Exhibit 1
XXXXXX & XXXXX CORPORATION
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
February 5, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281
X.X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX BROTHERS INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX & CO. INCORPORATED
1585 Broadway - 2nd Floor
New York, New York 10036
Ladies and Gentlemen:
Xxxxxx & Xxxxx Corporation, a Tennessee corporation (the "Company",
which term shall refer to Xxxxxx & Xxxxx Corporation and its subsidiaries
considered as one enterprise, except where the context otherwise requires),
confirms its agreement with each of you, acting directly or through an affiliate
(each, an "Agent", and collectively, the "Agents"), with respect to the issue
and sale by the Company of its Medium-Term Notes Due Nine Months or More from
Date of Issue (the "Notes"). The Notes will be issued pursuant to the Indenture
dated as of August 1, 1998, as amended and supplemented by the Supplemental
Indenture No. 1 dated as of February 10, 1999, as further amended, modified and
supplemented from time to time, (collectively, the "Indenture"), between the
Company and The Bank of New York, as trustee (the "Trustee"). As of the date
hereof, the Company has authorized the issuance and sale of up to $150,000,000
aggregate principal amount of Notes through or to the Agents pursuant to the
terms of this Agreement. It is understood, however, that the Company may from
time to time authorize the issuance of additional Notes and that such additional
Notes may be sold through or to the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and one or more Agents) to such Agent(s) as principal for resale
to purchasers. Subject to the terms of this Agreement, the Company also reserves
the right to sell Notes directly to purchasers on its own behalf rather than
through or to the Agents.
The Company has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 333-61465) on August 14,
1998 for the registration of debt securities, including the Notes, and common
stock, preferred stock and rights, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the SEC under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the SEC and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statement and the
prospectus constituting a part thereof, as supplemented by any prospectus
supplement and pricing supplement relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agents for such use.
If the Company has filed an abbreviated registration statement to register
additional Notes pursuant to Rule 462(b) under the 1933 Act, then any reference
herein to the term "Registration Statement" shall include such Rule 462(b)
registration statement.
SECTION 1. APPOINTMENT AS AGENTS. (a) APPOINTMENT OF AGENTS. Subject
to the terms and conditions stated herein, the Company hereby appoints the
Agents as agents of the Company for the purpose of soliciting purchases of the
Notes from the Company by others and agrees that, except as otherwise
contemplated herein, whenever the Company determines to sell Notes directly to
one or more Agents as principal for resale to others, it will enter into a Terms
Agreement (as hereinafter defined) relating to such sale in accordance with the
provisions of Section 3(b) hereof. The Company from time to time may offer Notes
for sale otherwise than through the Agents, solicit offers to purchase Notes
through agents other than the Agents or accept offers to purchase Notes through
an agent other than the Agents, provided that (i) the Company and such agent
shall enter into an agreement with respect to such purchases that is
substantially similar to this Agreement, including the Schedules hereto, and
(ii) the Company shall provide the Agents with a copy of such agreement promptly
following the execution thereof. Without the Company's prior written consent,
the Agents are not authorized to appoint sub-agents or to engage the services of
any other broker or dealer in connection with the offer or sale of the Notes,
except that the Agents may utilize a selling or dealer group in connection with
the resale of any Notes purchased from the Company by them as principal for
resale to others.
(b) REASONABLE BEST EFFORTS SOLICITATIONS; RIGHT TO REJECT
OFFERS. Upon receipt of instructions from the Company, each Agent will use
its reasonable best efforts to solicit purchases of such principal amount
of the Notes as the Company and the Agents shall agree upon from time to
time during the term of this Agreement, it being understood that the
Company shall not approve the solicitation of purchases of Notes in excess
of the amount which shall be authorized by the Company from time to time
or in excess of the aggregate principal amount of Notes registered
pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold or for monitoring the availability of Notes
for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes received
by such Agent, other than those offers rejected by such Agent. Each Agent
shall have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of such Agent's agreement contained
herein. The Company may accept or reject any proposed purchase of the
Notes, in whole or in part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In
soliciting purchases of the Notes on behalf of the Company, each Agent
shall act solely as agent for the Company and not as principal. Each Agent
shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent, as agent, and accepted by the Company. The Agents
shall not have any liability to the Company in the event any such purchase
is not consummated by a purchaser for any reason. The Agents shall not
have any obligation to purchase Notes from the Company as principal, but
an Agent may agree from time to time to purchase Notes as principal.
(d) RELIANCE. The Company and the Agents agree that any Notes
the placement of which an Agent arranges shall be placed by such Agent,
and any Notes purchased by an Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company
contained herein and on the terms and conditions and in the manner
provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants to each Agent as of the date hereof, as of the date of
each acceptance by the Company of an offer for the purchase of Notes (whether
through such Agent as agent or to such Agent as principal), as of the date of
each delivery of Notes (whether through such Agent as agent or to such Agent as
principal) (the date of each such delivery to an Agent as principal being
hereafter referred to as a "Settlement Date"), and as of any time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes or that relates exclusively to an offering of
debt securities other than the Notes) (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(i) DUE INCORPORATION AND QUALIFICATION. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Tennessee, has corporate power and
authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus; and
is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to so qualify would not have a material adverse effect on the
financial condition, the earnings or business affairs of the Company and
its subsidiaries considered as one enterprise (a "Material Adverse
Effect").
(ii) SUBSIDIARIES. Each subsidiary of the Company which is a
significant subsidiary, as defined in Rule 405 of Regulation C of the 1933
Act Regulations (each, a "Significant Subsidiary"), has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus; and is duly qualified to
transact business and is in good standing in each jurisdiction in which
such qualification is required, except where the failure to so qualify
would not have a Material Adverse Effect; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and,
except for directors' qualifying shares (except as otherwise stated in the
Prospectus), is owned by the Company, directly or through one or more
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, charge, claim or equity.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the SEC
promulgated thereunder (the "1939 Act Regulations"); the Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective and as of the applicable Representation Date, will not, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and the Prospectus, as of the date hereof does not, and as
of the applicable Representation Date will not, include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that the
Company makes no representations or warranties as to statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Agent expressly for use in the
Registration Statement or the Prospectus or to those parts of the
Registration Statement which constitute statements of Eligibility and
Qualification of Trustees (Form T-1) under the 1939 Act.
(iv) DESIGNATED INDENTURE. As of the date hereof, the Designated
Indenture (as hereinafter defined) complied or, as of each Representation
Date, will comply in all material respects with the requirements of the
1939 Act and the 1939 Act Regulations.
(v) INCORPORATED DOCUMENTS. The documents incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with the
SEC, complied or when so filed will comply, as the case may be, in all
material respects with the requirements of
the 1934 Act and the rules and regulations promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were or are made, not
misleading; PROVIDED, HOWEVER, that the Company makes no representations
or warranties as to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Agents expressly for use in the Registration Statement or the Prospectus.
(vi) ACCOUNTANTS. Each of the accountants who certified the
financial statements included or incorporated by reference in the
Prospectus is an independent public accountant as required by the 1933 Act
and the 1933 Act Regulations.
(vii) FINANCIAL STATEMENTS. The consolidated financial statements
included or incorporated by reference in the Prospectus present fairly the
financial position of the Company as of the dates thereof and the results
of operations, changes in common stockholders' investment and cash flows
of the Company for the respective periods covered thereby, subject, in the
case of unaudited financial statements and the notes thereto, to normal
year-end adjustments, all prepared in conformity with generally accepted
accounting principles applied on a consistent basis (except as stated in
such financial statements) throughout the period(s) involved; and the
financial schedules included or incorporated by reference in the
Prospectus meet the requirements of the 1933 Act Regulations or the 1934
Act Regulations, as applicable.
(viii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT; THE
INDENTURE; AND THE NOTES. The execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by the Company; the Indenture has been, and each
supplement thereto, if any, at such time and the supplement thereto or
officers' certificate setting forth the terms of the Notes (the
Indenture, as so supplemented by each such supplement or officers'
certificate, being herein referred to as the "Designated Indenture")
will have been, duly authorized by the Company; the Designated
Indenture, when duly executed and delivered by the Company and the
Trustee, will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting enforcement of
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); the Notes have been duly and validly authorized for
issuance, offer and sale pursuant to this Agreement and, when executed,
authenticated and issued pursuant to the provisions of the Designated
Indenture and this Agreement against payment of the consideration
therefor, will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting enforcement of creditors'
rights generally or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law)
and
except as enforcement thereof may be limited by (i) requirements that a
claim with respect to any Notes payable other than in U.S. dollars (or a
foreign currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (ii) governmental authority to
omit, delay or prohibit the making of payments outside the United States;
the Notes and the Designated Indenture will be substantially in the form
heretofore delivered to the Agents and conform in all material respects to
the descriptions thereof contained in the Prospectus; and the Notes will
be entitled to the benefits provided by the relevant Designated Indenture.
(ix) MATERIAL ADVERSE CHANGES OR MATERIAL TRANSACTIONS. From the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein or
contemplated thereby, the Company has not entered into any transactions
material to the Company and there has been no material adverse change in
the financial condition, the earnings or business affairs of the Company
and its subsidiaries considered as one enterprise (a "Material Adverse
Change") whether or not arising in the ordinary course of business.
(x) NO DEFAULTS; REGULATORY APPROVALS. Neither the Company nor any
of its Significant Subsidiaries is in violation of its charter or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it is a
party or by which it or any of them or their properties may be bound,
except for such defaults that would not have a Material Adverse Effect;
the execution and delivery of this Agreement and the Designated Indenture
and the consummation of the transactions contemplated herein, therein and
pursuant to any applicable Terms Agreement have been duly authorized by
all necessary corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of its Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its Significant Subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or
assets of the Company or any such Significant Subsidiary is subject,
except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the charter or by-laws
of the Company or any material violation of the provisions of the charter
or by-laws of any of the Company's Significant Subsidiaries or any law or
administrative regulation, or any administrative or court order or decree
currently in effect with respect to the Company or any Significant
Subsidiary.
(xi) LEGAL PROCEEDINGS. Except as set forth in the Prospectus, there
is no pending, or, to the best knowledge of any financial, legal or
executive officer of the Company, threatened action, suit or proceeding
before any court or governmental agency or body which individually (or in
the aggregate in the case of any group of related lawsuits) is expected to
have a Material Adverse Effect or adversely affect the ability of the
Company to perform its obligations under this Agreement or the Indenture.
(xii) DESCRIPTION OF SECURITIES. The statements in the Prospectus
under the caption "Description of Securities", "Description of Notes" and
"United States Taxation", or any similar caption, insofar as they
summarize certain contracts, instruments or documents, fairly and
accurately present the information disclosed therein in all material
respects.
(xiii) NO AUTHORIZATION, APPROVAL OR CONSENT REQUIRED. No
authorization, approval or consent of any court or governmental
authority or agency is necessary for the consummation by the Company of
the transactions hereunder, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or the 1939 Act
Regulations or the securities or "blue sky" laws of the various states
and any such authorizations, approvals or consents which the Agents are
required to obtain.
(xiv) PATENTS AND TRADEMARKS. The Company and each of its
subsidiaries each owns or possesses, or can acquire on reasonable terms,
adequate patents, patent licenses, trademarks, service marks and trade
names necessary to carry on their business as presently conducted, except
where the failure to own or possess the same would not have a Material
Adverse Effect.
(xv) ENVIRONMENTAL MATTERS. Except as disclosed in the Registration
Statement and the Prospectus, no notice, notification, demand, request for
information, citation, summons or order has been issued, no complaint has
been filed, no penalty has been assessed and no investigation or review is
pending, or, to the best knowledge of any financial, legal or executive
officer of the Company, is threatened by any governmental or other entity
with respect to any alleged violation by the Company or any of its
subsidiaries of any domestic law, ordinance, rule, regulation or order of
any governmental entity relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous, substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials in connection with the conduct of the
business of the Company or any of its subsidiaries, which violation, if
determined adversely would have a Material Adverse Effect; and to the best
knowledge of any financial, legal or executive officer of the Company, the
businesses of the Company and each of its subsidiaries are each being
operated, and each such business is, in compliance with all applicable
environmental laws, rules and regulations, except where the failure to
comply therewith would not have a Material Adverse Effect.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer
of the Company and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes or the sale of Notes to one or more Agents
as principal shall be deemed to be a representation and warranty by the Company
to the Agents as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. (a)
SOLICITATIONS AS AGENT. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, each
Agent agrees, as an agent of the Company, to use its reasonable best efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company by the Agents, the Agents will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto. To the extent permitted by Section l(a) hereof, the
Agents may reallow all or any portion of the commission payable pursuant hereto
to dealers or purchasers in connection with the offer and sale of any Notes.
The purchase price, interest rate or formula, maturity date and
other terms of the Notes shall be agreed upon by the Company and the applicable
Agent and set forth in a pricing supplement to the Prospectus to be prepared
following each acceptance by the Company of an offer for the purchase of Notes.
Except as may be otherwise provided in such pricing supplement to the
Prospectus, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. All Notes sold
through an Agent as agent will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and such Agent.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to one or more Agents
as principal shall be made in accordance with the terms contained herein and
(unless the Company and such Agent(s) shall otherwise agree) pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by such Agent(s). Each such separate agreement
(which may be an oral agreement, confirmed in writing as promptly as practicable
as described below if requested by the Company, between the applicable Agent(s)
and the Company) is herein referred to as a "Terms Agreement". Unless the
context otherwise requires, each reference contained herein to "this Agreement"
shall be deemed to include any applicable Terms Agreement between the Company
and the applicable Agent(s). Each such Terms Agreement, whether oral (and, if
requested by the Company, confirmed in writing as promptly as practicable, which
confirmation may be by facsimile transmission or otherwise) or in writing, shall
include such information (as applicable) as is specified in Schedule B hereto.
An Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Notes to be purchased by the applicable Agent(s)
pursuant thereto, the price to be paid to the Company for such Notes (which, if
not so specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth in Schedule A hereto), the time and place of
delivery of and payment for
such Notes, any default provisions with respect to Notes to be purchased by more
than one Agent and such other provisions (including further terms of the Notes)
as may be mutually agreed upon. An Agent may utilize a selling or dealer group
in connection with the resale of the Notes purchased and may offer all or any
portion of the discount received from the Company to such selling or dealer
group. Such Terms Agreement shall also specify the requirements for any
officers' certificate, opinions of counsel and "comfort" letters pursuant to
(and consistent with) Sections 7(b), 7(c) and 7(d) hereof.
(c) ADMINISTRATIVE PROCEDURES. The Agents and the Company agree to
perform, and the Company agrees to cause the Trustee to agree to perform, the
respective duties and obligations specifically provided to be performed by them
in the Medium-Term Note Administrative Procedures (attached hereto as Exhibit A)
(the "Procedures"), as may hereafter be amended from time to time. The
Procedures may be amended only by written agreement between the Company and the
Agents.
SECTION 4. COVENANTS OF THE COMPANY. The Company covenants with the
Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
promptly of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the SEC for filing of any supplement to
the Prospectus or any document that would as a result thereof be
incorporated by reference in the Prospectus (other than a supplement
relating to the offering of debt securities other than the Notes), (iii)
the receipt of any comments from the SEC with respect to the Registration
Statement or the Prospectus, (iv) any request by the SEC for any amendment
to the Registration Statement or any supplement to the Prospectus or for
additional information relating thereto, (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement,
and (vi) any withdrawal or lowering by Standard & Poor's Ratings Group or
Xxxxx'x Investors Service, Inc. of its rating of any debt securities
(including the Notes) of the Company or the public announcement by any
such rating agency that it has under surveillance or review, with possible
negative implications, its rating of any such debt securities. Except as
otherwise provided in subsection (k) of this Section, the Company will use
its reasonable best efforts to prevent the issuance of any such stop order
and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. Except as otherwise provided
in subsection (k) of this Section, the Company will give the Agents notice
of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for a change in the interest
rates of Notes or an amendment or supplement relating to an offering of
debt securities other than the Notes), whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish the
Agents with copies of any such amendment or supplement or other documents
proposed to be filed or used a reasonable time in advance of such proposed
filing or use, as the case may be; PROVIDED that the requirements of this
paragraph shall not apply to the Company's proxy statement, its Annual
Report on Form 10-K, its Quarterly Reports on Form 10-Q or its
Current Reports on Form 8-K, so long as the Company shall furnish the
Agents with copies of such documents, upon request, after the date of
filing thereof with the SEC.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to each Agent as many signed and conformed copies of
the Registration Statement (as originally filed) and of all amendments
thereto, whether filed before or after the Registration Statement becomes
effective, copies of all exhibits and documents filed therewith or
incorporated by reference therein as such Agent may reasonably request;
and the Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as such Agent shall reasonably
request so long as such Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare,
with respect to any Notes to be sold through or to an Agent pursuant to
this Agreement, a pricing supplement to the Prospectus with respect to
such Notes in a form previously approved by the Agents and will file such
pricing supplement pursuant to Rule 424(b)(3) under the 1933 Act not later
than the close of business of the SEC on the fifth business day after the
date on which such pricing supplement is first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term
of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Agents
or counsel for the Company, to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, to
amend the Registration Statement or to amend or supplement the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given to the Agents to cease the
solicitation of offers to purchase the Notes in their capacity as agents
and to cease sales of any Notes an Agent may then own as principal
pursuant to a Terms Agreement, and the Company will promptly prepare and
file, subject to Section 4(b) hereof, with the SEC such amendment or
supplement, whether by filing documents pursuant to the 1934 Act, the 1933
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with
such requirements.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except
as otherwise provided in subsection (k) of this Section, on the date of,
but not prior to, the release to the general public of interim financial
statement information related to the Company with respect to each of the
first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish
such information to the Agents, confirmed in writing, and shall, subject
to Section 4(b) hereof and promptly following any such release, cause the
Prospectus to be amended or supplemented to include or incorporate by
reference financial information with respect
thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations
as shall be necessary for an understanding thereof or as shall be required
by the 1933 Act or the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, on the date of, but
not prior to, the release to the general public of financial information
included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall, subject to
Section 4(b) hereof and promptly following any such release, cause the
Registration Statement and the Prospectus to be amended, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise,
to include or incorporate by reference such audited financial statements
and the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) EARNINGS STATEMENTS. The Company will make generally available
to its security holders as soon as practicable after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering each
twelve-month period beginning, in each case, not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement with respect to
each sale of Notes.
(i) 1934 ACT FILINGS. During the period when the Prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Notes, the Company will, subject to Section 4(b) hereof, file promptly all
documents required to be filed with the SEC pursuant to Section 13, 14 or
15(d) of the 1934 Act.
(j) STAND-OFF AGREEMENT. Except as may otherwise be provided in a
Terms Agreement, between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will
not, without the prior written consent of the applicable Agent(s), offer
or sell, or enter into any agreement to sell, any debt securities issued
or guaranteed by the Company with comparable terms in any public offering
(other than the Notes that are to be sold pursuant to such Terms
Agreement, commercial paper in the ordinary course of business and
tax-exempt securities).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of the last sentence of subsection
(a) of this Section or with the provisions of subsection (b), (e), (f) or
(g) of this Section during any period from the time (i) the Agents shall
have suspended solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Company and (ii) none of the Agents
shall then hold any Notes as principal purchased pursuant to a Terms
Agreement (or, if an Agent holds Notes as principal pursuant to a Terms
Agreement, such Agent has held such
Notes for more than 180 days), to the time the Company shall determine
that solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with such Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS. The obligations of the Agents
to solicit offers to purchase the Notes as agents of the Company, the
obligations of any purchasers of the Notes sold through an Agent as agent, and
any obligation of an Agent to purchase Notes pursuant to a Terms Agreement or
otherwise will be subject to the accuracy of the representations and warranties
of the Company contained herein and to the accuracy of the statements of the
officers of the Company made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company of all of
its covenants and agreements herein contained and to the following further
conditions precedent.
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof, in form and
substance reasonably satisfactory to the Agents:
(1) OPINION OF THE GENERAL COUNSEL OF THE COMPANY. The opinion of
the General Counsel of the Company, or other counsel reasonably
satisfactory to the Agents, substantially in the form attached hereto as
Exhibit B.
(2) OPINION OF SPECIAL COUNSEL TO THE COMPANY. The opinion of Xxxxx
Xxxx & Xxxxxxxx, special counsel for the Company, as to matters of New
York law and the federal laws of the United States, to the effect that:
(i) Assuming the due authorization, execution and delivery of
the Designated Indenture by the Company and the Trustee, the
Designated Indenture constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except (i) to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting enforcement of
creditors' rights generally, (ii) as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law) and (iii) to
governmental authority that limits, delays or prohibits the making
of payments in foreign currency or currency units or payments
outside the United States, and except that the waiver set forth in
Section 515 of the Indenture may be deemed unenforceable.
(ii) Assuming the due authorization, execution and delivery of
the Notes, the Notes, when authenticated and delivered pursuant to
the provisions of the Designated Indenture and this Agreement
against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Designated Indenture and will be enforceable against
the Company in accordance with their terms, except (i) to the extent
that enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar
laws now or
hereafter in effect relating to or affecting enforcement of
creditors' rights generally, (ii) as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law) and (iii) to
governmental authority that limits, delays or prohibits the making
of payments in foreign currency or currency units or payments
outside the United States.
(iii) The Designated Indenture has been duly qualified under
the 1939 Act.
(iv) The Notes and the Designated Indenture conform in all
material respects as to legal matters to the descriptions thereof
contained in the Prospectus.
(v) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance, sale, delivery and performance of the Notes hereunder or
for the execution, delivery or performance of the Designated
Indenture by the Company, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or the 1939 Act
Regulations or the securities or "blue sky" laws of the various
states.
(vi) The statements made in the Prospectus under the caption
"Description of Securities", "Description of Notes", and "United
States Taxation", to the extent that they constitute matters of law
or legal conclusions or summarize certain contracts, instruments or
documents, fairly and accurately present the information disclosed
therein in all material respects.
(vii) Based solely on written advice addressed to the Company
by the Commission, the Registration Statement has become effective
under the 1933 Act. To the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement is
in effect and no proceedings for that purpose have been instituted
or are pending or threatened under the 1933 Act.
(viii) Such counsel has participated in the preparation of the
Registration Statement and the Prospectus and has generally reviewed
and discussed with certain officers and employees of the Company,
the Company's independent public accountants and representatives of
the Agents the information furnished therein, but such counsel has
not conducted any independent check or verification of the accuracy
or completeness of such information (except as otherwise stated). On
the basis of such consideration, review and discussion, (A) such
counsel believes each part of the Registration Statement (including
the documents incorporated by reference therein) (except for the
financial statements and related schedules and other financial data
contained therein and the Trustee's Statement of Eligibility on Form
T-1, as to which such counsel need express no belief) filed with the
Commission pursuant to the 1933 Act relating to the Notes, when such
part became effective, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the
statements therein not misleading, (B) such counsel is of the
opinion the Registration Statement and the Prospectus (except for
the documents incorporated by reference therein and the financial
statements and related schedules and other financial data included
therein and the Trustee's Statement of Eligibility on Form T-1, as
to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the 1933 Act and the
1939 Act and (C) such counsel believes the Registration Statement
and the Prospectus (except for the financial statements and related
schedules and other financial data included therein and the
Trustee's Statement of Eligibility on Form T-1, as to which such
counsel need express no belief), on the date of this Agreement, on
the date of any Terms Agreement or at the Settlement Date with
respect thereto, does not or did not, as the case may be, contain
any 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.
In giving such opinion, such counsel may state in rendering their
opinion set forth in paragraphs (i) and (ii) above that, as of the date of
such opinion, a judgment for money in an action based on Notes payable in
foreign or composite currencies in a federal or state court in the United
States ordinarily would be enforced in the United States only in United
States dollars and that the date used to determine the rate of conversion
of the foreign or composite currency in which a particular Note is payable
into United States dollars will depend on various factors, including which
court renders the judgment. In giving such opinion, such counsel may
indicate that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of
the Company and the Significant Subsidiaries and certificates of public
officials. Except as otherwise required in accordance with Section 7(c)
hereof, such counsel may also state that the opinions given do not address
any application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission
to Notes the payments of principal or interest on which will be determined
by reference to one or more currency exchange rates, commodity prices,
equity indices or other items.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of Xxxxx & Wood
LLP, counsel to the Agents, as to matters of New York law and the federal
law of the United States, covering the matters referred to in
subparagraphs (a)(2)(i) to (iv) and (a)(2)(vi) (except with respect to
"United States Taxation") to (viii) of this Section 5.
(b) OFFICERS' CERTIFICATE. On the date hereof, the Agents shall have
received a certificate of the Chief Executive Officer, the President or any Vice
President and the Vice President-Finance, the Treasurer or the Vice
President-General Counsel of the Company, dated as of the date hereof, to the
effect that (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, other than as set forth or
incorporated by reference therein, there has not been any Material Adverse
Change, (ii) the representations and warranties of the Company contained in
Section 2 hereof are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, except to the extent
that such representations and warranties expressly relate to an earlier date or
later date (in which case such representations and warranties are true and
correct on and as of such earlier date or
will be true and correct on and as of such later date, as the case may be),
(iii) the Company has complied with all agreements and satisfied all conditions
set forth herein and in any applicable Terms Agreement on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv)
that no stop order suspending the effectiveness of the Registration Statement is
in effect and no proceedings for that purpose have been initiated or, to the
best of such officers' knowledge, threatened by the SEC.
(c) COMFORT LETTERS. On the date hereof, the Agents shall have
received a "comfort" letter of KPMG LLP or successor accounting firm of national
standing (as well as a "comfort letter" of each applicable accountant covering
financial statements of any entity other than the Company which are included or
incorporated by reference in the Registration Statement and the Prospectus),
dated as of the date hereof and in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent public accountants with respect to the
Company (or such other entity, as the case may be) and its subsidiaries
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations.
(ii) In their opinion, the consolidated financial statements of the
Company (or such other entity, as the case may be) and the related
financial statement schedules audited by them and included or incorporated
by reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1934 Act and the related published rules and
regulations thereunder;
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of a reading of the
latest available unaudited interim consolidated financial statements of
the Company included or incorporated by reference in the Registration
Statement and the Prospectus, a reading of the minutes of all meetings of
the shareholders, board of directors and committees of the board of
directors of the Company since the date of the latest audited consolidated
financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus, inquiries of certain
officials of the Company responsible for financial and accounting matters,
any limited review in accordance with standards established by the
American Institute of Certified Public Accountants with respect to the
latest unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement and the Prospectus
performed at the request of the Company 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) any material modifications should be made to the latest
unaudited consolidated financial statements included or incorporated
by reference in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) the latest unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply in form
in all material respects with the applicable accounting requirements
of the 1933 Act and the 1934 Act and the related published rules and
regulations thereunder;
(C) at a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock or
any increase in the long-term debt of the Company and consolidated
subsidiaries or any decreases in consolidated net current assets or
net assets, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, except in each case for
changes, decreases or increases that the Registration Statement and
the Prospectus disclose have occurred or may occur; or
(D) for the period from the date of the latest unaudited
consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus to a
specified date not more than five days prior to the date of such
letter, there was any decrease in consolidated net sales, earnings
from operations or in the total or per-share amounts of net
earnings, in each case as compared with the corresponding period in
the preceding year, except in each case for any decreases that the
Registration Statement and the Prospectus disclose have occurred or
may occur.
(iv) Although they are unable to and do not express any opinion on
any Pro Forma Condensed Balance Sheet or the Pro Forma Condensed Statement
of Operations (the "Pro Forma Statements") included or incorporated by
reference in the Registration Statement and the Prospectus or on the pro
forma adjustments applied to the historical amounts included in the Pro
Forma Statements, for purposes of such letter they have:
(a) read the Pro Forma Statements;
(b) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and
whether the Pro Forma Statements comply in form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X; and
(c) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statements; and
on the basis of such procedures, and such other inquiries and procedures
as may be specified in such letter, nothing came to their attention that
caused them to believe that the Pro Forma Statements included or
incorporated by reference in the Registration Statement and the Prospectus
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X and that the pro
forma adjustments have not been properly applied to the historical amounts
in the compilation of those statements; and
(v) They have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data and
financial information
included or incorporated by reference in the Registration Statement, which
have previously been specified by you and which shall be specified in such
letter, and have compared certain of such items with, and have found such
items to be in agreement with, the accounting and financial records of the
Company.
(d) RATINGS. The Notes shall have been rated BBB and Baa2 by
Standard & Poor's Ratings Services and Xxxxx'x Investors Service, Inc.
respectively, or such other ratings as the Company shall have notified the
Agents of pursuant to Section 4(a) hereof and written confirmation of such
ratings, dated each Settlement Date shall have been delivered to the Agents.
(e) OTHER DOCUMENTS. On the date hereof and on each Settlement Date
with respect to any applicable Terms Agreement, counsel to the Agents shall have
been furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be reasonably satisfactory in form and
substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the applicable Agent, any applicable Terms Agreement) may be
terminated by an Agent by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under Section
10 hereof, the indemnity and contribution agreement set forth in Sections 8 and
9 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery of Section 11 hereof, the governing law
provisions set forth in Section 14 hereof and the provisions set forth under
"Parties" of Section 15 hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE
AGENTS. Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent or its nominee for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, the applicable Agent shall promptly notify the
Company and deliver such Note to the Company, and, if such Agent has theretofore
paid the Company for such Note, the Company will promptly return such funds to
such Agent. If such failure occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY. The Company
covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by it of an offer for the purchase of Notes (whether through an Agent as
agent or to an Agent
as principal), and each delivery of Notes by the Company (whether through
an Agent as agent or to an Agent as principal), shall be deemed to be an
affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the purchaser or his or her agent, or to the Agents, of the
Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (it being understood that such
representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in
the interest rates of Notes or similar changes, and, unless the Agents
shall otherwise reasonably specify, other than by an amendment or
supplement that relates exclusively to an offering of debt securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any proxy
statement or Current Report on Form 8-K relating exclusively to the
issuance of debt securities other than the Notes or, unless the Agents
shall otherwise reasonably specify, any other Report on Form 8-K), (iii)
(if required pursuant to the terms of a Terms Agreement) the Company sells
Notes to one or more Agents pursuant to a Terms Agreement or (iv) the
Company shall approve a form of Note for sale whose principal, premium, if
any, or interest is determined by reference to any index, formula or other
method (collectively, "Indexed Notes"), the Company shall furnish or cause
to be furnished to the Agents forthwith a certificate dated the date of
filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may
be, in form satisfactory to the Agents, to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof which were
last furnished to the Agents are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as though made
at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time and provided that, if such certificate is
provided on the date of sale pursuant to a Terms Agreement, such
certificate shall, in lieu of the statement required in Section 5(b)(i)
hereof, state that since the date of the applicable Terms Agreement there
has not been any Material Adverse Change) or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred to in said
Section 5(b), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate; PROVIDED, HOWEVER, that, if the Agents shall
have suspended solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Company, and none of the Agents
shall then hold any Notes as principal purchased pursuant to a Terms
Agreement (or if any Agent holds Notes as principal pursuant to a Terms
Agreement, such Agent has held such Notes for more than 180 days), the
Company shall not be obligated so to furnish the Agents with a certificate
or certificates until such time that the Company shall determine that
solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with one or more Agents.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in
the interest rates of the Notes or similar changes or solely for the
inclusion of additional financial information, and, unless the Agents
shall otherwise reasonably specify, other than by an amendment or
supplement that relates exclusively to an offering of debt securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any proxy
statement or Current Report on Form 8-K relating exclusively to the
issuance of debt securities other than the Notes or to quarterly or annual
financial information that has been announced to the general public or,
unless the Agents shall otherwise reasonably request, any other Current
Report on Form 8-K or any Quarterly Report on Form 10-Q), (iii) (if
required pursuant to the terms of a Terms Agreement) the Company sells
Notes to one or more Agents pursuant to a Terms Agreement or (iv) the
Company shall approve a form of Indexed Note for sale, the Company shall
furnish or cause to be furnished forthwith to the Agents and to counsel to
the Agents a written opinion of counsel reasonably satisfactory to the
Agents, dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment, or the date of such
sale, as the case may be, in form and substance satisfactory to the
Agents, of the same tenor as the opinions referred to in Sections 5(a)(1)
and (2) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion or, in lieu of any such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a
letter to the effect that the Agents may rely on such last opinion to the
same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance);
PROVIDED, HOWEVER, that, in the event that an Indexed Note has been
approved for sale by the Company, counsel to the Company shall also
confirm the exclusion or exemption of such Indexed Note from the Commodity
Exchange Act and the rules and regulations promulgated thereunder; and
PROVIDED, FURTHER, that, if the Agents shall have suspended solicitation
of purchases of the Notes in their capacity as agents pursuant to a
request from the Company, and none of the Agents shall then hold any Notes
as principal purchased pursuant to a Terms Agreement (or, if any Agent
holds Notes as principal pursuant to a Terms Agreement, such Agent has
held such Notes for more than 180 days), the Company shall not be
obligated so to furnish the Agents with opinions until such time that the
Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with one
or more Agents.
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
to include additional financial information, (ii) there is filed with the
SEC any document incorporated by reference into the Prospectus that
contains additional financial information (other than any Current Report
on Form 8-K relating to quarterly or annual earnings) or (iii) (if
required pursuant to the terms of a Terms Agreement) the Company sells
Notes to one or more Agents pursuant to a Terms Agreement, the Company
shall cause KPMG LLP (as well as any other accountant referred to in
Section 5(c) for so long
as their consent to the inclusion of their report on the related financial
statements is required) forthwith to furnish the Agents with a letter,
dated the date of effectiveness of such amendment, supplement or document
with the SEC or the date of such sale, as the case may be, in form
satisfactory to the Agents, of the same tenor as the portions of its
letter referred to in Section 5(c)(i) and (ii) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor as
the portions of its letter referred to in Section 5(c)(iii) and (iv)
hereof with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting
records of the Company; PROVIDED, HOWEVER, that, if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, KPMG LLP (as well as
any other accountant referred to in Section 5(c) for so long as their
consent to the inclusion of their report on the related financial
statements is required) may limit the scope of its letter to the unaudited
financial statements included in such amendment or supplement, unless any
other information included therein of an accounting, financial or
statistical nature is of such a nature that, in the reasonable judgment of
the Agents, such letter should cover such other information; and PROVIDED,
FURTHER, that, if the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agents pursuant to a request
from the Company, and none of the Agents shall then hold any Notes as
principal purchased pursuant to a Terms Agreement (or, if any Agent holds
Notes as principal pursuant to a Terms Agreement, such Agent has held such
Notes for more than 180 days), the Company shall not be obligated so to
furnish the Agents with a letter or letters until such time that the
Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with one
or more Agents.
SECTION 8. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless the Agents and each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by the Agents,
subject to subsection (c) of this Section 8), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under subparagraph (i) or
(ii) above;
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus, preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto) or in the Form T-1 or any amendment or
supplement thereto filed by the Trustee with the Commission; PROVIDED, FURTHER
that the foregoing indemnification with respect to any preliminary prospectus or
preliminary prospectus supplement shall not apply to any loss, liability, claim,
damage or expense asserted against an Agent by a person who purchased the Notes
(whether from such Agent as agent or from such Agent as principal) and is
asserting such loss, liability, claim, damage or expense, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto to such Agent a reasonable amount of time
prior to their delivery) was not sent or given by or on behalf of such Agent to
such person, if such is required by law, at or prior to the written confirmation
of the sale of such Notes to such person and if the Prospectus (as so amended or
supplemented) would have cured the untrue statement or omission or alleged
untrue statement or omission giving rise to such loss, liability, claim, damage
or expense.
(b) INDEMNIFICATION OF COMPANY. Each Agent agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described, and to the same extent as, in the indemnity
contained in Section 8(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus,
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus, preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto).
(c) GENERAL. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. Upon receipt of notice of such action
from the indemnified party, the indemnifying party may assume the defense of any
such action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all expenses related thereto. In the event
that the indemnifying party assumes the defense of such action as provided in
the foregoing sentence,
each indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (a) the
indemnifying party has separately agreed in writing to pay such fees and
expenses or (b) the indemnifying party shall have failed to assume the defense
of such action or proceeding and employ counsel reasonably satisfactory to such
person in any such action or proceeding or (c) the named parties to any such
action or proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such indemnified party shall
have been advised by their own counsel that there are potential material
conflicts of interest between such indemnified party and the indemnifying party,
in which case if such person notifies the indemnifying party in writing that
such indemnified party elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action or proceeding on behalf of such indemnified party. In
no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. An
indemnified party under subsection (a) or (b) above shall not enter into a
settlement of any litigation in respect of which a claim is to be made against
the indemnifying party under such subsection unless such settlement is effected
with the consent of the indemnifying party.
(d) PAYMENTS. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by subparagraph (a)(ii) of this
Section 8 effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 9. CONTRIBUTION. If the indemnification provided for in
Section 8 hereof, although applicable in accordance with its terms, is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
applicable Agent(s) on the other hand from the offering of the Notes that were
the subject of the claim for indemnification or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and each such
Agent on the other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the applicable Agent(s) on the other hand in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the
total net proceeds from the sale of such Notes (before deducting expenses)
received by the Company and the total discount or commission received by each
such Agent, as the case may be, bears to the aggregate initial offering price of
such Notes.
The relative fault of the Company on the one hand and the applicable
Agent(s) on the other hand shall be determined by reference to, among other
things, whether any such 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 by the applicable Agent(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) 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 Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall
be required to contribute any amount in excess of the amount by which the total
price at which the relevant Notes sold by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. In addition, in connection with an offering
of Notes purchased by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate initial offering price of Notes
that each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as such Agent, and each director
of the Company, each officer of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
SECTION 10. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The printing, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of global Notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any calculation agent or
exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions
contemplated hereby;
(f) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(g) The preparation, printing, reproducing and delivery to the
Agents of copies of the Designated Indenture and all supplements and
amendments thereto;
(h) Any fees charged by rating agencies for the rating of the Notes;
(i) The fees and expenses, if any, incurred in connection with any
listing of the Notes on any securities exchange;
(j) The filing fees, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the written approval of the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes; and
(m) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Company and the indemnities, agreements and other statements
of an Agent set forth in or made pursuant to this Agreement will remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Company or an Agent or controlling person and shall survive
each delivery of and payment for the Notes.
SECTION 12. TERMINATION. (a) TERMINATION OF THIS AGREEMENT. This
Agreement (excluding any Terms Agreement) may be terminated for any reason, at
any time by either the Company or an Agent (as to itself) upon the giving of 21
days' written notice of such termination to the other party hereto.
(b) TERMINATION OF A TERMS AGREEMENT. The applicable Agent(s) may
terminate any Terms Agreement, immediately upon notice to the Company, at any
time prior to the Settlement Date relating thereto (i) if there has been, since
the date of such Terms Agreement, any Material Adverse Change which, in any such
case, in the judgment of such Agent(s), makes it impractical to market the
related Notes or (ii) if there has occurred any outbreak of new hostilities or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the judgment of such Agent(s), impracticable to market
the related Notes or enforce contracts for the sale of such Notes or (iii) if
trading in any securities of the Company has been suspended by the SEC or any
exchange on which such securities are listed, or if trading generally on the New
York Stock Exchange or in a national over-the-counter market has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by such exchange or by order of the
SEC, any exchange on which such securities are listed or any other governmental
authority or (iv) if a banking moratorium has been declared by either federal or
New York authorities or if a banking moratorium shall have been declared by the
relevant authorities in the country or countries of origin of any foreign
currency or currencies in which the related Notes are denominated or payable or
(v) if the rating assigned by Xxxxx'x Investors Service, Inc. or Standard &
Poor's Ratings Group to any debt securities (including the Notes) of the Company
as of the date of any applicable Terms Agreement shall have been lowered since
that date or if any such rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any such debt securities, or (vi) if there shall have come to the attention of
such Agent(s) any facts that would cause such Agent(s) to reasonably believe
that the Prospectus, at the time it was required to be delivered to a purchaser
of the related Notes, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading.
(c) GENERAL. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) each Agent
shall be entitled to any commission earned prior to such termination in
accordance with the third paragraph of Section 3(a) hereof, (ii) if at the time
of termination (A) an Agent shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (B) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not occurred,
the covenants set forth in Sections 4 and 7 hereof shall remain in effect until
such Notes are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 4(h) hereof, the provisions of Section 5 hereof,
the indemnity and contribution agreements set forth in Sections 8 and 9 hereof,
and the provisions of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. NOTICES. Unless otherwise provided herein, all notices
required under the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram, and any such
notice shall be effective when received at the address specified below.
If to the Company:
Xxxxxx & Xxxxx Corporation
0000 X&X Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Vice President, General Counsel and Secretary
If to the Agents:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281
Attention: MTN Product Management
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 10285
Attention: Medium-Term Note Desk
Xxxxxx Xxxxxxx & Co. Incorporated
1585 Broadway - 2nd Floor
New York, New York 10036
Attention: Manager-Continuously Offered Products
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx-Investment Banking
Information Center
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW. This Agreement and all the rights and
obligations of the parties shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 15. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
and their respective successors and the controlling persons and officers and
directors referred to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be successor by reason merely of such
purchase.
SECTION 16. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
SECTION 17. HEADINGS. All headings of the sections and subparts
thereof of this Agreement are for convenience of reference only and shall not be
deemed a part of this Agreement or the applicable Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us counterparts hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agents and the Company in accordance with its terms.
Very truly yours,
XXXXXX & XXXXX CORPORATION
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice Prsident-Chief Financial Officer
Confirmed and accepted as of the
date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx X. XxXxxx, Xx.
----------------------------------
Name: Xxxxxx X. XxXxxx, Xx.
Title: Vice President
XXXXXX BROTHERS INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
