EXHIBIT 1.2
THE XXXXX COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
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To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time The Xxxxx Company, a Maryland corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement (the "Agreement") shall not be
construed as an obligation of the Company to sell any of the Securities or
as an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-_____) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) of the
rules and regulations of the Commission under the Act which became
effective upon filing, no other document with respect to such registration
statement or document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission (other than the
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued, and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A of the rules and
regulations of the Commission under the Act to be part of the Initial
Registration Statement at the time it was declared effective and (ii) the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, but excluding the Statement of Eligibility and
Qualification of the Trustee on Form T-1 ("Form T-1"), each as amended at
the time such part of the Initial Registration Statement became effective
or such part of the Rule 462(b) Registration Statement, if any, became
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission pursuant to Rule 424(b) under the Act on or prior to the date of
this Agreement, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of the Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration Statement
that is incorporated by reference in the Registration Statement; and any
reference to the Prospectus shall be deemed to refer to and include the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form filed or transmitted for filing with the
Commission pursuant to Rule 424(b) under the Act and in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder; the Registration Statement and any amendment thereto do not and
will not, as of the applicable effective date, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Prospectus and any amendment or supplement thereto, as of the applicable
filing date, do not and will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus relating to such
Securities;
(d) The Company and its subsidiaries, taken as a whole, have not
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other than
issuances of capital stock (i) pursuant to bonus stock awards granted in
the ordinary course of business, (ii) upon exercise of options and stock
appreciation rights and upon conversions of convertible securities and
(iii) pursuant to the terms of the Contingent Stock Agreement, effective as
of January 1, 1996, executed in connection with the acquisition by the
Company of all of the outstanding equity interests in The Xxxxxx
Corporation and its affiliated partnership, Xxxxxx Xxxxxx Properties,
Limited Partnership (the "Contingent Stock Agreement"), in each case,
except with respect to bonus stock awards granted in the ordinary course of
business, which were outstanding as of the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus), or any material and adverse change in the long-term debt of
the Company and its subsidiaries, taken as a whole (it being understood
that, absent unusual circumstances, an increase in long term debt of the
Company and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to the Company and its subsidiaries, taken
as a whole), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, current value basis shareholders' equity or results of
operations (based on Funds from Operations) of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company and its subsidiaries have, or in those cases where
such subsidiary is a general partner in a partnership, such partnership
has, good and marketable fee simple and/or leasehold title (as the case may
be) to all real property (except for those lesser estates in real property
which, in the aggregate, are not material in value to the Company and its
subsidiaries), subject only to (A) those liens and encumbrances which have
been reflected generally or in the aggregate in the financial statements of
the Company as disclosed in the Prospectus or as are described
specifically, generally or in the aggregate in the Prospectus, or (B) such
liens and encumbrances (i) not required by generally accepted accounting
principles to be disclosed in the financial statements of the Company,
which (a) if all material covenants and conditions thereof are observed or
performed, will not materially interfere with the use made or proposed to
be made of such property by the Company and its subsidiaries or (b) are
reasonable and customary with regard to the normal operation of land and
improvements held for commercial purposes by first class owners and
operators of commercial real estate, or (ii) which were incurred after the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus in the ordinary course of business (including
financings) and which, in the aggregate (on a net basis), are not material
to the Company and its subsidiaries, taken as a whole. The Company and its
subsidiaries have title to the personal property owned by it or them and,
subject to the continued performance of the material covenants and
conditions of liens and encumbrances thereon, have the right to use such
without interference in the normal course of business, except for such
interference as would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Maryland, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the failure so to
qualify and maintain good standing would have a material adverse effect on
the Company and its subsidiaries, taken as a whole; and each subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation except for such failures to maintain good standing as would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned (with exceptions that are
disclosed (whether directly or through incorporation by reference) in the
Prospectus or are not material to the Company and its subsidiaries, taken
as a whole) directly or indirectly by the Company, free and clear of all
liens, encumbrances or claims (collectively, "Liens") except (i) Liens
relating to debt which has been disclosed specifically, generally or in the
aggregate in the Prospectus or incurred after the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus in the ordinary course of business (including financings), (ii)
Liens incurred in the ordinary course of business which are not materially
adverse to the operations of the Company and its subsidiaries, taken as a
whole, and (iii) restrictions on the transfer or use of the stock of any
subsidiary under any partnership, joint venture or lease agreements to
which the Company or any of its subsidiaries is a party;
(h) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms and the Designated Securities will conform to the
descriptions thereof contained in the Prospectus;
(i) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject except for such conflict,
breach, violation or default which does not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, nor will such
actions result in any violation of the provisions of the Articles of
Incorporation, as then amended or supplemented, or the Bylaws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any Pricing Agreement or the Indenture,
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act or the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which are likely, individually or in the
aggregate, to have a material adverse effect on the Company and its
subsidiaries taken as a whole, and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(k) The Company is not, and after giving effect to each offering
and sale of the Securities will not be, an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(l) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes; and
(m) The independent certified public accountants of the Company,
who have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such
Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer in federal (same day) funds, payable to the order
of the Company in the funds specified in such Pricing Agreement, all in the
manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives
and the Company may agree upon in writing, such time and date being herein
called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act no later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus
after the date of the Pricing Agreement relating to such Securities and
prior to the Time of Delivery for such Securities which shall be
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after the Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein for as long as may be
necessary to complete the distribution of such Securities; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after the Time of Delivery and
which are substantially similar to such Designated Securities, without the
prior written consent of the Representatives; and
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158).
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing and producing any Agreement among Underwriters, this Agreement,
any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any
other documents so long as such documents have been approved by the Company
in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of the Company's
counsel in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating agencies for rating the Securities; (v) any filing fees incident to,
and the reasonable fees and disbursements of the Company's counsel in
connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi)
the cost of preparing the Securities; (vii) the reasonable fees and
expenses of any Trustee and any agent of any Trustee and any transfer or
paying agent of the Company and the reasonable fees and disbursements of
counsel for any Trustee or such agent in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the Representatives' discretion, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such
Designated Securities are true and correct at and as of the Time of
Delivery for such Designated Securities and the condition that prior to
such Time of Delivery the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) (i) The Prospectus in relation to the applicable Designated
Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part
of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives;
(b) Counsel for the Underwriters, shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery, with
respect to the incorporation of the Company, the Indenture, the Securities,
the Registration Statement, the Prospectus, and such other related matters
as the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) The General Counsel of the Company, or other counsel for the
Company satisfactory to the Representatives, shall have furnished to the
Representatives such counsel's written opinion (which may be limited to the
laws of the State of Maryland and, with respect to clauses (xii) and (xiii)
below, the federal securities laws), dated the Time of Delivery in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the failure so to
qualify and maintain good standing would have a material adverse
effect on the Company and its subsidiaries, taken as a whole (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company);
(iv) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which is likely, individually or in the
aggregate, to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(vi) The Designated Securities have been duly authorized;
(vii) The Indenture has been duly authorized, executed and
delivered by the Company;
(viii) To the best of such counsel's knowledge, the issue
and sale of the Designated Securities, the compliance by the Company
with all of the provisions of the Designated Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject except for any such
conflict, breach, violation or default which does not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
nor will such actions result in any violation of the provisions of the
Articles of Incorporation, as then amended or supplemented, or Bylaws
of the Company or any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(ix) To the best of such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the
issue and sale of the Designated Securities or the consummation by the
Company of the other transactions contemplated by this Agreement, such
Pricing Agreement or the Indenture, except such as have been obtained
under the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters;
(x) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(xi) The documents incorporated by reference in the
Prospectus (other than the financial statements and related notes and
schedules therein and other financial data and statistical information
included therein or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission appeared
on their face to be appropriately responsive, in all material
respects, to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and nothing has come to such
counsel's attention to cause such counsel to believe that any of such
documents, when they were so filed contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(xii) Nothing has come to such counsel's attention to cause
such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related notes and schedules therein and other
financial data and statistical information included therein or omitted
therefrom and the Form T-1, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of the date of
such opinion, the Prospectus or any amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related notes and schedules therein and other
financial data and statistical information included therein or omitted
therefrom and the Form T-1, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
and such counsel does not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of
a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference or
described as required.
(d) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for
the Company, or other counsel for the Company satisfactory to the
Representatives, shall have furnished to the Representatives their written
opinion (which will be limited to the laws of the State of New York and
federal laws and may rely on an opinion of the General Counsel of the
Company, or other counsel for the Company reasonably satisfactory to the
Representatives, as to the laws of the State of Maryland), dated the Time
of Delivery in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Designated Securities, when duly executed,
authenticated, issued and delivered by the Company, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms;
(ii) The Indenture constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms;
(iii) The Indenture has been qualified under the Trust
Indenture Act;
(iv) The Indenture conforms, and the Designated Securities
will conform, in all material respects to the descriptions thereof
contained in the Prospectus; and
(v) At the time the Registration Statement was declared
effective by the Commission, the Registration Statement and the
Prospectus (other than (a) the financial statements, notes and
schedules thereto, (b) other financial data and statistical
information included therein or omitted therefrom, (c) the documents
incorporated by reference therein and (d) the Form T-1, included
therein, as to which such counsel need not express an opinion),
appeared on their face to be responsive as to form in all material
respects to the requirements of the Act and the Trust Indenture Act
and the rules and regulations promulgated thereunder.
The opinion set forth in paragraphs (i) and (ii) above is subject to:
(i) applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other laws now or hereafter in effect affecting creditors'
rights generally; and (ii) general principles of equity (including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness) whether such principles are considered in a proceeding in
equity or at law;
(e) On the date of the Pricing Agreement for such Designated
Securities but prior to the execution of the Pricing Agreement with respect
to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent certified public accountants of the
Company who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement, or such other independent certified public accountants as are
reasonably satisfactory to the Representatives, shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) The Company and its subsidiaries, taken as a whole, have
not sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus and (ii) since the respective dates as of
which information is given in the Prospectus there shall not have been any
change in the capital stock (other than issuances of capital stock pursuant
to bonus stock awards granted in the ordinary course of business, upon
exercise of options and stock appreciation rights or upon conversion of
convertible securities in each case, except with respect to bonus stock
awards granted in the ordinary course of business, which were outstanding
as of the date of the latest audited financial statements included or
incorporated by reference in the Prospectus or pursuant to the Contingent
Stock Agreement) or any material adverse change in the long-term debt of
the Company and its subsidiaries, taken as a whole (it being understood
that, absent unusual circumstances, an increase in long-term debt of the
Company and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to the Company and its subsidiaries, taken
as a whole), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, current value basis shareholders' equity or results of
operations (based on Funds from Operations) of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in the Representatives' reasonable judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities; and
(i) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company in such form and
executed by such officers of the Company as shall be satisfactory to the
Representatives, as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section, and as to such other matters as
the Representatives may reasonably request.
8. (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 an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the
Securities, or any amendment or supplement thereto, 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 in light of the circumstances under which they were made not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus relating to such Securities.
(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 an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly 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
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the 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 shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. If the
indemnifying party does not assume the defense of such action, it is
understood that the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to one separate firm of local
attorneys in each such jurisdiction) at any time for all such indemnified
parties, which firms shall be designated in writing by you, if the
indemnified parties under this Section consist of any Underwriter of
Designated Securities or any of its respective controlling persons, or by
the Company, if the indemnified parties under this Section consist of the
Company or any of its directors, officers, administrative trustees or
controlling persons. The indemnifying party shall not be liable for any
settlement of an action or claim for monetary damages which an indemnified
party may effect without the consent of the indemnifying party, which
consent shall not be unreasonably withheld. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim),
unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to, or
an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total commissions or discounts received by such Underwriters in respect
thereof. 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 required
to be stated therein or necessary in order to make the statements therein
not misleading relates to information supplied by the Company on the one
hand or by any such Underwriters on the other and the parties' relative
intent, 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 contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in 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 such action or claim. 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 public
offering price at which the applicable Designated 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 obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 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 8 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 officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter
the Representatives do not arrange for the purchase of such Designated
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities
on such terms. In the event that, within the respective prescribed period,
the Representatives notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Designated Securities for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro-rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof or if the condition in Section 7(h) is not satisfied, the Company
shall not then be under any liability to any Underwriter with respect to
the Designated Securities covered by such Pricing Agreement except as
provided in Sections 6 and 8 hereof; but, if for any other reason,
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters,
and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made
or given by such Representatives jointly or by such of the Representatives,
if any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement, Attention: General
Counsel; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any
of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
THE XXXXX COMPANY
By:
-----------------------------------
Name:
Title:
[NAMES OF REPRESENTATIVES]
By:
-----------------------
Name:
Title:
On behalf of each of the Underwriters
ANNEX I
Pricing Agreement
-----------------, ----
[Name(s) of Representative(s)]
As Representative(s) of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
The Xxxxx Company, a Maryland corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ____________, ____ (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of the Underwriters of the Designated Securities pursuant to Section
12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II
hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us [one for the Company and one for each of the
Representatives plus one for each counsel] counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted
to the Company for examination, upon request, but without warranty on the
part of the Representatives as to the authority of the signers thereof.
Very truly yours,
THE XXXXX COMPANY
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representatives]
By:
------------------------------
Name:
Title:
On behalf of each of the Underwriters
ANNEX I
SCHEDULE I
----------
Principal Amount
of Designated
Underwriter Securities to be Purchased
----------- --------------------------
--------------------------
--------------------------
Total.............................. ==========================
ANNEX I
SCHEDULE II
-----------
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ________,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount (or for Original Issue Discount
Securities that do not currently pay interest, the issue price) of
the Designated Securities, plus accrued interest[, if any,] from
to [and accrued amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and accrued amortization[, if any,] from
to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging
at least twenty-four hours prior to the Time of Delivery at the
office of [The Depository Trust Company or its designated
custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its
designated custodian, to be made available for checking by the
Representatives at least twenty-four hours prior to the Time of
Delivery at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House (same day) funds
TIME OF DELIVERY:
a.m. (New York City time), ............... , ......
INDENTURE:
Indenture, dated as of February 24, 1995, between the Company and
The First National Bank of Chicago, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ................, ........]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through
the sinking fund, in whole or in part at the option of the
Company, in the amount of [$ ] or an integral multiple thereof,
[on or after ..........................., at the following redemption
prices (expressed in percentages of principal amount). If [redeemed on
or before ............, ....... %, and if] redeemed during the
12-month period beginning ................, ........
REDEMPTION
YEAR PRICE
---- -----
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ................,
........, at the election of the Company, at a redemption price equal
to the principal amount thereof, plus accrued interest to the date of
redemption.]] [Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for changes
in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions] [The Designated Securities are entitled
to the benefit of a sinking fund to retire [$ ] principal amount of
Designated Securities on ........................ in each of the years
through ........................ at 100% of their principal amount
plus accrued interest[, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional [$ ]
principal amount of Designated Securities in the years
........................ through ........................ at 100% of
their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities,
insert--EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter
the annual interest rate will be adjusted on ................,
........, and to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with year
........................ maturities as of the [insert date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities,
insert--FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and thereafter will be
adjusted [monthly] [on each ............, and ...............] [to an
annual rate of % above the average rate or year
[month][securities][certificates of deposit] issued by
........................ and [insert names of banks].] [and the annual
interest rate [thereafter] [from ........................ through
........................ ] will be the interest yield equivalent of
the weekly average per annum market discount rate for -month Treasury
bills plus % of Interest Differential (the excess, if any, of (i) the
then current weekly average per annum secondary market yield for
................-month certificates of deposit over (ii) the then
current interest yield equivalent of the weekly average per annum
market discount rate for ................ month Treasury bills); [from
and thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*
----------------------
* A DESCRIPTION OF PARTICULAR TAX, ACCOUNTING OR OTHER UNUSUAL FEATURES
(SUCH AS THE ADDITION OF EVENT RISK PROVISIONS) OF THE DESIGNATED
SECURITIES SHOULD BE SET FORTH, OR REFERENCED TO AN ATTACHED AND
ACCOMPANYING DESCRIPTION, IF NECESSARY, TO ENSURE AGREEMENT AS TO THE TERMS
OF THE DESIGNATED SECURITIES TO BE PURCHASED AND SOLD. SUCH A DESCRIPTION
MIGHT APPROPRIATELY BE IN THE FORM IN WHICH SUCH FEATURES WILL BE DESCRIBED
IN THE PROSPECTUS SUPPLEMENT FOR THE OFFERING.
ANNEX II
Accountants' Letter
-------------------
Pursuant to Section 7(e) of the Underwriting Agreement, the Company's
independent certified public accountants shall furnish letters to the
effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations thereunder adopted by the
Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related rules and regulations thereunder adopted by the Commission;
and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
[separately] furnished to the Representatives [and are attached
hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [have been
separately furnished to the Representatives] [are attached hereto];
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below 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, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements 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 rules and regulations
adopted by the Commission;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus for them to be
in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the rules
and regulations thereunder adopted by the Commission or the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date (where practicable not more
than five days prior to the date of such letter), there have been
any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus or issuance
pursuant to the Contingent Stock Agreement) or any increase in
excess of 5% in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net
current assets or other items specified by the Representatives,
or any increases in any items specified by the Representatives,
in each case as compared with amounts shown in the latest balance
sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in funds from operations or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
audit in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the
letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
