EXHIBIT 1
XXXXXXXX'X CORPORATION
UNDERWRITING AGREEMENT
----------------------
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Dear Sirs:
1. INTRODUCTORY. XxXxxxxx'x Corporation (the "Company"), a Delaware
corporation, proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives", which term may refer to a single Representative if so
indicated on Schedule I hereto), the principal amount of its securities
identified in Schedule I hereto (the "Securities"), to be issued under an
Indenture, dated as of October 18, 1996 as supplemented by Supplemental
Indenture No. 1, to be dated as of November 5, 1996 (collectively, the
"Indenture"), between the Company and First Union National Bank, as trustee
(the "Trustee"). (If the firm or firms listed in Schedule II hereto include
only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives," as used herein, shall each be deemed to
refer to such firm or firms.)
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 under the Securities Act of
1933, as amended (the "Securities Act") (File No. 333-14141 and File No. 33-
50025), which have become effective, for the registration under the Securities
Act of the Securities. Such registration statements meet the requirements set
forth in Rule 415(a)(1)(i) under the Securities Act and comply in all other
material respects with said Rule. The Company proposes to file with the
Commission pursuant to Rule 424(b)(2) or (b)(5) under the Securities Act a
supplement to the form of prospectus included in registration statement File
No. 333-14141 relating to the Securities and the plan of distribution thereof
or (b), if the Company elects to rely on Rule 434 under the Securities Act, a
Term Sheet (as such term is hereinafter defined) relating to the Securities
that shall contain such information as is required or permitted by Rules 434
and 424(b) under the Securities Act. The registration statements File No. 333-
14141 and File No. 33-50025, including the exhibits thereto, are hereinafter
collectively called the "Registration Statement;" the prospectus in the form
in which it appears in registration statement File No. 333-14141, which,
pursuant to Rule 429 under the Securities Act, will also be used in connection
with the Securities registered pursuant to registration statement File No. 33-
50025, is hereinafter called the "Basic Prospectus;" and such supplemented
form of prospectus, in the form in which it shall be filed with the Commission
pursuant to Rule 424(b)(2) or (b)(5) (including the Basic Prospectus as so
supplemented) or (ii), if the Company elects to rely on Rule 434 under the
Securities Act, in the form of the Term Sheet as first filed with the
Commission pursuant to Rule 424(b)(7) (together with the Basic Prospectus), is
hereinafter called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424(b) is
hereinafter called the "Preliminary Final Prospectus." Any abbreviated term
sheet that satisfies the requirements of Rule 434 under the Securities Act is
hereinafter called the "Term Sheet." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or
before the date of this Agreement, or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed pursuant
to Rule 424(b) under the Securities Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference in
the Registration Statement), when any supplement to the Final Prospectus is
filed with the Commission and at the Closing Date (as hereinafter defined),
(i) the Registration Statement, as amended as of any such time, the Final
Prospectus, as amended or supplemented as of any such time, and the Indenture
will comply in all material respects with the applicable requirements of the
Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the Exchange Act and the respective rules and regulations
thereunder and (ii) neither the Registration Statement, as amended as of any
such time, nor the Final Prospectus, as amended or supplemented as of any such
time, will contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of the Trustee, (ii) information, if any, contained in
the Registration Statement or Final Prospectus relating to the Depository
Trust Company ("DTC") and its book-entry system, or (iii) the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the Final
Prospectus.
(c) The financial statements of the Company and its consolidated
subsidiaries included in the Registration Statement fairly present the
financial condition of the Company and its consolidated subsidiaries as of the
dates indicated and the results of operations and cash flow for the periods
therein specified; and said financial statements have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise stated
therein. As used herein, "consolidated subsidiaries" means each subsidiary of
the Company which is included in the consolidated financial statements of the
Company contained in its annual report to shareholders for 1995 in accordance
with the consolidation policies set forth therein or which would have been so
included if it had been a subsidiary of the Company as of the date of such
consolidated financial statements, and each other subsidiary of the Company
which is included in consolidated financial statements of the Company prepared
from time to time thereafter.
(d) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Final Prospectus and prior to the Closing
Date hereinafter mentioned, except as set forth or contemplated in the Final
Prospectus, (1) neither the Company nor any of its consolidated subsidiaries
has entered into any transaction not in the ordinary course of business which
is material to the Company and its consolidated subsidiaries, considered as a
whole, (2) there has been no material adverse change in the properties,
business, financial condition or results of operations of the Company and its
consolidated subsidiaries, considered as a whole, and (3) no legal or
governmental proceeding, which has or will have materially affected the
Company or any of its consolidated subsidiaries, considered as a whole, or the
transactions contemplated by this Agreement, has been or will have been
instituted or threatened.
(e) The Company and each of its Significant Subsidiaries (herein defined to
mean the list of the Company's domestic and foreign subsidiaries appearing in
Exhibit 21 to the Company's Annual Report on Form 10-K for the year ended
December 31, 1995) have been duly incorporated and are validly
2
existing as corporations in good standing under the laws of their respective
states or jurisdictions of incorporation, with corporate power and authority
to own their properties and to conduct their business as described in the
Basic Prospectus and Final Prospectus. The Company and each of its Significant
Subsidiaries are duly qualified to do business as foreign corporations and are
in good standing in all states or jurisdictions in which the ownership or
lease of real property or the conduct of business requires such
qualifications, except where failure to be so qualified cannot be reasonably
expected to have a material adverse effect on the financial condition of the
Company and its consolidated subsidiaries, considered as a whole. The Company
owns all of the issued and outstanding shares of capital stock of each of the
Significant Subsidiaries, directly or indirectly through one or more
Significant Subsidiaries (except McDonald's Australia Limited and McDonald's
Property Company Limited, of which the Company directly or indirectly owns a
majority of the capital stock), and all of such shares of the Significant
Subsidiaries are owned free and clear of any liens, charges and encumbrances.
(f) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not (i) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default under,
the Restated Certificate of Incorporation or By-Laws of the Company as
presently in effect or (ii) conflict with or result in a breach of any of the
terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company
is a party, or any order, rule or regulation applicable to the Company of any
court or of any federal or state regulatory body or administrative agency or
other governmental body having jurisdiction over the Company or any of its
properties, except such conflicts, breaches or defaults referred to in this
subclause (ii) which would not materially and adversely affect the Company and
its consolidated subsidiaries considered as a whole.
(g) The Securities have been duly and validly authorized and, when issued,
authenticated and delivered against payment therefor in accordance with the
terms of the Indenture and this Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits of the Indenture,
except as enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the enforceability of
creditors' rights and general principles of equity, and will conform to the
description thereof contained in the Final Prospectus. The Indenture has been
duly authorized by the Company and will be a valid and legal instrument
enforceable in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, moratorium and other laws
affecting the enforceability of creditors' rights and general principles of
equity. The Indenture is duly qualified under the Trust Indenture Act.
3. SALE, PURCHASE AND DELIVERY OF SECURITIES. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, the Company hereby agrees to sell to the
Underwriters, severally and not jointly, and each Underwriter, severally and not
jointly (unless otherwise indicated on Schedule I hereto), agrees to purchase
from the Company, at the purchase price set forth in Schedule I hereto, the
principal amount of the Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides for the sale of
Securities pursuant to delayed delivery arrangements, the respective principal
amounts of Securities to be purchased by the Underwriters shall be as set forth
in Schedule II hereto, less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters are
herein sometimes called the "Underwriters' Securities" and Securities to be
purchased pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery
3
Contracts are made. 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. The
Company will make Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must be for not less than the minimum principal amount set
forth in Schedule I hereto and the aggregate principal amount of Contract
Securities may not exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any responsibility in respect
of the validity or performance of Delayed Delivery Contracts. The principal
amount of Securities to be purchased by each Underwriter as set forth in
Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in Schedule II hereto, less the
aggregate principal amount of Contract Securities.
Delivery of and payment for the Underwriters' Securities shall be made at the
office, on the date and at the time specified in Schedule I hereto, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company in Federal (same day) funds,
or, if so indicated on Schedule I hereto, in New York Clearinghouse (next day)
funds. Certificates for the Underwriters' Securities shall be registered in such
names and in such denominations as the Representatives may request not less than
three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 PM on the business day prior to the Closing Date.
If so provided in Schedule I hereto, Underwriters' Securities will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of the Company with DTC or DTC's designated
custodian. In such case, (a) delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters by causing DTC to credit the Underwriters' Securities to the
account of the Representatives at DTC, and (b) the Company will cause the
certificates representing the Underwriters' Securities to be made available to
the Representatives for inspection not later than 1:00 p.m., New York City time,
on the business day prior to the Closing Date at the office of DTC or its
designated custodian.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company
will not file any amendment to the Registration Statement or supplement
(including the Final Prospectus) to the Basic Prospectus unless the Company
has furnished you a copy for your review prior to filing, and the Company will
not file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Company will cause the Final
Prospectus to be filed with the Commission pursuant to Rule 424 and/or Rule
434 under the Securities Act. The Company will promptly advise the
Representatives (i) when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 and/or Rule 434 under the Securities Act, (ii)
when any amendment to the Registration Statement relating to the Securities
shall have become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to the
Final Prospectus or for any additional information, (iv) of the issuance by
the Commission of any
4
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly upon the
request of the Representatives, any amendments or supplements to the
Registration Statement or Final Prospectus which, in the opinion of counsel
for the Underwriters, may be necessary to enable the several Underwriters to
continue the sale of the Securities, and the Company will use its best efforts
to cause any such amendments to become effective and any such supplements to
be filed with the Commission and approved for use by the Underwriters as
promptly as possible. If at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event
relating to or affecting the Company occurs as a result of which the Final
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
statement therein not misleading, or if it is necessary at any time to amend
or supplement the Final Prospectus to comply with the Securities Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which will correct
such statement or omission or which will effect such compliance. For the
purposes of this paragraph (b), the Company will furnish such information with
respect to itself as the Representatives may from time to time reasonably
request.
(c) As soon as practicable, but not later than 90 days after the end of
the 12-month period beginning at the end of the current fiscal quarter of
the Company, the Company will make generally available to its security
holders and you an earnings statement covering a period of at least twelve
months beginning not earlier than said effective date which shall satisfy
the provisions of Section 11(a) of the Securities Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement (including
exhibits thereto and documents incorporated by reference therein) and each
amendment thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Securities Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and supplements
thereto as the Representatives may reasonably request. The Company will pay
the expenses of printing all documents relating to the offering.
(e) The Company will furnish such information and execute such instruments
as may be required to qualify the Securities for sale under the securities or
blue sky laws of such jurisdictions within the United States as you designate,
will continue such qualifications in effect so long as required for
distribution and will arrange for the determination of the legality of the
Securities for purchase by institutional investors. The Company shall not be
required to register or qualify as a foreign corporation nor, except as to
matters and transactions relating to the offer and sale of the Securities,
consent to service of process in any jurisdiction.
(f) So long as the Securities shall be outstanding, the Company will deliver
to you (i) as soon as practicable after the end of each fiscal year,
consolidated balance sheets, statements of income, retained earnings and cash
flows of the Company and its consolidated subsidiaries, as at the end of and
for such year and the last preceding year, all in reasonable detail and
audited by independent public accountants, (ii) as soon as practicable after
the end of each of the first three quarterly periods in each fiscal year,
unaudited consolidated balance sheets, statements of income, retained earnings
and cash flows of the Company and its consolidated subsidiaries, as at the end
of and for such period and for the comparable period of the preceding year,
all in reasonable detail, (iii) as soon as available, all such proxy
statements,
5
financial statements and reports as the Company shall send or make available
to its stockholders generally, and (iv) copies of all such annual, periodic
and current reports as the Company or any subsidiary shall file with the
Commission or any securities exchange.
(g) The Company will apply for the listing of the Securities on the New York
Stock Exchange, Inc. if requested to do so by you.
(h) The Company will pay all costs and expenses in connection with the
transactions herein contemplated, including, but not limited to, the fees and
disbursements of its counsel; the fees, costs and expenses of preparing,
printing and delivering the Indenture and the Securities; the fees, costs and
expenses of the Trustee; accounting fees and disbursements; the costs and
expenses in connection with the qualification or exemption of the Securities
under state securities or blue sky laws, including filing fees and reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with any Blue Sky Memorandum; the costs and expenses in
connection with the preparation, printing and filing of the Registration
Statement (including exhibits thereto) and the Basic, Preliminary Final, and
Final Prospectus, the preparation and printing of this Agreement and the
furnishing to the Underwriters of such copies of each prospectus as the
Underwriters may reasonably require; and the fees of rating agencies. It is
understood, however, that, except as provided in this Section and in Sections
7 and 8 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel and any advertising expenses connected
with any offers they may make.
(i) Until the business day following the Closing Date, the Company will not,
without the consent of the Representatives, offer or sell, or announce the
offering of, any debt securities (other than up to $150,000,000 principal
amount of the Company's medium term notes to be issued pursuant to the
Company's Registration Statements on Form S-3 (File Nos. 33-42642 and 33-
60939)) covered by the Registration Statement or any other registration
statement filed under the Securities Act.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
several Underwriters to purchase and pay for the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the written 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:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or shall be pending,
or, to the knowledge of the Company, shall be contemplated by the Commission.
(b) No event, nor any material adverse change in the condition of the
Company, financial or otherwise, shall have occurred, nor shall any event
exist which makes untrue or incorrect any material statement or information
contained in the Registration Statement or the Final Prospectus or which is
not reflected in the Registration Statement or the Final Prospectus, but
should be reflected therein in order to make the statements or information
contained therein not misleading.
(c) You shall not have advised the Company that the Registration Statement
or any prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact which, in the opinion of counsel for the Underwriters, is
material, or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(d) You shall have received at the Closing Date (or prior thereto as
indicated) the following:
(i) An opinion from Xxxxxx Xxxxxxx, Vice President, Associate General
Counsel and Secretary, or a Vice President and Assistant General Counsel of
the Company, dated the Closing Date, to the effect that:
6
(A) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus.
(B) The Indenture has been duly authorized, executed and delivered by
the Company and the Trustee, is duly qualified under the Trust Indenture
Act, and is a valid and legally binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by applicable bankruptcy, insolvency, moratorium and other
laws affecting the enforceability of creditors' rights and general
principles of equity.
(C) The Securities have been duly and validly authorized by all
necessary corporate action and, when duly executed on behalf of the
Company, duly authenticated by the Trustee or the Trustee's authenticating
agent, and duly delivered to the several Underwriters against payment
therefor in accordance with the provisions of this Agreement, in the case
of the Underwriters' Securities, or to the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of Contract Securities, will
constitute legal, valid and binding obligations of the Company enforceable
in accordance with their terms and entitled to all the benefits of the
Indenture, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of equity.
(D) The Indenture and the Securities conform as to legal matters with
the statements concerning them made in the Final Prospectus, and such
statements accurately set forth the provisions thereof required to be set
forth in the Final Prospectus.
(E) This Agreement and any Delayed Delivery Contracts have been validly
authorized, executed and delivered on behalf of the Company.
(F) The Registration Statement and any amendments thereto have become
effective under the Securities Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under the
Securities Act, and the Registration Statement, the Final Prospectus, and
each amendment thereof or supplement thereto (except for the financial
statements and other financial data included therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the Exchange Act
and the respective rules thereunder; such counsel has no reason to believe
that either the Registration Statement or the Final Prospectus, or any
such amendment or supplement, contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the descriptions
in the Registration Statement and Final 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
does not know of any legal or governmental proceedings required to be
described in the Final Prospectus which are not described as required, nor
of any contracts or documents of a character required to be described in
the Registration Statement or Final Prospectus or to be filed as exhibits
to the Registration Statement which are not described and filed as
required.
(G) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof or of any Delayed Delivery Contracts will
not result in a breach of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which, to the knowledge of such counsel,
the Company is a party, or the Restated Certificate of Incorporation or
By-Laws of the Company as presently in effect or, to the knowledge of such
counsel, any order, rule or regulation applicable to the Company of any
court or of any federal or state regulatory body or administrative agency
or other governmental body having jurisdiction over the Company or its
properties.
7
(H) No authorization, approval, consent or other action of any
governmental authority or agency is required in connection with the sale
of the Securities as contemplated by this Agreement or in any Delayed
Delivery Contracts except such as may be required under the Securities Act
or under state securities or blue sky laws.
(ii) Such opinion or opinions of counsel for the Underwriters, dated the
Closing Date, with respect to the sufficiency of all corporate proceedings
and other legal matters relating to this Agreement, any Delayed Delivery
Contracts, the validity of the Securities, the Registration Statement, the
Final Prospectus and other related matters as you may reasonably request.
The Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to render their
opinions. In connection with such opinions, such counsel may rely on
representations or certificates of officers of the Company.
(iii) A certificate of the President or a Vice President, and the Chief
Financial Officer of the Company or its Treasurer, dated the Closing Date,
to the effect that:
(A) The representations and warranties of the Company in Section 2 of
this Agreement are true and correct as of the Closing Date, and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date.
(B) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the respective signers
of the certificate, are contemplated under the Securities Act.
(C) The signers of the certificate have carefully examined the
Registration Statement and the Final Prospectus; neither the Registration
Statement, the Final Prospectus nor any amendment or supplement thereto
includes, as of the Closing Date, any untrue statement of a material fact
or omits, as of the Closing Date, to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; since the latest respective dates as of which information is
given in the Registration Statement, there has been no material adverse
change in the financial position, business or results of operations of the
Company and its consolidated subsidiaries, considered as a whole, except
as set forth in or contemplated by the Final Prospectus; and since the
effective date of the Registration Statement, as amended, no event has
occurred which is required to be set forth in the Final Prospectus which
has not been so set forth.
(iv) A letter from Ernst & Young LLP, dated the Closing Date, addressed to
you substantially in the form heretofore approved by you.
(v) An opinion from Xxxx X. Xxxxxxxxxxxx, Assistant Vice President and
Federal Tax Counsel to the Company, as to certain United States federal
income tax considerations in the form reasonably agreed upon.
(e) Prior to the Closing Date, the Company shall have furnished to you such
further certificates and documents as you may reasonably request.
(f) The Company shall have accepted Delayed Delivery Contracts in any case
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
If any condition of the Underwriters' obligations hereunder required to be
satisfied prior to the Closing Date is not so satisfied, this Agreement may be
terminated by you by notice in writing or by facsimile transmission to the
Company.
In rendering the opinions described in Sections 5(d)(i) and (ii) above, Xx.
Xxxxxx Xxxxxxx, other counsel for the Company, and counsel for the Underwriters
may, as to matters involving the laws of any state other than Illinois, rely
upon the opinion or opinions of local counsel satisfactory to you, but in such
case a signed copy of each such opinion shall be furnished to you.
8
All such opinions (including opinions, if any, of local counsel),
certificates, letters and documents will be in compliance with the provisions
hereof only if they are in all material respects satisfactory to you and to
counsel for the Underwriters, as to which both you and such counsel shall act
reasonably. The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you request.
You, on behalf of the Underwriters, may waive in writing the compliance by the
Company of any one or more of the foregoing conditions or extend the time for
their performance.
6. REPRESENTATION OF THE UNDERWRITERS. Each of the Underwriters severally
represents and warrants to the Company that the information furnished to the
Company in writing by such Underwriter or by you expressly for use in the
preparation of the Registration Statement or the Final Prospectus does not, and
any amendments thereof or supplements thereto thus furnished 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.
7. TERMINATION OF AGREEMENT. This Agreement may be terminated by you on behalf
of the Underwriters by notice in writing delivered to the Company prior to the
Closing Date if prior to such time (i) trading in the Company's common stock
shall have been suspended by the Commission on the New York Stock Exchange for a
period of twenty-four hours or more or trading in securities generally on the
New York Stock Exchange shall have been suspended or materially limited, in
either case to such a degree as would in your judgment materially adversely
affect the market for the Securities; (ii) a general moratorium on commercial
banking activities in the State of New York or the United States shall have been
declared by Federal authorities; or (iii) there has occurred any material
outbreak, or material escalation, of hostilities involving the United States or
other national or international calamity or crisis, of such magnitude and
severity in its effect on the financial markets of the United States, in your
reasonable judgment, as to prevent or materially impair the marketing, or
enforcement of contracts for sale, of the Securities.
If this Agreement shall be terminated by you because of any failure on the
part of the Company to comply with any of the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable
to perform its obligations under this Agreement, the Company shall pay, in
addition to the costs and expenses referred to in Section 4(h), all reasonable
out-of-pocket expenses incurred by the Underwriters in contemplation of the
performance by them of their obligations hereunder, including but not limited to
the reasonable fees and disbursements of counsel for the Underwriters, the
Underwriters' reasonable printing and traveling expenses, and postage and
telephone charges relating directly to the offering contemplated by the Final
Prospectus, and also including advertising expenses incurred after the effective
date of the Registration Statement, it being understood that such out-of-pocket
expenses shall not include any compensation, salaries or wages of the officers,
partners or employees of any of the Underwriters.
The Company shall not in any event be liable to the several Underwriters for
damages on account of loss of anticipated profits arising out of the
transactions contemplated by this Agreement.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act or the Exchange Act against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject, under the Securities Act, the
Exchange 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 or any amendment thereof, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however,
9
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 or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in the preparation thereof; and provided, further, that the
foregoing indemnification with respect to the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities, if
such Underwriter failed to send or give copies of the Final Prospectus, as
amended or supplemented, excluding documents incorporated therein by reference,
to such person at or prior to the written confirmation of the sale of such
Securities to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Preliminary Final Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company either within the meaning
of the Securities Act or the Exchange Act, each of its directors and each of its
officers who has signed the Registration Statement, against any losses, claims,
damages or liabilities to which the Company, any such controlling person or any
such director or officer may become subject, under the Securities Act, the
Exchange Act, or otherwise, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through you specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page of the Final Prospectus and under the heading "Underwriting" or "Plan of
Distribution" and, if Schedule I hereto provides for sale of Securities pursuant
to delayed delivery arrangements, in the last sentence under the heading
"Delayed Delivery Arrangements" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the Final Prospectus, and you confirm that such statements are
correct. This indemnity agreement will be in addition to any liability which
each such Underwriter may otherwise have.
(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 this
Section, notify the indemnifying party in writing 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
this Section. 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 in and, to the extent that it
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those available
to the indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt by such indemnified party of notice from the indemnifying
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the
10
expenses of more than one separate counsel, approved by the Representatives of
the Underwriters in the case of subparagraph (a), representing the indemnified
parties under subparagraph (a) or (b), as the case may be, who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; provided, further, that, with
respect to legal and other expenses incurred by an indemnified party for which
an indemnifying party shall be liable hereunder, all such legal fees and
expenses shall be reimbursed by the indemnifying party as they are incurred.
(d) In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraph (a) of this Section 8 is
due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on grounds of policy or otherwise, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of the
Securities set forth in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (i) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
the Securities Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Securities Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to clause (i) of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If the Underwriters' obligations to purchase
Securities pursuant to Section 3 hereof are several and not joint and if any one
or more Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement and unless otherwise provided in Schedule
I hereto, the remaining Underwriters shall be obligated severally to take up and
pay for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
11
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
indemnities, agreements, representations and warranties of the Company and the
several Underwriters, set forth in or made pursuant to this Agreement, will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any of its officers or directors or
any controlling person, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or sent by facsimile transmission and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or sent by facsimile transmission and confirmed to the Company at Xxx
XxXxxxxx'x Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000, Attention of the Treasurer, with a
copy to the Controller.
12. SUCCESSORS; GOVERNING LAW. This Agreement will inure to the benefit of and
be binding upon the parties hereto and the officers and directors and
controlling persons referred to in Section 8 hereof and their respective
successors, assigns, heirs, executors and administrators, and no other persons
will have any right or obligation hereunder. The terms "successors" and
"assigns" as used herein shall not include a purchaser as such from any
Underwriter. This Agreement shall be governed by and construed and enforced in
accordance with, the internal laws of the State of Illinois.
13. BUSINESS DAY. For purposes of this Agreement, "business day" means any day
on which the New York Stock Exchange is open for trading.
If the foregoing is in accordance with your understanding of our agreement,
sign and return to us the enclosed duplicate hereof, whereupon it will become a
binding agreement between the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
XXXXXXXX'X CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted by
us in Chicago, Illinois, acting on behalf
of ourselves, the other Representatives
(if any), and the several Underwriters
(if any) named in Schedule II annexed
hereto, as of the date first above written.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Date: October 31, 1996
12
SCHEDULE I
UNDERWRITING AGREEMENT DATED OCTOBER 31, 1996
REGISTRATION STATEMENT NO. 33-50025
REPRESENTATIVES: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES:
Title: 7 1/2% Subordinated Deferrable Interest
Debentures due 2036
Aggregate Principal Amount: $200,000,000
Price to Public: 100%
Purchase Price by Underwriter
(include accrued interest or
amortization if applicable): Retail: 96.85% Institutional: 98.00%
Maturity: September 30, 2036
Interest Rate: 7 1/2%
Interest Payment Dates: March 31, June 30, September 30 and December 31
Regular Record Dates: March 15, June 15, September 15 and December 15
Redemption Provisions: At any time on or after December 31, 2001,
or upon the occurrence of a Tax Event as
described in the Prospectus Supplement, in
each case at 100% of the principal amount
together with accrued interest
Sinking Fund Provisions: None
Other Provisions: Interest may be deferrable at the option of the
Company under circumstances described in the
Prospectus Supplement for up to 20 consecutive
quarterly interest payment periods
SALE AND DELIVERY PROVISIONS UNDER SECTION 3:
Obligation to Purchase is: several and not joint [_]
several and not joint; provided, however that,
notwithstanding the provisions of Section 9
of the Underwriting Agreement, the Represent-
ative(s) listed above will, subject to the
terms and conditions hereof, purchase or cause
to be purchased any Securities which any
defaulting Underwriter or Underwriters have
agreed but failed or refused to purchase
pursuant to Section 3 hereof [X]
joint and several [_]
Payment to Be Made in: New York Clearinghouse (next day) funds [_]
or Federal (same day) funds [X]
Delivery of Securities: Physical delivery to Underwriters through
Representatives [_]
or delivery to Underwriters through facilities
of DTC by delivery to DTC of one or more
definitive global securities in book-entry
form [X]
CLOSING DATE, TIME AND LOCATION: November 5, 1996, 9:00 a.m., Xxxxxxx, Carton &
Xxxxxxx, 000 X. Xxxxx Xxxxxx, Xxxxxxx, XX 00000
ADDRESS FOR NOTICE TO REPRESENTATIVES:
c/o Merrill Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Capital Markets
SCHEDULE II
UNDERWRITERS PRINCIPAL AMOUNT
------------ ----------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated....................................... $ 22,500,000
Xxxxxxx, Sachs & Co. ................................... 21,875,000
X.X. Xxxxxx Securities Inc. ............................ 21,875,000
Xxxxxx Xxxxxxx & Co. Incorporated....................... 21,875,000
PaineWebber Incorporated................................ 21,875,000
Prudential Securities Incorporated...................... 21,875,000
Salomon Brothers Inc.................................... 21,875,000
Xxxxx Xxxxxx Inc........................................ 21,875,000
Bear, Xxxxxxx & Co. Inc. ............................... 1,625,000
Alex. Xxxxx & Sons Incorporated......................... 1,625,000
Xxxxx & Company......................................... 1,625,000
Xxxx Xxxxxxxx Incorporated.............................. 1,625,000
Xxxxxx, Read & Co. Inc. ................................ 1,625,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation..... 1,625,000
X.X. Xxxxxxx & Sons, Inc. .............................. 1,625,000
EVEREN Securities, Inc. ................................ 1,625,000
Xxxxxxxxxx Securities................................... 1,625,000
The Ohio Company........................................ 1,625,000
Xxxxxxxxxxx & Co., Inc. ................................ 1,625,000
Xxxxx Xxxxxxx Inc. ..................................... 1,625,000
Xxxxxxx Xxxxx & Associates, Inc. ....................... 1,625,000
Xxxxxx Xxxxxxx Incorporated............................. 1,625,000
Wheat, First Securities, Inc. .......................... 1,625,000
------------
Total.......................................... $200,000,000
============
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from XxXxxxxx'x Corporation (the
"Company"), and the Company agrees to sell to the undersigned, on ,
19 , (the "Delivery Date"), $
principal amount of the Company's
(the "Securities") offered by the Company's Final Prospectus
dated , 19 , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus accrued interest,
if any, thereon from , 19 , to the date of payment and delivery, and
on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made on
or before 11:00 AM on the Delivery Date to or upon the order of the Company in
New York Clearinghouse (next day) funds or Federal (same day) funds, as
specified in Schedule I to the Underwriting Agreement referred to in the Final
Prospectus mentioned above, at your office or at such other places as shall be
agreed between the Company and the undersigned upon delivery to the undersigned
of the Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written communication addressed to the Company not less than five full business
days prior to the Delivery Date. If no request is received, the Securities will
be registered in the name of the undersigned and issued in a denomination equal
to the aggregate principal amount of Securities to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) and
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar contracts
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 required 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, as of the date first above written, when such counterpart
is so mailed or delivered.
This agreement shall be governed by and construed and enforced in accordance
with, the internal laws of the State of Illinois.
Very truly yours,
-------------------------------------
(Name of Purchaser)
By __________________________________
(Signature and Title of Officer)
-------------------------------------
(Address)
Accepted:
XxXXXXXX'X CORPORATION
By __________________________________
(Authorized Signature)
