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EXHIBIT 1
$______________
XXXX-XXXXX CORPORATION
$____________ ____% Notes due ____
Underwriting Agreement
__________________
__________________
__________________
__________________
Dear Sirs:
XXXX-XxXXX CORPORATION, a Delaware corporation (the "Company"), hereby
confirms its agreement with ______________ (the "Underwriters").
The Company proposes to issue $____________ aggregate principal amount
of its securities, consisting of $____________ principal amount of ____% Notes
due _____________ (the "Securities") pursuant to an indenture dated as of August
1, 1982, as supplemented to date (the "Indenture"), between the Company and
Citibank, N.A. (the "Trustee"). The Securities are more particularly described
in the registration statement and prospectus hereinafter referred to and in the
Indenture.
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1. The Company represents, warrants and agrees with the several
Underwriters that:
(a) A Registration Statement on Form S-3 (File No.____) with respect to
the Securities has (i) been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Act and (iii) become effective. As used in this
Agreement (i) "Preliminary Prospectus" means each prospectus (including all
documents incorporated therein by reference) included in the later
registration statement, or amendments or supplements thereof, before it
became effective under the Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations; (ii)
"Registration Statement" means the registration statement, as amended or
supplemented at the date of this Agreement (including all documents
included therein by reference); (iii) "Basic Prospectus" means the
prospectus (including all documents incorporated therein by reference)
included in the later Registration Statement or such later dated prospectus
as may be filed by the Company pursuant to paragraphs (b) or (c) of Rule
424 of the Rules and Regulations; and (iv) "Prospectus" means the Basic
Prospectus, together with any prospectus amendment or supplement (including
in each case all documents incorporated therein by reference) specifically
relating to the Securities, as filed with, or mailed for filing to, the
Commission pursuant to paragraphs (b) or (c) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Prospectus.
(b) The Registration Statement and the Prospectus contain, and (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will contain
at all times during the period specified in Paragraph 5(c) hereof, all
statements which are required by the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission under such Acts; the Indenture conforms with the requirements of
the Trust Indenture Act and the rules and regulations of the Commission
thereunder, and the Registration Statement and the Prospectus do not and
will not at the date of delivery, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will not at any time during the period
specified in Paragraph 5(c) hereof, 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;
provided that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished
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to the Company through the Underwriters by or on behalf of any Underwriter
specifically for inclusion therein.
(c) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the period
specified in Paragraph 5(c) hereof, prepared by the Company in conformity
with the applicable requirements of the Act and the Rules and Regulations
and the Exchange Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date as
of which this representation is being made) will be at all times during the
period specified in Paragraph 5(c) hereof, timely filed as required
thereby.
(d) Except as set forth in or contemplated by the Registration Statement
and the Prospectus, since the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the
date of delivery (as defined in Paragraph 4 hereof), there has not been,
and there will not have been, any material transaction not in the ordinary
course of business entered into by the Company or any of its Material
Subsidiaries which is material to the Company and its Material Subsidiaries
taken as a whole, any material change in the capital stock of the Company,
or any material adverse change in the financial position or results of
operations of the Company and its Material Subsidiaries taken as a whole.
As used in this Agreement, Material Subsidiaries shall include only:
Xxxx-XxXxx Oil & Gas Corporation, Xxxx-XxXxx (G.B.) Limited; Xxxx-XxXxx
Chemical LLC; and, KMCC Western Australia Pty Ltd. None of the Company's
other subsidiaries is a "significant subsidiary" as defined in Rule 405 of
the Rules and Regulations.
(e) The Company and each of its Material Subsidiaries are validly
incorporated and existing corporations in good standing under the laws of
their respective jurisdictions of organization, have all necessary
corporate power and authority to conduct their respective businesses as
described in the Prospectus and are duly qualified and in good standing in
all jurisdictions in which the failure so to qualify would have a material
adverse effect on the financial condition of the Company and its Material
Subsidiaries taken as a whole.
(f) Except as set forth in or contemplated by the Registration Statement
and the Prospectus, the Company and each of its Material Subsidiaries hold
all material patents, licenses, certificates and permits from governmental
authorities necessary for the conduct of their present operations; and all
of the issued and outstanding shares of capital stock of each Material
Subsidiary of the Company have been duly authorized and are validly issued
and, except as otherwise indicated in the Registration Statement and except
for directors' qualifying
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shares, are owned by the Company free and clear of all liens, encumbrances,
security interests and claims.
(g) Xxxxxx Xxxxxxxx LLP, whose report appears in the Company's most
recent Annual Report on Form 10-K which is incorporated in the Prospectus
by reference, are certified public accountants and are independent
accountants within the meaning of the Act and the Rules and Regulations.
(h) Except as set forth in or contemplated by the Prospectus, there is
no material litigation or governmental proceeding pending or, to the
knowledge of the Company, threatened against or involving the Company or
any of its subsidiaries which would be likely to result in any material
adverse change in the financial position, results of operations or business
of the Company and its Material Subsidiaries taken as a whole.
(i) Neither the Company nor any of its Material Subsidiaries is in
violation of its certificate of incorporation or charter, as the case may
be, or by-laws or in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of its indebtedness or any related loan agreement, note purchase
agreement or indenture. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein will
not conflict with or constitute a breach of, or a default under, the
certificate of incorporation or charter, as the case may be, or by-laws of
the Company or any Material Subsidiary, any material agreement, indenture
or other instrument by which the Company or any Material Subsidiary is
bound, or any applicable law, administrative regulation or court decree, or
result in the creation or imposition of any material lien, charge or
encumbrance upon any of the property or assets of the Company or any
Material Subsidiary.
(j) On the date of delivery (i) the Indenture will have been validly
authorized, executed and delivered by the Company and will constitute a
legally binding obligation of the Company enforceable against the Company
in accordance with its terms, except insofar as such enforcement may be
subject to (A) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of
equity (regardless of whether enforcement is sought in a proceeding at law
or in equity), (ii) the Securities will have been validly authorized and,
upon due execution, authentication and delivery in accordance with the
terms of the Indenture and payment therefor as provided in this Agreement,
will be validly issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the Indenture and
(iii) the Securities and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
(k) Since the end of its latest fiscal year the Company has timely filed
all documents and amendments to previously filed documents required to be
filed by it pursuant to Sections 12, 13, 14 or 15(d) of the Exchange Act;
and copies of
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each of the documents incorporated, or deemed to be incorporated, by
reference in the Basic Prospectus, together with evidence of the filing
thereof, have been delivered by the Company to the Underwriters.
2. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
agrees to sell to each of the Underwriters, and each of the Underwriters,
severally and not jointly, hereby agrees to purchase from the Company, the
principal amount of Securities set forth opposite such Underwriter's name in
Schedule 1 at a purchase price of _____% of the principal amount thereof, plus
accrued interest, if any, from ___________ to the date of payment and delivery.
It is understood that, in making this Agreement, the Underwriters are
contracting severally and not jointly, and that their several agreements to
purchase Securities on the basis of the agreements and representations herein
contained shall be several and not joint and shall apply only to the respective
amounts of Securities set forth opposite their respective names in Schedule 1
hereto, except as provided in Paragraph 3 hereof.
3. It shall be a condition of the agreement of the Company to sell and
deliver the Securities that each of the Underwriters shall purchase and pay for
the entire principal amount of Securities agreed to be purchased by such
Underwriter hereunder, except as hereinafter in this Paragraph 3 provided, and
the Company shall not be obligated to deliver any Securities except upon payment
by the several Underwriters for all of the Securities to be purchased hereunder.
Nothing herein contained shall relieve any defaulting Underwriter of its
liability, if any, to the Company for damages occasioned by its default
hereunder.
If any one or more of the Underwriters shall fail to purchase the entire
principal amount of the Securities to be purchased by such Underwriter or
Underwriters, the remaining Underwriters shall have the right, but shall not be
obligated, to take up and pay for (in such proportions as may be agreed among
them) the entire principal amount of the Securities which the withdrawing
Underwriter or Underwriters agreed but failed to purchase, but not less than
all.
In the event the remaining Underwriters agree as aforesaid to purchase
the Securities of a defaulting or withdrawing Underwriter or Underwriters, the
Underwriters or the Company shall have the right to postpone the date of
delivery to a date not exceeding six full business days after the date of
delivery fixed as provided in Paragraph 4 hereof in order to effect any changes
which in the opinion of counsel for the Company or of counsel for the
Underwriters may be necessary in the Registration Statement or the Prospectus or
in any other documents or arrangements by reason of such default or withdrawal
of any Underwriter.
4. Delivery by the Company of the Underwriters' Securities to the
Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by certified or official bank check or
checks payable in, or
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by wire transfer of, immediately available (federal) funds to or upon the order
of the Company shall take place at Xxxxxxx Xxxxxxx & Xxxxxxxx, on the third full
business day following the date of this Agreement or at such other date or place
as shall be determined by agreement between the Underwriters and the Company.
The Underwriters' Securities will be registered in such names and in
such authorized denominations as the Representatives may request no less than
two full business days in advance of the Closing Date. For the purpose of
expediting the checking and packaging of the Securities, the Company agrees to
make the same available for inspection by the Underwriters in New York, New York
not later than one full business day prior to the date of delivery.
5. The Company hereby further agrees as follows:
(a) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed or conformed copy of the Registration Statement as
originally filed and each amendment or supplement thereto filed on or prior
to the date of this Agreement or relating to or covering the Securities,
and a copy of the Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and exhibits
filed therewith;
(b) To deliver promptly to the Underwriters such number of the following
documents as the Underwriters may request: (i) conformed copies of the
Registration Statement (excluding exhibits other than the computation of
the ratio of earnings to fixed charges), the Indenture and this Agreement,
(ii) the Prospectus and (iii) any documents incorporated by reference in
the Prospectus;
(c) To file with the Commission, during such period following the date
of this Agreement, as may be required by the Act or requested by the
Commission, the Prospectus as required by law to be delivered in respect of
the Securities, any amendment or supplement to the Registration Statement
or the Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Act or requested by the Commission;
(d) Prior to filing with the Commission during the period referred to in
(c) above (i) any amendment or supplement to the Registration Statement,
(ii) the Prospectus or amendment or supplement thereto or (iii) any
document incorporated by reference in any of the foregoing or any amendment
or supplement to any such incorporated document, to furnish a copy thereof
to the Underwriters and to counsel for the Underwriters and provide such
persons a reasonable opportunity to comment thereon;
(e) To advise the Underwriters immediately (i) when any post-effective
amendment to the Registration Statement relating to or covering the
Securities becomes effective, (ii) of any request or proposed request by
the Commission for any amendment or supplement to the Registration
Statement (insofar as the amendment or supplement relates to or covers the
Securities), to the Prospectus, to any document incorporated by reference
in any of the foregoing
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or for any additional information, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or any order directed to the Prospectus or any document
incorporated therein by reference or the initiation or threat of any stop
order proceeding or of any challenge to the accuracy of any document
incorporated by reference in the Prospectus, (iv) of receipt by the Company
of any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening of any event
during the period referred to in (c) above which makes untrue any statement
of a material fact made in the Registration Statement (insofar as the
Registration Statements relate to or cover the Securities) or the
Prospectus or which requires the making of a change in the Registration
Statement or the Prospectus in order to make any material statement therein
not misleading;
(f) If, during the period referred to in (c) above, the Commission shall
issue a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting of that
order at the earliest possible time;
(g) To endeavor to qualify or assist the Underwriters in qualifying the
Securities for offer and sale under the securities or Blue Sky laws of such
states as the Underwriters may reasonably request, provided that the
Company shall not be required to qualify as a foreign corporation or
execute or file any consent to general service of process under the laws of
any state where it is not so qualified or so subject;
(h) To pay all costs and expenses incident to the performance of its
obligations under this Agreement, including all expenses incident to the
authorization of the Securities and their issue and delivery, any taxes
payable in connection therewith, the fees and expenses of the Company's
counsel and accountants, the costs and expenses incident to preparing,
printing and filing under the Act or the Exchange Act of the Registration
Statement and any amendments and supplements thereto (including all
exhibits thereto), the Preliminary Prospectus, the Prospectus and all
documents incorporated therein by reference, and the distribution thereof
to the several Underwriters and selected dealers, the costs of printing the
Indenture, this Agreement and any selling agreement, the costs incident to
any listing of the Securities on the New York Stock Exchange, the cost of
any filings with the National Association of Securities Dealers, Inc., any
fees required to be paid to rating agencies incurred in connection with the
offering of the Securities, and the cost (including counsel fees not in
excess of $7,500 and any filing fees payable in this connection) of
qualifying the Securities under the securities or Blue Sky laws of the
several states as provided in Paragraph 5(g) hereof and of providing the
Underwriters with a memorandum from their counsel concerning the legality
of the Securities as an investment; it being understood that, except as
provided in this Paragraph 5(h) or in Paragraph 10 hereof, the Underwriters
will pay all their own costs and expenses, including fees and expenses of
their counsel, transfer taxes, if any, on
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any Securities which they may sell, and any advertising expenses connected
with any offering they may make;
(i) Until the termination of the offering of the securities, to file
timely all documents, and any amendments to previously filed documents,
required to be filed by it pursuant to Sections 12, 13, 14 or 15(d) of the
Exchange Act; and
(j) Without the prior written consent of the Underwriters, during the
period beginning on the date of this Agreement and continuing to the date
of delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company with maturities longer than one year,
other than indebtedness incurred under the Company's existing bank loan
agreements and Securities to be issued to the Underwriters.
6. (a) The Company shall indemnify and hold harmless each Underwriter,
each other person, if any, participating with the Underwriters in the
distribution of the Securities who is an "underwriter" within the meaning of
Section 2(11) of the Act with respect to the distribution of the Securities (the
"Participants") and each person, if any, who controls any Underwriter or any
Participant within the meaning of the Act from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which that Underwriter, Participant or controlling person may become subject,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, the Registration Statement or the
Prospectus or arises out of, or is 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 shall reimburse each
Underwriter, Participant and such controlling person for any legal and other
expenses reasonably incurred by that Underwriter, Participant or controlling
person in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred; provided
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Prospectus, the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Company through the Underwriters by or on behalf of any Underwriter specifically
for inclusion therein; and provided further that as to any Preliminary
Prospectus this indemnity agreement shall not inure to the benefit of any
Underwriter, Participant or any person controlling that Underwriter or
Participant on account of any loss, claim, damage, liability or action arising
from the sale of Securities to any person by that Underwriter or Participant if
it is established that such Underwriter or Participant failed to send or give a
copy of the Prospectus, as the same may be amended or supplemented, to that
person if required by the Act within the time required by the Act, and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in the Preliminary Prospectus was
corrected in the Prospectus and delivery of the Prospectus would have cured the
defect giving rise to such loss, claim, damage or liability, unless such failure
resulted from non-compliance by the Company with Paragraph 5(b) or 5(c) hereof.
For purposes of the
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second proviso to the immediately preceding sentence, the term "Prospectus"
shall not be deemed to include any document incorporated therein by reference.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter Participant or controlling person.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and any person who controls the Company within
the meaning of the Act from and against any loss, claim, damage or liability,
joint or several, and any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, insofar as such
loss, claim, damage, liability or action, arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus, the Registration Statement or the Prospectus, or arises
out of, or is 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, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company through the Underwriters by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company for any
legal and other expenses reasonably incurred by the Company or any such
director, officer or controlling person in investigating or preparing to defend
against any such loss, claim, damage, liability or action. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any of its directors, officers or controlling
persons.
(c) Promptly after receipt by an indemnified party under this Paragraph
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Paragraph 6 except to the extent it has been
materially prejudiced by such failure and, provided further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Paragraph 6. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Paragraph 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that the
Underwriters shall have the right to employ one firm of counsel (in addition to
local counsel) to represent the Underwriters, those other Underwriters and
Participants and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company under this Paragraph 6 if, in the
reasonable
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judgment of the Underwriters, it is advisable for the Underwriters, Participants
and controlling persons to be represented by separate counsel, and in that event
the fees and expenses of such separate counsel shall be paid by the Company. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Paragraph 6 shall for
any reason be unavailable or insufficient to an indemnified party under
Paragraph 6(a) or 6(b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or any action in respect thereof, (i)
in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters and Participants 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 one hand and the
Underwriters and Participants on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
and the Participants on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters and the
Participants with respect to such offering, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Paragraph 6(d) were to be determined by pro rata allocation (even if the
Underwriters and Participants were treated as one entity for such purpose) or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this
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Paragraph 6(d) shall be deemed to include, for purposes of this Paragraph 6(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Paragraph 6(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 paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Paragraph 6(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The indemnity agreements contained in this Paragraph 6 and the
representations, warranties and agreements of the Company in Xxxxxxxxx 0,
Xxxxxxxxx 5 and Paragraph 9 hereof shall survive the delivery of the Securities
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
(f) The Underwriters severally confirm that the statements with respect
to the public offering of the Securities set forth on the cover page of, and
under the caption "Underwriting" in, the prospectus supplement to the Prospectus
are correct and constitute the only information furnished to the Company by or
on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
7. The obligations of the Underwriters under this Agreement shall be
subject to termination, in the absolute discretion of the Underwriters, by
notice given to and received by the Company prior to the date of delivery, if
after the execution hereof (i) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the over-the-counter market shall
have been suspended or minimum prices shall have been established on such
exchanges, or such market by the Commission, by such exchanges or by any other
regulatory body or governmental body having jurisdiction, (ii) a banking
moratorium shall have been declared either by Federal or State authorities,
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States, (iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as to
make it, in the judgment of a majority in interest of the several Underwriters,
unpractical, or inadvisable to proceed with the public offering of or delivery
of the Securities under the terms and in the manner contemplated in the
Prospectus, (v) trading in any securities of the Company shall have been
suspended or halted by any national securities exchange, the National
Association of Securities Dealers, Inc. or the Commission or (vi) a downgrading
shall have occurred in the rating accorded the Company's debt securities by any
of Duff & Xxxxxx Credit Rating Co., Standard & Poor's Corporation, and Xxxxx'x
Investors Service, Inc. or such organization shall have publicly announced that
it has under
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surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities.
8. The respective obligations of the Underwriters under this Agreement
with respect to the Securities are subject to the accuracy, on the date of this
Agreement and on the date of delivery, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Securities:
(a) At or before the date of delivery, no stop order suspending the
effectiveness of the Registration Statements nor any order directed to any
document incorporated by reference in the Prospectus shall have been issued
and prior to that time no stop order proceeding shall have been initiated
or threatened by the Commission and no challenge shall have been made by
the Commission to the accuracy or adequacy of any document incorporated by
reference in any Prospectus; any request of the Commission for inclusion of
additional information in the Registration Statements or any Prospectus or
otherwise shall have been complied with; and after the date of this
Agreement the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statements or the Prospectus
(or any document incorporated by reference therein) without the consent of
the Underwriters, which consent shall not be unreasonably withheld.
(b) No Underwriter shall have discovered and disclosed to the Company
prior to the date of delivery that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriters, is material, or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) The authorization and issue of the Securities, the Indenture, the
Registration Statement, the Prospectus, any amendments or supplements
thereto and all corporate proceedings and other legal matters incident
thereto shall be satisfactory in all respects to Xxxxxxx Xxxxxxx &
Xxxxxxxx, and the Company shall have furnished to them such documents as
they may reasonably have requested to enable them to pass upon the matters
referred to in this subparagraph.
(d) The Company shall have furnished to the Underwriters a certificate
of the Chairman of the Board, Vice Chairman of the Board, the President, or
any Vice President dated the date of delivery, in which such officer, to
the best of his 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 at or
prior to the date of delivery, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are
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contemplated by the Commission, and that, subsequent to the dates of the
most recent financial statements in the Prospectus, there has been no
material adverse change in the business, financial position, results of
operations or prospects of the Company and its subsidiaries, taken as a
whole, except as set forth or contemplated in the Prospectus.
(e) On the date of delivery, the Company shall have furnished to the
Underwriters a letter of Xxxxxx Xxxxxxxx LLP, dated the date of delivery,
which shall state, as of such date (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five business days prior to the date of such letter), the conclusions
and findings of said firm with respect to the financial information and
other matters covered by its letter furnished to the Underwriters
concurrently with the execution of this Agreement; and the effect of the
letter so to be furnished on the date of delivery shall be to confirm in
all material respects the conclusions and findings set forth in such prior
letter.
(f) On or before the date of delivery neither the Company nor any of its
Material Subsidiaries shall have sustained any loss on account of fire,
flood, accident or other calamity since the date hereof, (i) of such a
character as to interfere materially and adversely with the continuous
operation of the business of the Company and its Material Subsidiaries, or
(ii) which, in the judgment of the Underwriters, materially and adversely
affects the Company and its Material Subsidiaries taken as a whole,
regardless of whether or not such loss shall have been insured.
(g) On the date of delivery, the Company shall have furnished to the
Underwriters, the opinion of Xxxxxxx X. Xxxxxxx, Esq., Vice President,
General Counsel and Secretary of the Company, dated the date of delivery,
to the effect that:
(i) The Company is a validly organized and existing corporation in
good standing under the laws of the State of Delaware, has all necessary
corporate power and authority to conduct its business as described in
the Prospectus, and is duly qualified and in good standing in all
jurisdictions in which the failure to so qualify would have a material
adverse effect on the financial condition of the Company and its
Material Subsidiaries taken as a whole;
(ii) Each of the Company's Material Subsidiaries is a validly
organized and existing corporation in good standing under the laws of
the jurisdiction of its organization, has all necessary corporate power
and authority to conduct its business as described in the Prospectus and
is duly qualified to do business in all jurisdictions in which the
failure so to qualify would have a material adverse effect on the
financial condition of the Company and its Material Subsidiaries taken
as a whole;
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(iii) All the issued and outstanding shares of capital stock of
each Material Subsidiary of the Company, except for directors'
qualifying shares and as otherwise indicated in the Registration
Statement, are owned by the Company, free and clear of all liens,
encumbrances, security interests and, to the best of the knowledge of
such counsel, claims;
(iv) The Indenture has been validly authorized, duly executed and
delivered by the Company and the Trustee and duly qualified under the
Trust Indenture Act and is a valid and legally binding obligation of the
Company;
(v) The Securities have been validly authorized, duly executed by
the proper officers of the Company, duly authenticated by the Trustee in
the manner described in a certificate of the Trustee delivered to the
Underwriters (which authentication certificate may be relied upon
without an inspection of the Securities) and delivered, and are the
validly issued and outstanding and legally binding obligations of the
Company, entitled to the benefits of the Indenture;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) Neither the execution and delivery of this Agreement, the
Indenture or the Securities nor the consummation of the transactions
contemplated herein and therein will conflict with or constitute a
breach of, or a default under, the certificate of incorporation or
charter, as the case may be, or by-laws of the Company or any Material
Subsidiary, any material agreement, indenture or other instrument known
to such counsel by which the Company or any Material Subsidiary is
bound, or any applicable law, administrative regulation or court decree
applicable to the Company or any Material Subsidiary, or result in the
creation or imposition of any material lien, charge or encumbrance upon
any of the property or assets of the Company or any Material Subsidiary;
provided, however, with respect to any material agreement, indenture or
other instrument by which the Company or any Material Subsidiary is
bound, such counsel may rely upon a certificate of the Treasurer or
Controller of the Company as to the nonexistence of a default or breach
by the Company of any covenant or restriction respecting its financial
condition;
(viii) The Securities and the Indenture conform as to legal
matters in all material respects to the statements concerning them in
the Registration Statements and the Prospectus;
(ix) The Registration Statement, as of its effective date, and the
Prospectus as of the date it was filed with the Commission, comply as to
form in all material respects with the requirements of the Act and the
Trust Indenture Act and the applicable rules and regulations
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thereunder (except that no opinion need be expressed as to the financial
statements and other financial or statistical data contained therein);
and the documents incorporated in the Prospectus on the date of delivery
as of the dates they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act and
the applicable rules and regulations thereunder (except that no opinion
need be expressed as to the financial statements and other financial or
statistical data contained therein); and the statements made in the
Prospectus under the following (or comparable) captions "Description of
Debt Securities" and "Terms of the Securities", insofar as they are or
refer to statements of law or legal conclusions or summarize provisions
of documents, have been prepared or reviewed by such counsel and are in
all material respects correct;
(x) Such counsel does not know of any contracts or other documents
required to be filed or incorporated by reference which are not so filed
or incorporated by reference and does not know of any contracts or other
documents which are required to be described in the Prospectus which are
not so described;
(xi) No consent, approval, authorization, registration or
qualification of any governmental authority is required in respect of
the sale of the Securities other than registration thereof under the Act
and qualification of the Indenture under the Trust Indenture Act and any
necessary qualifications under securities or Blue Sky laws of the
various jurisdictions in which the Securities are to be offered;
(xii) The Registration Statement has become effective under the
Act, and to the best knowledge of such counsel, no proceeding for a
stop-order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose is pending or
threatened under Section 8(d) of the Act;
(xiii) Since the end of its latest fiscal year, the Company has
timely filed all documents and amendments to previously filed documents
required to be filed by it pursuant to Sections 12, 13, 14 or 15(d) of
the Exchange Act; and
(xiv) Such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company or
any of its Material Subsidiaries which would interfere with the issuance
and sale of the Securities as contemplated by this Agreement or is
required to be disclosed in the Prospectus which is not disclosed and
correctly summarized therein.
In addition, such counsel shall state that no facts have come to such
counsel's attention which lead such counsel to believe that the Registration
Statement contained, as of the date of the filing of the Annual Report on Form
10-K of the
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Company for the year ended December 31, _____, or the Prospectus as
of its date and the date of delivery contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein not misleading.
All the opinions, affidavits, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are satisfactory to Xxxxxxx
Xxxxxxx & Xxxxxxxx.
(h) On the date of delivery, the Underwriters shall have received the
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, dated the date of delivery, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus and other related matters as the Underwriters may
reasonably 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.
(i) Subsequent to the dates of the most recent financial statements in
the Prospectus, there shall not have been any material adverse change in
the business, financial position, results of operations or prospects of the
Company and its subsidiaries, taken as a whole, except as set forth or
contemplated in the Prospectus.
9. The Company will mail and make generally available to its security
holders, as soon as practicable and for the time period specified by Rule 158
under the Act, a consolidated earnings statement which shall satisfy the
provisions of Section 11(a) and Rule 158 of the Act and will advise the
Underwriters in writing when such statement has been made available.
10. Anything herein to the contrary notwithstanding, if the Company
shall fail to tender the Securities in accordance with this Agreement, or if the
Underwriters shall for any reason permitted under this Agreement (other than
pursuant to Paragraph 7 hereof) decline to purchase the Securities, the sole
liability of the Company to the several Underwriters will be to reimburse the
several Underwriters up to a reasonable amount for the fees and expenses of
their counsel and for such other out-of-pocket expenses as shall have been
incurred by them in connection with this Agreement and the proposed purchase of
the Securities, and upon demand the Company will pay the full amount thereof to
the Underwriters. The Company will not be obligated to reimburse the several
Underwriters on account of any such expenses if this Agreement shall be
terminated for the reasons set forth in Paragraph 3 hereof or shall be
terminated by the Underwriters pursuant to Paragraph 7 hereof.
11. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by _____________ on behalf of the Underwriters. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing and delivered or sent by mail, telex or facsimile transmission to
______________ with a copy, in the case of any notice pursuant to Paragraph 6 to
the ___________ and any notices to the Company shall be sufficient if given by
the Underwriters in writing and delivered or sent by mail, telex or facsimile
transmission addressed to Xxxx-XxXxx
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Corporation, Attention: Chief Financial Officer (Fax: 000-000-0000) (with a copy
to the General Counsel), Xxxx-XxXxx Center, X.X. Xxx 00000, Xxxxxxxx Xxxx,
Xxxxxxxx 00000 (Fax: 000-000-0000.)
12. This Agreement shall inure to the benefit of and be binding upon the
several Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the persons mentioned in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be for the benefit of any Participant and any person who
controls any Underwriter or any Participant within the meaning of Section 15 of
the Act, and except that the indemnities of the Underwriters shall be for the
benefit of the directors of the Company, such officers as shall have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Act.
13. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York. For purposes of this Agreement,
business day means any day on which the New York stock Exchange is open for
trading.
14. This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
XXXX-XxXXX CORPORATION
By:
-------------------------------------
Accepted:
By:
---------------------------------
By:
---------------------------------
Authorized Representative
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SCHEDULE I
Principal
Amount of
Underwriter Notes
----------- ---------
Total.................................................. $
=========
