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 March 1, 1987, as supplemented by Supplemental
Indenture No. 24, to be dated as of November 13, 1995 (collectively, the
"Indenture"), between the Company and First Fidelity Bank, National
Association (formerly Fidelity Bank, National Association), 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") a registration statement on Form S-3
under the Securities Act of 1933, as amended (the "Act") File No. 33-
50025, which has become effective, for the registration under the Act of
the Securities. Such registration statement meets the requirements set
forth in Rule 415(a)(1)(i) under the Act and complies in all other
material respects with said Rule. The Company proposes to file with the
Commission pursuant to Rule 424(b) under the Act a supplement to the form
of prospectus included in registration statement File No. 33-50025
relating to the Securities and the plan of distribution thereof. The
registration statement File No. 33-50025, including the exhibits thereto,
is hereinafter called the "Registration Statement"; the prospectus in
the form in which it appears in 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) (including the Basic Prospectus as
so supplemented) 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 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 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 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 and Qualification (Form T-1) under the Trust Indenture Act of
the Trustee or (ii) 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 1994 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) The Company and each of its Significant Subsidiaries (herein
defined to mean all subsidiaries which constitute "significant
subsidiaries", as such term is defined in Section 1-02(v) of Regulation
S-X, 17 CFR Part 210) have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective states or jurisdictions of incorporation, with power and
authority to own their properties and to conduct their businesses 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 XxXxxxxx'x 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.
(e) 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.
(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 or any of its Significant Subsidiaries is
a party, or any order, rule or regulation applicable to the Company or
any of its Significant Subsidiaries 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 Significant
Subsidiaries or any of their 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 Company and its consolidated subsidiaries hold good and
marketable title in fee simple, except as otherwise stated in the
Registration Statement, to all of the real property referred to therein
as being owned by them, free and clear of all liens and encumbrances,
except liens and encumbrances referred to in the Registration Statement
(or reflected in the financial statements included therein) and liens and
encumbrances which are not material in the aggregate and do not
materially interfere with the conduct of the business of the Company and
its consolidated subsidiaries, considered as a whole; and the properties
referred to in the Registration Statement as held under lease by the
Company and its consolidated subsidiaries are held by them under valid
and enforceable leases with such exceptions as do not materially
interfere with the conduct of the business of the Company and its
consolidated subsidiaries, considered as a whole.
(h) The Company has a duly authorized and outstanding
capitalization substantially as set forth in the Registration Statement;
and the outstanding shares of the Common Stock of the Company are duly
authorized and issued, fully paid and nonassessable.
(i) 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 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 and other laws affecting the enforceability of
creditors' rights and general principles of equity. The Indenture is duly
qualified under the Trust Indenture Act.
(j) This Agreement has been duly authorized, executed and delivered
on behalf of the Company.
(k) No approval, authorization, consent or other order of any
public board or body (other than in connection or in compliance with the
provisions of the Act and the securities or blue sky laws of various
jurisdictions) is legally required for the sale of the Securities.
(l) The Company and its consolidated subsidiaries, considered as a
whole, are conducting their businesses in substantial compliance with all
applicable laws, rules and regulations of the jurisdictions in which they
are conducting business.
(m) No default, if any, by the Company or any of its consolidated
subsidiaries under any lease, loan agreement, franchise, governmental
permit, or other agreement to which they are parties is material to the
Company and its consolidated subsidiaries, considered as a whole.
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 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 by certified or
official bank check or checks payable in New York Clearinghouse (next day)
funds, or, if so indicated on Schedule I hereto, in Federal (same 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 two 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.
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 mailed or
transmitted by courier to the Commission for filing pursuant to Rule
424(b) by first class certified or registered mail or overnight courier
and will cause the Final Prospectus to be filed with the Commission
pursuant to said Rule. The Company will promptly advise the
Representatives (i) when the Final Prospectus shall have been mailed or
transmitted by courier to the Commission for filing pursuant to Rule
424(b), (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 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 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 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 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 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 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, 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 and Legal Investment Survey;
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 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, Senior Vice President,
General Counsel and Secretary, dated the Closing Date, to the effect
that:
(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 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 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 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.
(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
Act or under state securities or blue sky laws.
(I) Each of the Significant Subsidiaries of the Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation with power and authority to own its properties and
conduct its business as described in the Final Prospectus, and the
Company and each of its Significant Subsidiaries are qualified as
foreign corporations in all jurisdictions in which their ownership
or lease of property requires such qualification, except where such
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.
(J) All issued and outstanding shares of capital stock of each
Significant Subsidiary (except McDonald's Deutschland, Inc.) have
been validly authorized and issued, are fully paid and nonassessable
and, to the best of the knowledge and belief of such counsel after
reasonable inquiry, are owned by the Company 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), free from any liens, claims or encumbrances.
(K) 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, any of the Company's Significant
Subsidiaries is a party, or the certificate of incorporation or by-
laws of any of the Company's Significant Subsidiaries as presently
in effect or, to the knowledge of such counsel, any order, rule or
regulation applicable to any of the Company's Significant
Subsidiaries of any court or of any federal or state regulatory body
or administrative agency or other governmental body having
jurisdiction over any of the Company's Significant Subsidiaries or
their properties.
(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 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,
there has occurred no event required to be set forth in the Final
Prospectus which has not been so set forth.
(iv) You shall have received a letter from Ernst & Young LLP,
dated the Closing Date, addressed to you substantially in the form
heretofore approved by you.
(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 telegram to the Company.
In rendering the opinions described in Sections 5(d)(i) and (ii) above,
Xx. Xxxxxx Xxxxxxx 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.
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 there shall have occurred any
general suspension of trading in securities on the New York Stock Exchange or
there shall have been established by the New York Stock Exchange or by the
Commission or by any federal or New York State agency or by the decision of
any court any limitation on prices for such trading or any restrictions on the
distribution of securities, all to such a degree as would in your judgment
materially adversely affect the market for the Securities, or if there shall
have been such a drastic change in general economic, political, or financial
conditions as would in your judgment materially adversely affect the market
for 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, telegraph 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 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 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, 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 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 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 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 specificially 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 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 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 Act shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of either the
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.
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 telefaxed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to the Company at Xxx XxXxxxxx'x Xxxxx, Xxx Xxxxx,
Xxxxxxxx 00000, Attention of the Chief Financial Officer, 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 in accordance
with the internal laws of the State of Illinois, without reference to choice
of law doctrine.
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, kindly 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
-------------------------
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.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxxx X. Xxxxx
Date: November 8, 1995
SCHEDULE I
Underwriting Agreement dated November 8, 1995
Registration Statement No. 33-50025
Representatives: X.X. Xxxxxx Securities Inc.
Title, Purchase Price and Description of Securities:
Title: 7.05% Debentures due November 15, 2025
Aggregate Principal Amount: $150,000,000
Price to Public: 99.468% of the principal amount of the
Securities, plus accrued interest from
November 13, 1995
Purchase Price by Underwriter (include accrued interest
or amortization if applicable: $147,889,500.00 which represents
98.593% of the principal amount of
the Securities, plus accrued
interest, from November 13, 1995
Maturity: November 15, 2025
Interest Rate: 7.05%
Interest Payment Dates: May 15 and November 15 of each year,
commencing May 15, 1996
Regular Record Dates: May 1 and November 1 next preceding
May 15 and November 15, respectively
Redemption Provisions: Redeemable in whole or in part at the
option of the Company at any time on
or after November 15, 2005,
at premiums declining to par on
November 15, 2015, together in each
case with accrued interest to the
date of redemption.
Sinking Fund Provisions: None
Other Provisions: None
Sale 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
Representative(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/
Closing Date, Time and Location: November 13, 1995, 9:00 A.M.
(Chicago time);
offices of Xxxxxxx, Carton & Xxxxxxx,
Quaker Tower,
000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx
Address for Notice to X.X. Xxxxxx Secutrities Inc.
Representatives: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
SCHEDULE II
Underwriters Principal Amount
X.X. Xxxxxx Securities Inc. $ 25,000,000
Salomon Brothers Inc 25,000,000
Xxxxxxx, Xxxxx & Co. 25,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 25,000,000
Xxxxxx Xxxxxxx & Co. Incorporated 25,000,000
PaineWebber Incorporated 25,000,000
----------------
Total $150,000,000
----------------
