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EXHIBIT 1.1
XXXXXXX CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
________, 2000
[NAME AND ADDRESS OF UNDERWRITERS]
Ladies and Gentlemen:
1. Introductory. Xxxxxxx Corporation, a Delaware corporation
("Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) ("Registered Securities"). The Registered Securities will be issued under
an indenture, dated as of January 15, 1993, as supplemented by the First
Supplemental Indenture dated as of May 20, 1999 (the indenture, as so
supplemented, is hereinafter referred to as the "Indenture"), between the
Company and Bank One Trust Company, National Association, as Trustee, in one or
more series, which series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms, with all such terms for any
particular series of the Registered Securities being determined at the time of
sale. Particular series of the Registered Securities will be sold pursuant to a
Terms Agreement referred to in Section 3, for resale in accordance with terms of
offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities." The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives;" provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives," as used in this Agreement (other than in Sections 2(b), 5(b)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, each Underwriter
that:
(a) A registration statement on Form S-3 (No. 333-_____) (the
"Registration Statement"), including a prospectus contained in the Registration
Statement relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and such registration
statement has become effective. The Registration Statement (as amended) and the
prospectus constituting part of such registration statement (including the
information, if any, deemed
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to be part thereof pursuant to Rule 430A(b) under the Securities Act of 1933, as
amended (the "Act")), including all material incorporated therein by reference,
as amended at the time of any Terms Agreement referred to in Section 3, is
hereinafter referred to as the "Registration Statement," and the prospectus
included in such Registration Statement, as supplemented as contemplated by
Section 3 to reflect the terms of the Securities and the terms of offering
thereof, as first filed after the date hereof with the Commission pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") under the Act, including all
material incorporated by reference therein, is hereinafter referred to as the
"Prospectus."
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements of the Act,
the Trust Indenture Act of 1939 ("Trust Indenture Act") and the rules and
regulations of the Commission ("Rules and Regulations") and did not include 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.
On the date of each Terms Agreement referred to in Section 3, the Registration
Statement and the Prospectus will conform in all respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations, and neither of
such documents will include 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, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(c) The consolidated historical financial statements, together
with the related notes thereto, set forth or incorporated by reference in the
Prospectus comply as to form in all material respects with the requirements of
Regulation S-X under the Act applicable to registration statements on Form S-3
under the Act. Such historical financial statements fairly present in all
material respects the financial position of the Company at the respective dates
indicated and the results of operations and cash flows of the Company for the
respective periods indicated, in each case in accordance with generally accepted
accounting principles ("GAAP") consistently applied throughout such periods. The
other historical financial information and data included in the Prospectus is,
in all material respects, accurately presented and true and correct.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of a
Terms Agreement substantially in the form of Annex I attached hereto ("Terms
Agreement") and a Letter of Acceptance substantially in the form of Annex II
attached hereto at the time the Company determines to sell the Securities. The
Terms Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms which
will be Underwriters, the names of any Representatives, the principal amount to
be purchased by each Underwriter, the purchase price to be paid by the
Underwriters and the terms of the Securities not already specified in the
Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time and
date of delivery and payment (such time and date not later than four full
business days thereafter or
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such other time and date as the Representatives and the Company agree as the
time for payment and delivery, being herein and in the Terms Agreement referred
to as the "Closing Date"), the place of delivery and payment and any details of
the terms of offering that should be reflected in the prospectus supplement
relating to the offering of the Securities. The obligations of the Underwriters
to purchase the Securities will be several and not joint. It is understood that
the Underwriters propose to offer the Securities for sale as set forth in the
Prospectus. The Securities delivered to the Underwriters on the Closing Date
will be in definitive, fully registered form, in such denominations and
registered in such names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex III attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be made only with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount of Securities to be sold pursuant to Delayed
Delivery Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate principal amount of Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Securities set forth opposite each Underwriter's name in
such Terms Agreement, except to the extent that the Representatives determine
that such reduction shall be otherwise than pro rata and so advise the Company.
The Company will advise the Representatives not later than the business day
prior to the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with
the several Underwriters that it will furnish to Xxxxxxxx & Xxxxx, counsel for
the Underwriters, one conformed copy of the Registration Statement, including
all exhibits, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Representatives, Rule 424(b)(5)) not later than the second
business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the Prospectus
and will afford the Representatives a reasonable opportunity to comment on any
such proposed amendment or supplement; and the Company will also advise the
Representatives promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in respect of
the Registration Statement or of any part thereof and will use its best efforts
to prevent
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the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of
the Act, the Company will, as soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of filing with the Commission of the
Company's most recent Annual Report on Form 10-K prior to the date of such Terms
Agreement.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representatives shall reasonably
designate and will continue such qualifications in effect so long as required
for the distribution; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable after
the end of each fiscal year, a copy of its annual report to stockholders for
such year; and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report on Form 10-K or 10-Q or definitive proxy
statement of the Company filed with the Commission under the Securities Exchange
Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse the
Underwriters for any expenses (including
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fees and disbursements of counsel) incurred by them in connection with
qualification of the Registered Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably designate and the printing
of memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses and any preliminary
prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the
Terms Agreement and ending one business day after the Closing Date, the Company
will not, without the prior consent of the Representatives, offer, sell,
contract to sell or otherwise dispose of any publicly sold (including pursuant
to Rule 144A of the Securities Act) United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of more
than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein on the date hereof and at the time of execution of
the Terms Agreement and on the Closing Date, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(b) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or its subsidiaries which, in the judgment of a majority in interest
of the Underwriters, including any Representatives, is so material and adverse
as to make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities or the Registered Securities as contemplated by the
Registration Statement and the Prospectus; (ii) any downgrading in the rating of
any debt securities of the Company by Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc., or any public announcement that either such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices or trading on
such exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgement of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the
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Securities.
(c) The Underwriters shall have received an opinion, dated the
Closing Date, of Sidley & Austin, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing 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 conduct its business as described in the Prospectus;
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under the
Trust Indenture Act; the Securities have been duly authorized; the
Indenture and the Securities other than any Contract Securities
constitute, and any Contract Securities, when executed, authenticated,
issued and delivered in the manner provided in the Indenture and sold
pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
Securities other than any Contract Securities conform in all material
respects, and any Contract Securities, when so issued and delivered and
sold, will conform, in all material respects, to the description
thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Securities by the Company,
except such as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state securities laws
or Blue Sky laws of various jurisdictions;
(iv) Each document filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (other than the
financial statements and the notes thereto, and the supporting
schedules and other financial or statistical data derived therefrom or
included or incorporated by reference therein, as to which no opinion
need be given) complied when filed as to form in all material respects
with the Exchange Act and the Rules and Regulations thereunder;
(v) The Registration Statement has become effective
under the Act, the Prospectus was duly filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such opinion
on the date specified therein, and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or threatened under
the Act, and (A) the Registration Statement, as of its effective
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date, and the Registration Statement and the Prospectus, as of the date
of the Terms Agreement and the applicable Closing Date, and any
amendment or supplement thereto, as of its date (other than in each
case the financial statements and the notes thereto, and the supporting
schedules and other financial or statistical data derived therefrom or
included or incorporated by reference therein, as to which no opinion
need be expressed), complied or comply, as the case may be, as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; (B) nothing came to such
counsels' attention which causes them to believe that the Registration
Statement, as of its effective date, the Registration Statement or the
Prospectus as of the date of the Terms Agreement and the applicable
Closing Date, or any such amendment or supplement thereto, as of its
date (other than in each case the financial statements and the notes
thereto, and the supporting schedules and other financial or
statistical data derived therefrom or included or incorporated by
reference therein, as to which no belief need be expressed), contained
or contains, as the case may be, an untrue statement of a material fact
or omitted or omits, as the case may be, to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the
Terms Agreement and the applicable Closing Date, and any amendment or
supplement thereto, as of its date (other than in each case the
financial statements and the notes thereto, and the supporting
schedules and other financial or statistical data derived therefrom or
included or incorporated by reference therein, as to which no belief
need be expressed), included or includes, as the case may be, an untrue
statement of a material fact or omitted or omits, as the case may be,
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; and (C) the information in the Prospectus under the
captions "Description of the Notes" and "Description of the Debt
Securities" or a comparable section describing the Securities and the
Indenture is accurate in all material respects; and
(vi) This Agreement and any applicable Terms
Agreement and any Delayed Delivery Contracts have each been duly
authorized, executed and delivered by the Company.
(d) The Underwriters shall have received an opinion, dated the
Closing Date, of Xxxxxx X. Xxxxxxx, General Counsel of the Company, to the
effect that:
(i) The Company is duly qualified to do business as a
foreign corporation in good standing in all jurisdictions in which it
owns or leases substantial properties or in which the conduct of its
business requires such qualification, except where the failure to so
qualify would not, individually or in the aggregate, have a material
adverse effect on the properties, assets, operations, business or
condition (financial or otherwise) of the Company and its subsidiaries
taken as a whole;
(ii) Each "significant subsidiary" (as defined in
Regulation S-X of the Commission) of the Company has been duly
incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and conduct its
business as described
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in the Prospectus;
(iii) Each such significant subsidiary of the Company
is in good standing and is duly qualified to do business as a foreign
corporation in all jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification, except where the failure to be in good standing or so
qualify would not, individually or in the aggregate, have a material
adverse effect on the properties, assets, operations, business or
condition (financial or otherwise) of the Company and its subsidiaries
taken as a whole; all of the issued and outstanding capital stock of
each such subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, and all of such capital stock is owned
by the Company, directly or through subsidiaries, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity, except as set
forth in Exhibit 21 of the Company's most recent Annual Report on Form
10-K filed with the Commission;
(iv) The execution, delivery and performance of the
Indenture, this Agreement, the Terms Agreement and Letter of Acceptance
and any Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties or any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, and the Company has the power and
authority to authorize, issue and sell the Securities as contemplated
by this Agreement and the Terms Agreement;
(v) To the best of such counsel's knowledge and
information, (A) there are no contracts, indentures, mortgages, loan
agreements, notes, deeds of trust, leases or other instruments required
to be described or referred to in the Registration Statement or to be
filed as exhibits thereto, other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and
(B) no default exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, deed of trust, lease or
other instrument which breach would, individually or in the aggregate,
have a material adverse effect on the properties, assets, operations,
business or condition (financial or otherwise) of the Company and its
subsidiaries taken as a whole; and
(vi) Nothing came to such counsel's attention which
causes him to believe that the Registration Statement, as of its
effective date, the Registration Statement as of the date of the Terms
Agreement and the applicable Closing Date, or any such amendment or
supplement, as of its date, contained or contains an untrue statement
of a material fact or omits or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of the
Terms
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Agreement and the applicable Closing Date, and any amendment or
supplement thereto, as of its date, included or includes an untrue
statement of a material fact or omitted or omits 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; the
descriptions in the Registration Statement and Prospectus of statutes,
legal and governmental proceedings and contracts and other documents
constitute an accurate summary of such statutes, proceedings, contracts
and other documents in all material respects; it being understood that
such counsel need express no opinion as to the financial statements and
the notes thereto, or the supporting schedules and other financial or
statistical data derived therefrom contained in the Registration
Statement or the Prospectus or incorporated by reference therein.
(e) The Underwriters shall have received from Xxxxxxxx &
Xxxxx, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the validity of the Securities, the Registration
Statement, the Prospectus and other related matters as they may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received a certificate, dated
the Closing Date, of the Chairman and Chief Executive Officer or any Vice
President and the principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct, that the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission and that, subsequent to the date of the
most recent financial statements of the Company in or incorporated by reference
in the Prospectus, there has been no material adverse change in the financial
position or results of operation of the Company and its subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(g) The Underwriters shall have received a letter or letters,
dated the Closing Date, of KPMG LLP, confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and
schedules audited by them and included or incorporated by reference in
the Registration Statement and the Prospectus, comply in form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on any unaudited
financial statements included in the Registration Statement;
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(iii) on the basis of the review, if any, referred to
in clause (ii) above, a reading of the latest available interim
financial statements of the Issuer, inquiries of officials of the
Issuer who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited consolidated financial
statements, if any, included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published Rules and Regulations or any material
modification should be made to such unaudited financial
statements for them to be in conformity with generally
accepted accounting principles;
(B) the unaudited summary financial
information, if any, included in the Prospectus does not agree
with the amounts set forth in the unaudited consolidated
financial statements from which it was derived or was not
determined on a basis substantially consistent with that of
the audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus;
(C) at the date of the latest available
balance sheets read by such accountants, there was any change
in the capital stock or any increase in long-term debt,
including current maturities, of the Company and consolidated
subsidiaries and at the date of the latest available balance
sheet read by such accountants, there was any decrease in
total shareholders' equity of the Company and consolidated
subsidiaries, in each case as compared with amounts shown on
the latest balance sheets included or incorporated by
reference in the Prospectus; and at a subsequent specified
date not more than five days prior to the Closing Date, there
was any change greater than three percent in the capital stock
or any increase greater than five percent in long-term debt,
including current maturities, of the Company and consolidated
subsidiaries as compared with amounts shown on the latest
balance sheets included or incorporated by reference in the
Prospectus; and
(D) for the period from the date of the
latest income statements included or incorporated by reference
in the Prospectus to the closing date of the latest available
income statements read by such accountants there were any
decreases, as compared with the corresponding period of the
preceding year, in consolidated sales and revenues, operating
income or net income of the Company and consolidated
subsidiaries; and for the period from the closing date of the
latest available income statement read by such accountants to
a subsequent specified date not more than five days prior to
the Closing Date, there were any decreases, as compared with
the corresponding period in the preceding year, in
consolidated sales and revenues, operating income or net
income of the Company and consolidated subsidiaries;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases
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which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(iv) in addition to the procedures specified in clause
(ii) above, they have carried out certain other limited procedures of a
nature customarily the subject of independent auditors' comfort letters
with respect to (A) specified dollar amounts (or percentages derived
from such dollar amounts) and (B) other financial information of a
nature customarily the subject of independent auditors' comfort
letters, which is contained in the Prospectus, including without
limitation the ratios of earnings to fixed charges, and have found such
dollar amounts, percentages and other financial information to be in
agreement with the relevant accounting and financial records specified
in such letter, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
The Company will furnish the Representatives with such additional copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution.
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(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expense
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
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therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the 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 relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
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subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7 Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except as
provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such obligations
and agreements will not apply.
8 Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its
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officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person and will survive delivery of and payment for the
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Securities by the Underwriters under the Terms
Agreement is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4 and the respective
obligations of the Company and the Underwriters pursuant to Section 6 shall
remain in effect. If the purchase of the Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(b), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Securities.
9 Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their addresses furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Xxxxxxx Corporation, 0000
Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: Secretary.
10 Successors. This Agreement will inure to the benefit of and
be binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11 Applicable Law. This Agreement and the Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
* * * *
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If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
XXXXXXX CORPORATION
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[NAME OF UNDERWRITERS]
By:
---------------------------------------
Name:
Title:
[NAME OF UNDERWRITERS]
By:
---------------------------------------
Name:
Title:
[NAME OF UNDERWRITERS]
By:
---------------------------------------
Name:
Title:
16
ANNEX I
XXXXXXX CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
_____________, 200_
Xxxxxxx Corporation
0000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention:
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto ("Underwriters") and for their respective accounts, we offer to purchase,
on and subject to the terms and conditions of the Underwriting Agreement dated,
200_ between Xxxxxxx Corporation and the Underwriters ("Underwriting
Agreement"), the following securities ("Securities") on the following terms:
Title: [ %] [FLOATING RATE]--Notes,--Debentures--Bonds--Due
Principal Amount: $
Interest: [ % PER ANNUM, FROM, 200_, PAYABLE SEMIANNUALLY ON AND,
COMMENCING 200_, TO HOLDERS OF RECORD ON THE PRECEDING __________ OR ________,
AS THE CASE MAY BE.] [ZERO COUPON.]
Maturity: , .
Optional Redemption:
Sinking Fund:
Delayed Delivery Contracts: [NONE.] [DELIVERY DATE(S) SHALL BE 200_.
UNDERWRITERS' FEE IS % OF THE PRINCIPAL AMOUNT OF THE CONTRACT SECURITIES.]
Purchase Price: % of principal amount, plus accrued interest
[, IF ANY,] from 200_.
17
Expected Reoffering Price: % of principal amount, subject to change
by the undersigned.
Closing: A.M. on , 200_, at ______ in Federal (same day) funds.
Representative[S]: [NAME AND ADDRESS OF UNDERWRITER(S)]
The respective principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
It is understood that we may, with your consent, amend this offer to
add additional Underwriters and reduce the aggregate principal amount to be
purchased by the Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional Underwriters.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
18
Please signify your acceptance of the foregoing by return wire not
later than 3:00 P.M. today.
Very truly yours,
[NAME AND SIGNATURE BLOCK
FOR UNDERWRITER(S)]
I-3
19
SCHEDULE A
Principal
Underwriter Amount
----------- -----------
[UNDERWRITER(S)]............................................. $
-----------
Total............................................... $
===========
I-4
20
ANNEX II
To: [UNDERWRITERS]
[INSERT NAME(S) OF REPRESENTATIVES OF UNDERWRITERS
AS REPRESENTATIVE OF THE SEVERAL UNDERWRITER[S],
C/O]
We accept the offer contained in your letter, dated
____________, 200_, relating to $____ million principal amount of our [INSERT
TITLE OF SECURITIES]. We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement dated , 200_ between the undersigned and you
("Underwriting Agreement") are true and correct, no stop order suspending the
effectiveness of the Registration Statement (as defined in the Underwriting
Agreement) or of any part thereof has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the undersigned, are
contemplated by the Securities and Exchange Commission and, subsequent to the
respective dates of the most recent financial statements of the undersigned and
its subsidiaries in the Prospectus (as defined in the Underwriting Agreement),
there has been no material adverse change in the financial position or results
of operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
XXXXXXX CORPORATION
By:
-------------------------------
Its:
-------------------------------
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21
ANNEX III
___________, 200_
DELAYED DELIVERY CONTRACT
Xxxxxxx Corporation
c/o
Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxxx
Corporation, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, as of the date hereof, for delivery on ___________, 200_
("Delivery Date").
$
---------------
principal amount of the Company's _______________ securities ("Securities"),
offered by the Company's Prospectus dated __________, 200_, and a Prospectus
Supplement dated ___________, 200_ relating thereto, receipt of copies of which
is hereby acknowledged, at ___% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
Payment for the Securities that the undersigned has agreed to
purchase for delivery on the Delivery Date shall be made to the Company or its
order by certified or official bank check in Federal (same day) funds at the
office of ______________ at 10:00 A.M. on the Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned for delivery on
such Delivery Date in definitive fully registered form and in such denominations
and registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on the Delivery Date shall be
subject only to the conditions that (1) investment in the Securities shall not
at the Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall have
sold to the Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the
III-1
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Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first--come, first--served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
---------------------------------
[NAME OF PURCHASER]
By:
------------------------------
---------------------------------
[TITLE OF SIGNATORY]
---------------------------------
---------------------------------
[ADDRESS OF PURCHASER]
Accepted, as of the above date.
XXXXXXX CORPORATION
By:
----------------------------
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