regulations thereunder.
(xi) To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to
be described, referred to or incorporated by reference in
the Registration Statement at the applicable Closing Date or
to be filed as exhibits thereto other than those described,
referred to or incorporated by reference therein or filed as
exhibits thereto, and the descriptions thereof or references
thereto in the Registration Statement at the applicable
Closing Date are correct.
(xii) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
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connection with the consummation by the Company of the
transactions contemplated by this Agreement, except such as
may be required under the Act, the rules and regulations
thereunder, the Exchange Act, the rules and regulations
thereunder or state securities laws and the qualification of
the applicable Indenture under the Trust Indenture Act (in
the case of an offering of Debt Securities); the execution
and delivery by the Company of this Agreement, the
applicable Indenture (in the case of an offering of Debt
Securities), and the Securities and the consummation of the
transactions contemplated herein and therein will not result
in any violation of the provisions of the charter or by-laws
of the Company; and to the best of their knowledge and
information, the execution and delivery by the Company of
this Agreement, the applicable Indenture (in the case of an
offering of Debt Securities), and the Securities and the
consummation of the transactions contemplated herein and
therein will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any
Material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will
such action result in any violation of any applicable law,
administrative regulation or any administrative or court
order or decree known to them. For purposes of the
preceding sentence, "Material Contract" shall mean each
indenture, loan agreement, contract, agreement or
arrangement, as each shall have been amended to the date of
such opinion, filed as an exhibit to, or incorporated by
reference in, the most recent Annual Report to the SEC on
Form 10-K of the Company or any report filed since the date
of such report with the SEC under Section 13 of the Exchange
Act.
(xiii) The information in the Final Prospectus
describing the Securities, the Rights and the Series B
Preferred (and the applicable Indenture in the case of an
offering of Debt Securities), has been reviewed by them and
is correct (subject to the limitations stated therein) and
complete in all material respects.
(xiv) In the case of an offering of Debt Securities,
the applicable Indenture has been duly and validly
authorized, executed and delivered by the Company and is
substantially in the form filed or incorporated by
reference, as the case may be, as an exhibit to the
Registration Statement at the time the Registration
Statement became effective; the applicable Indenture has
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been duly qualified under the Trust Indenture Act; and,
assuming due authorization, execution and delivery by the
Trustee the applicable Indenture constitutes a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its respective terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles; the Debt Securities are in the
form contemplated by the applicable Indenture and the Debt
Securities have been duly and validly authorized by the
Company and, when executed by the proper officers of the
Company, authenticated in accordance with the provisions of
the applicable Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement will in each
case constitute a valid and binding obligation of the
Company, be convertible (in the case of those Debt
Securities that by their terms are so convertible) for
shares of Common Stock or other securities of the Company in
accordance with their terms as set forth in the Final
Prospectus and will be entitled to the benefits of the
applicable Indenture enforceable against the Company in
accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles; if the Debt Securities are convertible into
shares of Common Stock or other securities of the Company,
the shares of Common Stock or other securities issuable upon
such conversion will have been duly authorized and reserved
for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid (assuming the
underlying Debt Securities have been paid for) and
nonassessable; such shares of Common Stock or other
securities will have been duly authorized and issued, will
be fully paid (assuming the underlying Debt Securities have
been paid for) and nonassessable and will conform to the
description thereof contained in the Final Prospectus; and
the stockholders of the Company have no preemptive rights
with respect to any of such shares of Common Stock or other
securities issuable upon such conversion.
(xv) In the case of an offering of shares of Preferred
Stock, including any shares of Preferred Stock constituting
Option Securities, the shares of Preferred Stock being
delivered and paid for at such Closing Date have been duly
authorized, validly issued and are fully paid and
nonassessable; and the stockholders of the Company have no
preemptive rights with respect to any of such Preferred
Stock. If the shares of Preferred Stock being delivered and
paid for at such Closing Date are convertible into shares of
Common Stock or other securities, such shares of Preferred
-19-
Stock are convertible into shares of Common Stock or other
securities of the Company in accordance with their terms;
the shares of Common Stock or other securities initially
issuable upon conversion of such shares of Preferred Stock
will have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion,
will be duly issued, fully paid (assuming the underlying
Preferred Stock have been paid for) and nonassessable; the
shares of Common Stock have been duly authorized and issued,
are fully paid and nonassessable and conform to the
description thereof contained in the Final Prospectus.
(xvi) In the case of an offering of shares of Common
Stock, including any shares of Common Stock constituting
Option Securities, the shares of Common Stock being
delivered and paid for at such Closing Date have been duly
authorized, validly issued and are fully paid and
nonassessable; the related Rights have been duly authorized
and validly issued under the Rights Agreement and are
entitled to the benefits thereof; neither the issuance of
the shares of Common Stock nor the issuance of the related
Rights is subject to preemptive rights; and the Company has
reserved one four-hundredth share of Series B Preferred for
issuance upon exercise of each Right.
(3) The opinion or opinions, dated as of the
applicable Closing Date, of______________________
_____________________ counsel for the Underwriters,
with respect to the incorporation of the Company, the
validity of the Securities being sold at the Closing
Date, the Registration Statement, the Final Prospectus
and other related matters as the Underwriters may
reasonably request, and such counsel shall have
received such papers and information as they reasonably
request to enable them to pass upon such matters.
(c) At the applicable Closing Date there shall not have
been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration
Statement and the Final Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings,
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of
the Company and of the Chief Financial Officer, Chief Accounting
Officer or Treasurer of the Company, dated as of such Closing
Date, to the effect that (i) there has been no such material
adverse change; (ii) the representations and warranties in
Section 1 are true and correct with the same force and effect as
though expressly made again at and as of such Closing Date; (iii)
the Company has complied with all agreements and satisfied all
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conditions on its part to be performed or satisfied at or prior
to such Closing Date; and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened
by the Commission.
(d) The Representatives shall have received from Xxxxxx
Xxxxxxxx LLP and any other independent certified public
accountants who have reviewed financial statements included in
the Registration Statement or the Final Prospectus letters, dated
as of the date of this Agreement and as of the applicable Closing
Date, in form and substance satisfactory to the Representatives
to the effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the
meaning of the Act and the rules and regulations thereunder.
(ii) It is their opinion that the financial statements
and supporting schedules included or incorporated by
reference in the Registration Statement and covered by their
opinion therein comply as to form in all material respects
with the applicable accounting requirements of the Act, the
rules and regulations thereunder, the Exchange Act and the
rules and regulations thereunder.
(iii) Based upon limited procedures set forth in detail
in such letter, nothing has come to their attention which
causes them to believe that:
(A) The unaudited financial statements and
supporting schedules of the Company and its
subsidiaries included or incorporated by reference in
the Registration Statement and the Final Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the Act, the
rules and regulations thereunder, the Exchange Act and
the rules and regulations thereunder or are not
presented in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(B) The amounts set forth under the caption
"Selected Financial Data" (or other similar caption) in
the Final Prospectus are not in agreement with the
corresponding amounts in the Company's audited
financial statements included or incorporated by
reference in the Registration Statement and the Final
Prospectus; or
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(C) At a specified date not more than five days
prior to the date of the letters, there has been any
change in the capital stock of the Company or any
increase in the consolidated long-term debt of the
Company and its subsidiaries or any decrease in
consolidated net current assets or net assets as
compared with the amounts shown in the Company's most
recent consolidated balance sheet included or
incorporated by reference in the Registration Statement
and the Final Prospectus or, during the period from the
date of such balance sheet to a specified date not more
than five days prior to the date of the letters, there
were any decreases, as compared with the corresponding
period in the preceding year, in consolidated net
sales, net earnings or primary net earnings per share
of the Company and its subsidiaries, except in all
instances for changes, increases or decreases which the
Registration Statement and the Final Prospectus
disclose have occurred or may occur.
(iv) In addition to the examination referred to in
their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which
are included or incorporated by reference in the
Registration Statement and Prospectus and which have been
specified by the Representatives, and have found such
amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in
such letter.
(v) If pro forma financial statements are included or
incorporated in the Registration Statement and Final
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company
and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial
statements, nothing came to their attention which caused
them to believe that the pro forma financial statements do
not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements.
(e) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such documents and
-22-
opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein
contemplated 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 contained; and all
proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(f) If any of the Securities are to be listed on the New
York Stock Exchange, Inc. or any other national stock exchange,
such Securities shall have been duly listed, subject to notice of
issuance, on such stock exchange.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to
the Company at any time at or prior to the applicable Closing
Date, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), including all documents incorporated by
reference therein, or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such
-23-
settlement is effected with the written consent of the
Company; and
(3) against any and all expense whatsoever, as
incurred (including, subject to Section 7(c) hereof, the
fees and disbursements of counsel chosen by you) reasonably
incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (1) or
(2) above;
provided, however, that this indemnity shall not apply to any loss,
claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
(or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto) or the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly
for use in the Registration Statement (or any amendment thereto)
the Basic Prospectus, Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall
not relieve such indemnifying party from any liability which it
may have otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same
-24-
jurisdiction arising out of the same general allegations or
circumstances.
SECTION 8. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 7 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as
incurred, in such proportions that the Underwriters are responsible
for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Final Prospectus bears to
the initial public offering price of the Securities appearing thereon
and the Company is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the
Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Company.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement, or contained in certificates of officers
of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the
Company, and shall survive delivery of any Securities to the
Underwriters.
SECTION 10. Termination. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to
the applicable Closing Date (i) if there has been, since the date of
this Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak
or escalation of hostilities or other calamity or crisis, the effect
of which is such as to make it, in the Representatives' sole judgment,
impracticable to market the Securities or enforce contracts for the
sale of the Securities, or (iii) if trading in the Common Stock has
been suspended by the Commission, or if trading generally on either
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the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared
by either Federal, New York or Illinois authorities. In the event of
any such termination, such termination shall be without liability of
any party to any other party except as provided in Section 5.
Notwithstanding any such termination, the provisions of Sections 7 and
8 shall remain in effect.
SECTION 11. Default. If one or more of the Underwriters shall
fail at the applicable Closing Date to purchase the Securities which
it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in
such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount
of the Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective
underwriting obligations under this Agreement bear to the
underwriting obligations of all such non-defaulting Underwriters,
or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the
Securities to be purchased pursuant to this Agreement, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of any default of
such Underwriter under the applicable Terms Agreement or this
Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the
Company shall have the right to postpone the applicable Closing Date
for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Final Prospectus, or in any
other documents or arrangements.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of
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telecommunication. Notices to the Underwriters shall be directed to
___________________________________________________, Attention:
____________________. Notices to the Company shall be directed to it
______________________________________________
______________________________ Attention: ______________________
______________________________ __________________________________
with a copy to Xxxxxx Xxxxxx & Xxxxx, 0000 Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.
SECTION 13. Parties. This Agreement shall inure to the
benefit of and be binding upon the Underwriters and the Company and
their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm
or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. Governing Law and Time. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day
refer to New York City time.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
Xxxxxx Co.
By: Name:_________________________
Title:________________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
[Name, address and signature block
for Underwriters or Representatives.]
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For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing Agreement.
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SCHEDULE I
Debt Securities
Underwriting Agreement dated
Trustee:
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Interest rate:
Interest payable:
Commencing:
Date of maturity:
Public offering price:
Purchase price:
Form of payment:
Form of Securities:
Redemption provisions:
Sinking fund requirements:
Lockup provisions:
Convertibility into other Securities:
Other provisions:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Modification of items to be covered by the letter from Xxxxxx Xxxxxxxx
LLP delivered pursuant to Section 6(d) at the Closing Date:
I-1
PREFERRED STOCK
Underwriting Agreement dated
Designation, Purchase Price and Description of Preferred Stock:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued
dividends, if any):
Other provisions:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Deposit Agreement: Terms and Conditions
Purchased Securities Closing Date, Time and Location:
Convertibility into Common Stock or other securities:
Modification of items to be covered by the letter from Xxxxxx Xxxxxxxx
LLP delivered pursuant to Section 6(d) at the Closing Date:
I-2
COMMON STOCK
Underwriting Agreement dated
Number of shares:
Purchase price per share:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Modification of items to be covered by the letter from Xxxxxx Xxxxxxxx
LLP delivered pursuant to Section 6(d) at the Closing Date:
I-3
SCHEDULE II
Debt Securities
Firm Name $Amount<*>
------------- -------------------
Total ______________
$_____________
ALL OTHER SECURITIES
Firm Name Participation*
----------- -------------------
Total ______________
$______________
<*> If Option Securities are offered, should include the minimum and
maximum principal amount or number of shares of Securities, as
the case may be.
II-1
