Exhibit 1.1
PROPOSED DRAFT
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ALEXANDER & ALEXANDER SERVICES INC.
Debt Securities
Preferred Common Stock
UNDERWRITING AGREEMENT
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Introductory. Alexander & Alexander Services Inc., a Maryland
corporation ("Company"), proposes to issue and sell from time to time
certain of its unsecured debt securities, preferred stock and Common Stock,
$1.00, par value, ("Common Stock") registered under the registration
statement referred to in Section 2(a) ("Registered Securities"). The
Registered Securities constituting debt securities will be issued under an
indenture, dated as of , 19 ("Indenture"), between the Company
and PNC Bank, N.A., as Trustee, in one or more series, which series may
vary as to interest rates, maturities, redemption provisions, selling
prices and other terms. The Registered Securities constituting preferred
stock may be issued in one or more series, which series may vary as to
dividend rates, redemption provisions, selling prices and other terms.
Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Offered Securities". The firm or firms
which agree to purchase the Offered Securities are hereinafter referred to
as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement
referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives",
as used in this Agreement (other than in Sections 2(b), 5(c) and 6 and the
second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- ), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3
to reflect the terms of the Offered Securities (if they are debt
securities or preferred stock) and the terms of the offering of the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Securities
Act of 1933 ("Act"), including all material incorporated by reference
therein, is hereinafter referred to as the "Prospectus". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in
all respects to the requirements of the Act, the Trust Indenture Act
of 1939 ("Trust Indenture Act") and the rules and regulations of the
Commission
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("Rules and Regulations") and did not include any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations, and neither of such documents will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based
upon written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Maryland,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(d) Each significant subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each significant
subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification; all of the issued and
outstanding capital stock of each significant subsidiary of the
Company has been duly authorized and validly issued and is fully paid
and nonassessable; and the capital stock of each significant
Subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects. A "significant
subsidiary" means each subsidiary of the Company which has assets in
excess of 5% of the consolidated assets of the Company or contributes
more than 5% of the consolidated revenues of the Company.
(e ) If the Offered Securities are debt securities: The Indenture
has been duly authorized and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly authorized; and
when the Offered Securities are delivered and paid for pursuant to the
Terms Agreement on the Closing Date (as defined below) or pursuant to
Delayed Delivery Contracts (as hereinafter defined), the Indenture
will have been duly executed and delivered, such Offered Securities
will have been duly executed, authenticated, issued and delivered and
will conform to the description thereof contained in the Prospectus
and the Indenture and such Offered Securities will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
(f ) If the Offered Securities are preferred stock: The Offered
Securities have been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the Terms
Agreement on the Closing Date, such Offered Securities will have been
validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders
of the Company have no preemptive rights with respect to the Offered
Securities.
(g ) If the Offered Securities are Common Stock: The Offered
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding
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shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with the
Terms Agreement on the Closing Date, such Offered Securities will have
been, validly issued, fully paid and nonassessable and will conform to
the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities.
(h ) If the Offered Securities are convertible: When the Offered
Securities are delivered and paid for pursuant to the Terms Agreement
on the Closing Date, such Offered Securities will be convertible into
Common Stock of the Company in accordance with their terms (if the
Offered Securities are preferred stock) or the Indenture (if the
Offered Securities are debt securities); the shares of Common Stock
initially issuable upon conversion of such Offered Securities have
been duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly issued, fully
paid and nonassessable; the outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Common Stock.
(i ) If the Offered Securities are Common Stock or are convertible
into Common Stock: Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other like
payment.
(j) If the Offered Securities constitute Common Stock or are
convertible into Common Stock, the outstanding shares of Common Stock
are listed on The New York Stock Exchange (the "Stock Exchange") and
the Offered Securities (if they are Common Stock) or the Common Stock
into which the Offered Securities are convertible (if they are
convertible) has been approved for listing on the Stock Exchange,
subject to notice of issuance. If the Offered Securities are debt
securities or preferred stock, they have been approved for listing on
the stock exchange indicated in the Terms Agreement, subject to notice
of issuance.
(k ) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except
such as have been obtained and made under the Act and, if the Offered
Securities are debt securities, the Trust Indenture Act and such as
may be required under state securities laws.
(l ) The execution, delivery and performance of the Indenture (if
the Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered Securities and, if
the Offered Securities are debt securities or preferred stock,
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, or the charter or
Bylaws of the Company or any such subsidiary, and the Company has full
power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement).
(m ) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered
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Securities are debt securities or preferred stock, any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company.
(n ) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the
Company and its subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
(o ) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have
not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(p ) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that might have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(q ) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(r ) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, prospects or results of
operations of the Company and its subsidiaries taken as a whole, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture (if the Offered Securities
are debt securities), the Terms Agreement (including the provisions of
this Agreement) or any Delayed Delivery Contracts, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(s ) The financial statements included in the Registration Statement
and Prospectus present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles
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in the United States applied on a consistent basis; and any schedules
included in the Registration Statement present fairly the information
required to be stated therein.
(t ) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(u ) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
3. Purchase and Offering of Offered Securities. The obligation of
the Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement")
at the time the Company determines to sell the Offered Securities. The
Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm
or firms which will be Underwriters, the names of any Representatives, the
purchase price to be paid by the Underwriters and (if the Offered
Securities are debt securities or preferred stock) the terms of the Offered
Securities not already specified (in the Indenture, in the case of Offered
Securities that are debt securities), including, but not limited to,
interest rate (if debt securities), dividend rate (if preferred stock),
maturity (if debt securities), any redemption provisions and any sinking
fund requirements and whether any of the Offered Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the
Terms Agreement (the "Lead Underwriter") and the Company agree as the time
for payment and delivery, being herein and in the Terms Agreement referred
to as the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Offered Securities. For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the
Closing Date (if later than the otherwise applicable settlement date) shall
be the date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering, other than Contract
Securities for which payment of funds and delivery of securities shall be
as hereinafter provided. The obligations of the Underwriters to purchase
the Offered Securities will be several and not joint. It is understood
that the Underwriters propose to offer the Securities for sale as set forth
in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Offered Securities pursuant to
delayed delivery contracts substantially in the form of Annex I attached
hereto ("Delayed Delivery Contracts") with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and educational
and charitable institutions. On the Closing Date the Company will pay, as
compensation, to the Representatives for the accounts of the Underwriters,
the fee set forth in such Terms Agreement in respect of the principal
amount or number of shares] of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ("Contract Securities"). The Underwriters will
not have any responsibility in respect of the validity or the performance
of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from
the Offered Securities to be purchased by the several Underwriters and the
aggregate principal amount or number of shares of Offered Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount or
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number of shares of Offered Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Lead Underwriter determines that such reduction shall be otherwise than pro
rata and so advise the Company. The Company will advise the Lead
Underwriter not later than the business day prior to the Closing Date of
the principal amount or number of shares of Contract Securities.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the
provisions of this paragraph shall apply, the Company will deliver against
payment of the purchase price the Offered Securities in the form of one or
more permanent global Securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co., as nominee
for DTC. Interests in any permanent global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described
in the Prospectus. Payment for the Offered Securities shall be made by the
Underwriters (if the Terms Agreement specifies that the Offered Securities
will not trade in DTC's Same Day Funds Settlement System) by certified or
official bank check or checks in New York Clearing House (next day) funds
or (if the Terms Agreement specifies that the Offered Securities will trade
in DTC's Same Day Funds Settlement System) in Federal (same day) funds by
official check or checks or wire transfer to an account in New York
previously designated to the Lead Underwriter by the Company at a bank
acceptable to the Lead Underwriter, in each case drawn to the order of
at the place of payment specified in the Terms Agreement on the
Closing Date, against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters,
one signed copy of the registration statement relating to the Registered
Securities, including all exhibits, in the form it became effective and of
all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5)) not
later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event
and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
Neither the Lead Underwriter's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
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(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and (if the Offered Securities are debt securities
or preferred stock) the determination of their eligibility for
investment] under the laws of such jurisdictions as the Lead
Underwriter designates and will continue such qualifications in effect
so long as required for the distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report
and any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as the Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under the Terms Agreement (including the provisions
of this Agreement) and will reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees or other reasonable
expenses (including reasonable fees and disbursements of counsel)
incurred by them in connection with qualification of the Registered
Securities for sale (if the Offered Securities are debt securities or
preferred stock) any determination of their eligibility for investment
under the laws of such jurisdictions as the Lead Underwriter may
designate and the printing of memoranda relating thereto (if they are
debt securities or preferred stock), for any applicable filing fee of
the National Association of Securities Dealers, Inc. relating to the
Registered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or
supplements to the Prospectus to the Underwriters.
(i) If the Offered Securities are debt securities or preferred
stock, the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue (if the Offered Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if the Offered
Securities are preferred
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stock), or publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior written consent of
the Lead Underwriter for a period beginning at the time of execution
of the Terms Agreement and ending the number of days after the Closing
Date specified under "Blackout" in the Terms Agreement.
(j ) If the Offered Securities are Common Stock or are convertible
into Common Stock, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
additional shares of its Common Stock or securities convertible into
or exchangeable or exercisable for any shares of its Common Stock, or
publicly disclose the intention to make any such offer, sale, pledge,
disposal or filing, without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Closing Date
specified under "Blackout" in the Terms Agreement, except issuances of
Common Stock pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in
each case outstanding on the date of the Terms Agreement, grants
pursuant to the Company's employee incentive compensation programs
pursuant to the terms of a plan in effect on the date of the Terms
Agreement, issuances of Common Stock pursuant to the exercise of
options under such programs or issuances of Common Stock pursuant to
the Company's compensation and employee benefits programs.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities
will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of
Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Deloitte & Touche LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on any
unaudited financial statements included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if any, and any
summary of earnings included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should
be made
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to such unaudited financial statements and summary of
earnings for them to be in conformity with generally
accepted accounting principles;
(B) if any unaudited "capsule" information is contained
in the Prospectus, the unaudited consolidated net sales, net
operating income, net income and net income per share
amounts or other amounts constituting such "capsule"
information and described in such letter do not agree with
the corresponding amounts set forth in the unaudited
consolidated financial statements or were not determined on
a basis substantially consistent with that of the
corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than five days prior to the date of the Terms
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated [net current assets
or] net assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year in consolidated
net sales, net operating income in the total or (if the
Offered Securities are Common Stock or are convertible into
Common Stock) per share amounts of consolidated income
before extraordinary items or net income or (if the Offered
Securities are debt securities) in the ratio of earnings to
fixed charges or (if the Offered Securities are preferred
stock) in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Prospectus (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of
the Company and its subsidiaries subject to the internal controls
of the Company's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial infor-
mation to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effec
9
tiveness of the Registration Statement or of any part thereof shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or any Underwriter,
shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters including any Representatives, is material and adverse
and makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt securities
or preferred stock of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; or (iv) any
banking moratorium declared by the U.S. Federal Reserve Bank of
New York
(d) The Representatives shall have received an opinion of
counsel for the Company dated the Closing Date to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Maryland,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification;
(ii) If the Offered Securities are debt securities: The
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture
Act; the Offered Securities have been duly authorized; the
Offered Securities other than any Contract Securities have been
duly executed, authenticated, issued and delivered; the Indenture
and the Offered Securities other than any Contract Securities
constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to Delayed Delivery Contracts, will
constitute, valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
and the Offered Securities other than any Contract Securities
conform, and any Contract Securities, when so issued and
delivered and sold will conform, to the description thereof
contained in the Prospectus;
(iii) If the Offered Securities are preferred stock: The
Offered Securities have been duly authorized; the Offered Securities
other than any Contract Securities have been validly issued and
are fully paid and nonassessable; any Contract Securities, when
issued, delivered and sold pursuant to Delayed Delivery
Contracts, will be validly issued, fully paid and non-assessable;
and the Offered Securities other than any Contract Securities
conform, and any Contract Securities, when so issued, delivered
and
10
sold, will conform, to the description thereof contained in the
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(iv) If the Offered Securities are Common Stock: The Offered
Securities and all other outstanding shares of the Common Stock
of the Company have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Offered
Securities;
(v) If the Offered Securities are convertible: The Offered
Securities other than any Contract Securities are, and any
Contract Securities, when (if the Offered Securities are debt
securities) executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to Delayed
Delivery Contracts or (if the Offered Securities are preferred
stock) when issued, delivered and sold pursuant to Delayed
Delivery Contracts, will be convertible into Common Stock of the
Company in accordance with (if they are debt securities) the
Indenture or (if they are preferred stock) their terms; the
shares of Common Stock initially issuable upon conversion of the
Offered Securities have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable;
the outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Common Stock;
(vi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Offered Securities by
the Company, except such as have been obtained and made under the
Act and, if the Offered Securities are debt securities, the Trust
Indenture Act and such as may be required under state securities
laws;
(vii) The execution, delivery and performance of the Indenture
(if the Offered Securities are debt securities), the Terms
Agreement (including the provisions of this Agreement) and, if
the Offered Securities are debt securities or preferred stock,
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and, if the Offered Securities are debt
securities or preferred stock, compliance with the terms and
provisions thereof will not result in a material breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
Bylaws of the Company or any such subsidiary, and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement);
(viii) The Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified
11
in such opinion on the date specified therein, and, to the best
of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and the
registration statement relating to the Registered Securities, as
of its effective date, the Registration Statement and the
Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as to
form in all material respects with the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations; such
counsel have no reason to believe that such registration
statement, as of its effective date, the Registration Statement,
as of the date of the Terms Agreement or as of the Closing Date,
or any amendment thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the Terms Agreement or as
of such Closing Date, or any amendment or supplement thereto, as
of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of
any legal or governmental proceedings required to be described in
the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus; and
(ix) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(e) The Representatives shall have received from , counsel
for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the
Offered Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate, dated
the Closing Date, of the President or any Vice-President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of
12
operations of the Company and its subsidiaries taken as a whole except
as set forth in or contemplated by the Prospectus or as described in
such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than five days
prior to the Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as the Representatives
reasonably request. The Lead Underwriter may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement and the Terms
Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter or through the
Representatives, if any, specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter
consists of the information described as such in the Terms Agreement.
Notwithstanding the foregoing, the Company shall not be liable to each
Underwriter, or through the Representatives or any other person, if any,
who controls such Underwriter within the meaning of the Act, in any such
case to the extent that any such claim arises out of such person's failure
to send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Offered Securities to such person if
such statement or omission was corrected in such final prospectus.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter or through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
13
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person,
14
if any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities under the Terms
Agreement and the aggregate principal amount (if debt securities) or number
of shares (if preferred stock or Common Stock) of Offered Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount (if debt securities) or
number of shares (if preferred stock or Common Stock) of Offered
Securities, the Lead Underwriter may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by
the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under the Terms
Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount (if debt securities) or number of shares (if preferred
stock or Common Stock) of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount (if
debt securities) or number of shares (if preferred stock or Common Stock)
of Offered Securities and arrangements satisfactory to the Lead Underwriter
and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, the Terms
Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Company, except as provided in Section 8. As
used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. If the
Offered Securities are debt securities or preferred stock, the respective
commitments of the several Underwriters for the purposes of this Section
shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts (if debt
securities) or numbers of shares (if preferred stock) of the Offered
Securities set forth opposite their names in the Terms Agreement as a
result of Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters
set forth in or made pursuant to the Terms Agreement (including the
provisions of this Agreement) will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or
if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 4 and the
respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely
because of the termination of the Terms Agreement pursuant to Section 7 or
the occurrence of any event specified in clause (iii), (iv) or (v) of
Section 5(c), the Company will reimburse the Underwriters for all out-of-
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Alexander &
Alexander Services Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, XX, XX 00000,
Attention: General Counsel.
15
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms Agreement and their
respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right
or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the
Terms Agreement, and any action under such Terms Agreement (including the
provisions of this Agreement) taken by the Representatives jointly or by
the Lead Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to the Terms
Agreement (including the provisions of this Agreement) or the transactions
contemplated thereby.
16
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive
not later than 9:00 A.M., New York time,
on ........ ........, 19...*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
[INSERT NAME OF ISSUER]
c/o CS FIRST BOSTON CORPORATION
Park Avenue Plaza
New York, N.Y. 10055
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from Alexander & Alexander
Services Inc., a Maryland corporation ("Company"), and the Company agrees
to sell to the undersigned, as of the date hereof, for delivery on
, 19 ("Delivery Date"),]
[$]..............[shares]
principal amount of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated , 19
and a Prospectus Supplement dated , 19 relating
thereto, receipt of copies of which is hereby acknowledged, at % of the
principal amount thereof plus accrued interest, if any, $ per share
plus accrued dividends, if any, and on the further terms and conditions set
forth in this Delayed Delivery Contract ("Contract").
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in
the principal amounts set forth below:
Principal Amount
----------------
Number
Delivery Date of Shares
------------- ---------
................................. .............
................................. .............
--------------------
* Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
17
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on the each Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next
day) funds at the office of at .M.
on the such Delivery Date upon delivery to the undersigned of the
Securities to be purchased by the undersigned for delivery on such Delivery
Date in definitive [If debt issue, insert fully registered] form and in
such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to the such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as
of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned
to take delivery of and make payment for, Securities on the each Delivery
Date shall be subject only to the conditions that (1) investment in the
Securities shall not at the such Delivery Date be prohibited under the laws
of any jurisdiction in the United States to which the undersigned is
subject and (2) the Company shall have sold to the Underwriters the
total principal amount number of shares of the Securities less
the principal amount -number of shares thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy copies of the opinion[s] of
counsel for the Company delivered to the Underwriters in connection
therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
18
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the undersigned at
its address set forth below. This will become a binding contract between
the Company and the undersigned when such counterpart is so mailed or
delivered.
Yours very truly,
....................................
(Name of Purchaser)
By
...............................
(Title of Signatory)
...............................
...............................
(Address of Purchaser)
Accepted, as of the above date.
ALEXANDER & ALEXANDER SERVICES INC.
By ....................................
Name:
Title:
19
