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 19, 1996 as supplemented by
Supplemental Indenture No. 1 to be dated as of January 8, 1998
(collectively, the ``Indenture''), between th e 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'') a registration statement on
Form S-3 under the Securities Act of 1933, as amended (the
``Securities Act '') (File No. 333-14141), which has become
effective, for the registration under the Securities Act of
the Securities. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(i) under the
Securities Act and complies 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, 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 statement File No. 333-14141,
including the exhibits thereto, is hereinafter called the
``Registration Statement; '' the prospectus in the form in
which it appears in registration statement File No. 333-14141,
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,
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 1996 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,
1996) 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
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 XxXxxxxx'x Development Italy,
Inc., McDonald's Properties (Australia) Pty., Ltd., McDonald's
Development Italia S.p.A, XxXxxxxx'x Restaurants (Swisse) S.A.
and XxXxxxxx'x Australia 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 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 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.
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 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, 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 $200,000,000 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,
Deputy General Counsel and Secretary, or a Vice President
and Assistant General Counsel of the Company, 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 conf orm 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.
(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.
(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.
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 t he
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, 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 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.
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 Xxxxx
---------------------
Date: January 5, 1998
SCHEDULE I
Underwriting Agreement dated January 5, 1998
Registration Statement No. 333-14141
Representatives:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Title, Purchase Price and Description of Securities:
Title:
6 3/8% Debentures due 2028
Aggregate Principal Amount:
$150,000,000
Price to Public:
99.642%
Purchase Price by Underwriter
(include accrued interest or
amortization if applicable):
98.767% plus accrued interest, if any,
from January 8, 1998
Maturity:
January 8, 2028
Interest Rate:
6 3/8%
Interest Payment Dates:
January 8 and July 8
Regular Record Dates:
January 1 and July 1, except as otherwise
described in the Prospectus Supplement
Redemption Provisions:
At the option of the Company in whole or
in part, at any time (a ``Company
Redemption Date'') with at least 30 days'
and not more than 60 days' notice, at a
redemption price equal to the greater of
(i) 100% of the principal amount of the
Debentures to be redeemed or (ii) the sum
of the present values of the remaining
scheduled payments of principal and
interest thereon discounted to the Company
Redemption Date on a semi-annual basis at
the Treasury Rate (as described in the
Prospectus Supplement) plus 10 basis
points, plus, in either case, accrued and
unpaid interest on the principal amount
being redeemed to the Company Redemption
Date
Sinking Fund Provisions:
None
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 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/
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:
January 8, 1998, 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
North Tower--5th Floor
World Financial Center
Syndicate Department
New York, New York 10281-1305
SCHEDULE II
Underwriters Principal Amount
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated $ 30,000,000
Xxxxxxx, Sachs & Co. 30,000,000
X.X. Xxxxxx Securities Inc. 30,000,000
Xxxxxx Xxxxxxx & Co. Incorporated 30,000,000
Salomon Brothers Inc 30,000,000
------------
$150,000,000
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)
