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Exhibit 1
UNDERWRITING AGREEMENT
May 24, 2001
Xxxxxx Dodge Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"Underwriters"), and we understand that Xxxxxx Dodge Corporation, a New York
corporation (the "Company"), proposes to issue and sell (i) $625,000,000
aggregate principal amount of its 8-3/4% Notes due June 1, 2011 (the "2011
Notes") and (ii) $275,000,000 aggregate principal amount of its 9-1/2% Notes due
June 1, 2031 (the "2031 Notes" and, together with the "2011 Notes", the "Offered
Securities"). The Offered Securities will be issued pursuant to the provisions
of an Indenture dated as of September 22, 1997 (the "Indenture") between the
Company and First Union National Bank, as successor Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Offered Securities set forth below opposite their names at a purchase price of
(i) 99.179% of the principal amount of the 2011 Notes and (ii) 98.878% of the
principal amount of the 2031 Notes, plus in each case accrued interest from May
30, 2001 to the date of payment and delivery:
Principal Amount of Principal Amount of
Name 8-3/4% Notes due 2011 9-1/2% Notes due 2031
---- --------------------- ---------------------
Xxxxxxx Xxxxx Xxxxxx Inc. $406,250,000 $178,750,000
Banc of America Securities LLC $ 46,875,000 $ 20,625,000
First Union Securities, Inc. $ 31,250,000 $ 13,750,000
Mizuho International plc $ 46,875,000 $ 20,625,000
Tokyo-Mitsubishi International plc $ 93,750,000 $ 41,250,000
------------ ------------
Total $625,000,000 $275,000,000
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The Underwriters will pay for the Offered Securities by wire transfer
in immediately available funds to the account designated by the Company, at
least one business day prior to the Closing Date, upon delivery of the Offered
Securities at the office of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, New York, New
York at 10:00 a.m. (New York time) on May 30, 2001. The time and date of such
payment and delivery are hereinafter referred to as the "Closing Date."
The Offered Securities shall have the terms set forth in the Prospectus
dated January 18, 2001 and the Prospectus Supplement dated May 24, 2001 (the
"Prospectus Supplement"), including the following:
(a) Terms of the 8-3/4% Notes due 2011:
Maturity Date: June 1, 2011
Interest Rate: 8-3/4%
Redemption Provisions: The Offered Securities are redeemable by the
Company in accordance with the provisions set
forth under "Description of the Notes --
Optional Redemption" in the Prospectus
Supplement and "Description of the Debt
Securities -- Redemption of Debt Securities"
in the Prospectus.
Interest Payment Dates: December 1 and June 1, commencing December 1,
2001 (Interest accrues from May 30, 2001)
Form and Denomination: Book entry, $1,000 minimum denomination and
integral multiples thereof
Public Offering Price: 99.829% plus accrued interest
Dealer Concession: 4.0%
Reallowance Concession: 2.5%
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(b) Terms of the 9-1/2% Notes due 2031:
Maturity Date: June 1, 2031
Interest Rate: 9-1/2%
Redemption Provisions: The Offered Securities are redeemable by the
Company in accordance with the provisions set
forth under "Description of the Notes --
Optional Redemption" in the Prospectus
Supplement and "Description of the Debt
Securities -- Redemption of Debt Securities"
in the Prospectus.
Interest Payment Dates: December 1 and June 1, commencing December 1,
2001 (Interest accrues from May 30, 2001)
Form and Denomination: Book entry, $1,000 minimum denomination and
integral multiples thereof
Public Offering Price: 99.753% plus accrued interest
Dealer Concession: 5.0%
Reallowance Concession: 2.5%
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All provisions contained in the document entitled Xxxxxx Dodge
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
May 24, 2001, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control and (ii) all references in
such document to a type of agreement that has not been entered into in
connection with the transactions contemplated hereby shall not be deemed to be a
part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXXX XXXXX XXXXXX INC.
BANC OF AMERICA SECURITIES LLC
FIRST UNION SECURITIES, INC.
MIZUHO INTERNATIONAL PLC
TOKYO-MITSUBISHI INTERNATIONAL PLC
By: XXXXXXX XXXXX BARNEY INC.,
acting severally on behalf of ourselves and the
several Underwriters named herein
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Director
Accepted:
XXXXXX DODGE CORPORATION
By: /s/ Xxxxxx X. Peru
-----------------------------------------
Name: Xxxxxx X. Peru
Title: Senior Vice President and
Chief Financial Officer
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XXXXXX DODGE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
May 24, 2001
From time to time, Xxxxxx Dodge Corporation, a New York corporation
(the "COMPANY"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). The term "REGISTRATION STATEMENT" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement and any registration statement relating to the Debt Securities
filed pursuant to Rule 462(b) under the Securities Act. The term "BASIC
PROSPECTUS" means the prospectus included in the Registration Statement. The
term "PROSPECTUS" means the Basic Prospectus together with the Prospectus
Supplement. The term "PRELIMINARY PROSPECTUS" means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "BASIC PROSPECTUS," "PROSPECTUS" and
"PRELIMINARY PROSPECTUS" shall include in each case the documents, if any,
incorporated by reference therein. The terms "SUPPLEMENT" and "AMENDMENT" or
"AMEND" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
The term "CONTRACT SECURITIES" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"DELAYED DELIVERY
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CONTRACTS"). The term "UNDERWRITERS' SECURITIES" means the Offered Securities
other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants
to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, from the date of its effectiveness
through and including each Closing Date will not contain, any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, from the date of
effectiveness of the Registration Statement through and including each
Closing Date will comply, in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, from the date of effectiveness of the
Registration Statement through and including each Closing Date will not
contain, any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section 1(b)
do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of 1939, as amended (the "TRUST INDENTURE ACT"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct
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of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(g) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the
case of the Contract Securities, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration, if any, and the
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availability of equitable remedies may be limited by equitable
principles of general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture, the
Offered Securities and the Delayed Delivery Contracts, except such as
have been obtained under the Securities Act and the Trust Indenture Act
and such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Offered
Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(l) The Company is not an "INVESTMENT COMPANY" or an entity
"CONTROLLED" by an "INVESTMENT COMPANY," as such terms are defined in
the Investment Company Act of 1940, as amended.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the
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Closing Date, the Company will pay to the Manager as compensation for the
accounts of the Underwriters the commission set forth in the Underwriting
Agreement in respect of the Contract Securities. The Underwriters will not have
any responsibility in respect of the validity or the performance of any Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided (i) in this
Section 4, payment for the Underwriters' Securities shall be made in immediately
available funds at the time and place set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities, registered in such names and in
such denominations as the Manager shall request prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Underwriters' Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities that are
Debt Securities in bearer form shall be effected by delivery of a single
temporary global Debt Security without coupons (the "GLOBAL DEBT SECURITY")
evidencing the Offered Securities that are Debt Securities in bearer form to a
common depositary for Euroclear Bank, S.A./N.V., as operator of the Euroclear
System ("EUROCLEAR"), and for Clearstream Banking S.A. ("CLEARSTREAM") for
credit to the respective accounts at Euroclear or Clearstream of each
Underwriter or to such other accounts as such Underwriter may direct. Any Global
Debt Security shall be delivered to the Manager not later than the Closing Date,
against payment of funds to the Company in the net amount due to the Company for
such Global Debt Security, by the method and in the form set forth in the
Underwriting Agreement. The Company shall cause definitive Debt Securities in
bearer form to be prepared and delivered in exchange for such Global Debt
Security in such manner and at such time as may be provided in or pursuant to
the Indenture; provided,
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however, that the Global Debt Security shall be exchangeable for definitive Debt
Securities in bearer form only on or after the date specified for such purpose
in the Prospectus.
5. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any official notice have been given of any intended
or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities
by Xxxxx'x Investors Service Inc., Standard & Poor's
Corporation or Duff & Xxxxxx Inc.;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, that, in the
reasonable judgment of the Manager, is material and adverse
and that makes it, in the reasonable judgment of the Manager,
impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus; and
(iii) no stop order suspending the effectiveness of
Registration Statement shall have been issued.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of S. Xxxxx Xxxxxx, Senior Vice President and General Counsel
of the Company, dated the Closing Date, to the effect set forth in
Exhibit A.
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(d) The Manager shall have received on the Closing Date an
opinion of Debevoise & Xxxxxxxx, counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel for the
Underwriters, dated the Closing Date, to the effect set forth in
Exhibit C.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "COMFORT LETTERS" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(g) On the Closing Date special counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Offered Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters contained herein, the Company covenants as follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Manager may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects. The Company will cause the
Prospectus Supplement to be filed with the Commission pursuant to Rule
424 under the Securities Act.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an
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Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters, and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented,
will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such
qualification and in connection with (i) the determination of the
eligibility of the Offered Securities for investment under the laws of
such jurisdictions as the Manager may designate and (ii) any review of
the offering of the Offered Securities by the National Association of
Securities Dealers, Inc.; provided, however, the Company shall not be
obligated to qualify as a foreign corporation or file any general
consent to service of process under the laws of any such jurisdiction
or subject itself to taxation as doing business in any such
jurisdiction.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder, including Rule 158 thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities
of the Company substantially similar to the Offered Securities (other
than (i) the Offered Securities, (ii) commercial paper issued in the
ordinary course of business and (iii) bank borrowings), without the
prior written consent of the Manager.
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(g) To pay all document production charges and expenses of
Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel to the Underwriters
(but not including their fees for professional services), in connection
with the preparation of this Agreement.
7. Covenants of the Underwriters.
Each of the several Underwriters represents and agrees with the Company
that:
(a) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D RULES"), (i) it has not offered or
sold, and during the restricted period will not offer or sell, Debt
Securities in bearer form (including any Debt Security in global form
that is exchangeable for Debt Securities in bearer form) to a person
who is within the United States or its possessions or to a United
States person and (ii) it has not delivered and will not deliver within
the United States or its possessions definitive Debt Securities in
bearer form that are sold during the restricted period;
(b) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer
form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer
form for the purpose of offering or selling such Debt Securities during
the restricted period, it will either (i) obtain from such affiliate
for the benefit of the Company the representations and agreements
contained in clauses (a), (b) and (c) or (ii) repeat and confirm the
representations and agreements contained in clauses (a), (b) and (c) on
such affiliate's behalf and obtain from such affiliate the authority to
so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into a
written contract, as defined in U.S.
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Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4) for the offer or sale during
the restricted period of Debt Securities in bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may
be offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given
to them by the U.S. Internal Revenue Code (the "CODE") and regulations
thereunder, including the D Rules. The restricted period is defined at U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(7).
8. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Manager expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company by such Underwriter in writing through the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the
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"INDEMNIFYING PARTY") in writing; provided that the failure to so notify the
indemnifying party will not relieve the indemnifying party from any liability
under the two preceding paragraphs to the extent the indemnifying party is not
materially prejudiced as a result thereof. The indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to the second preceding paragraph, and by the Company, in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph in
this Section 8 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to
11
16
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amounts of Offered Securities purchased by each of
such Underwriters and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and
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shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 8
and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
9. Termination. This Agreement shall be subject to termination, by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Manager, is material
and adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the reasonable judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner contemplated in the
Prospectus.
10. Defaulting Underwriters. If, on the Closing Date, any one or more
of the Underwriters shall fail or refuse to purchase Underwriters' Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names above bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the amount of Underwriters' Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 10 by
an amount in excess of one-ninth of such amount of Underwriters' Securities
without the written consent of such
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Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Underwriters' Securities to be purchased on
such date, and arrangements satisfactory to the Manager and the Company for the
purchase of such Underwriters' Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with 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 will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
11. Miscellaneous. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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Exhibit A
Opinion of General Counsel
for the Company
The opinion of General Counsel for the Company, to be delivered
pursuant to Section 5(c) of the Underwriting Agreement shall be to the effect
that:
1. The statements (1) in "ITEM 3 - LEGAL PROCEEDINGS" of the Company's
most recent annual report on Form 10-K incorporated by reference in the
Prospectus and (2) in "ITEM 1 - LEGAL PROCEEDINGS" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual report, in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the information
called for under the Exchange Act with respect to such legal matters, documents
and proceedings.
2. To the best of my knowledge, the execution and delivery by the
Company of, and the performance by the Company of its obligations under, the
Underwriting Agreement, the Indenture, the Offered Securities and the Delayed
Delivery Contracts will not contravene any provision of any agreement or other
instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole.
3. To the best of my knowledge, I do not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
I am delivering this opinion to you pursuant to Section 5(c) of the
Underwriting Agreement, and no persons other than the several Underwriters are
entitled to rely on this opinion.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of Arizona.
A-1
20
Exhibit B
Opinion of Debevoise & Xxxxxxxx,
Counsel for the Company
The opinion of Debevoise & Xxxxxxxx, independent counsel for the
Company, to be delivered pursuant to Section 5(d) of the Underwriting Agreement
shall be to the effect that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New York, with full
corporate power and authority under such laws to own its properties and conduct
its business as described in the Prospectus, and is duly qualified to transact
business as a foreign corporation and is in good standing under the laws of the
States of Arizona and New Mexico.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except that such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws of general application
affecting the rights and remedies of creditors and by general equitable
principles.
4. The Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company, enforceable in accordance with their respective terms except that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application affecting the
rights and remedies of creditors and by general equitable principles.
5. The Offered Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
the Underwriting Agreement, in the case of Underwriters' Securities, or by
institutional investors in accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company enforceable in accordance with their respective terms except that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar law of general application affecting the
rights and remedies of creditors and by general equitable principles.
B-1
21
6. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture,
the Offered Securities and the Delayed Delivery Contracts will not contravene
any provision of applicable law or the Certificate of Incorporation or By-Laws
of the Company or, to the best of our knowledge, any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company.
To the best of our knowledge, no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Underwriting Agreement,
the Indenture, the Offered Securities and the Delayed Delivery Contracts, other
than the order of the Securities and Exchange Commission making the Registration
Statement effective under the Securities Act and qualifying the Indenture under
the Trust Indenture Act of 1939, as amended, and except such as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Securities.
7. The statements (a) in the Prospectus under the captions
"DESCRIPTIONS OF THE DEBT SECURITIES", "PLAN OF DISTRIBUTION" and "DESCRIPTION
OF THE NOTES" and (b) in the Registration Statement under Item 15, in each case
insofar as such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information called for
under the Securities Act with respect to such legal matters, documents and
proceedings.
8. The Company is not an "INVESTMENT COMPANY" or an entity "CONTROLLED"
by an "INVESTMENT COMPANY", as such terms are defined in the Investment Company
Act of 1940, as amended.
9. The Registration Statement and Prospectus (except for the financial
statements and other financial and statistical information and schedules
included therein or incorporated by reference as to which we express no opinion)
appear on their face to be appropriately responsive in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder.
10. Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial statements and
other financial and statistical information and schedules included therein or
incorporated by reference as to which we express no opinion) appears on its face
to be appropriately responsive in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder.
We have not ourselves checked the accuracy and completeness of, or
otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectus except to the limited extent stated in paragraphs 7
and 9 above. In the course of our
B-2
22
review and discussion of the contents of the Registration Statement and the
Prospectus with certain officers and employees of the Company and its
independent accountants, but without independent check or verification, no facts
have come to our attention which cause us to believe that the Registration
Statement (other than the financial statements and other financial and
statistical information contained therein or incorporated by reference or the
part of the Registration Statement that constitutes the Form T-1, as to which we
express no belief) at the time it became effective contained, or as of the date
hereof contains, an untrue statement of a material fact or omitted, or as of the
date hereof omits, to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading, or that the
Prospectus (other than the financial statements and other financial and
statistical information contained therein or incorporated by reference as to
which we express no belief) contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
We are delivering this opinion to you pursuant to section 5(d) of the
Underwriting Agreement, and no persons other than the several Underwriters are
entitled to rely on this opinion.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of New York.
B-3
23
Exhibit C
Opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx,
Counsel for the Underwriters
The opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, to be delivered pursuant to Section 5(e) of the Underwriting
Agreement shall be to the effect that:
(i) the execution and delivery of the Underwriting
Agreement have been duly authorized by all necessary corporate
action of the Company, and the Underwriting Agreement has been
duly executed and delivered by the Company;
(ii) the execution and delivery of the Indenture have
been duly authorized by all necessary corporate action of the
Company, and the Indenture has been duly executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act of 1939, as amended, and is a valid,
binding and enforceable agreement of the Company, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of
equity.
(iii) if applicable, the execution and delivery of
the Delayed Delivery Contracts have been duly authorized by
all necessary corporate action of the Company and the Delayed
Delivery Contracts have been duly executed and delivered by
the Company and are valid, binding and enforceable agreements
of the Company, enforceable, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights
generally and to general principles of equity;
(iv) the execution and delivery of the Offered
Securities have been duly authorized by all necessary
corporate action of the Company and, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in
the case of the Underwriters' Securities, or by institutional
investors in accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities, will be
valid, binding and enforceable obligations of the Company,
entitled to the benefits of the Indenture, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of
equity;
1
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(v) the statements in the Prospectus under the
captions "DESCRIPTION OF THE DEBT SECURITIES", "DESCRIPTION OF
THE NOTES" and "PLAN OF DISTRIBUTION," insofar as such
statements purport to summarize certain provisions of the
Offered Securities and the offering thereof, provide a fair
summary of such provisions; and
(vi) no information has come to the attention of such
counsel that causes it to (1) believe that the Registration
Statement, including the documents incorporated by reference
therein (except the financial statements and Schedules and
other financial and statistical data included therein, as to
which such counsel need not express any belief and except for
that part of the Registration Statement that constitutes the
Form T-1 heretofore referred to), at the time it became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and
(2) believes that the Prospectus, including the documents
incorporated by reference therein (except the financial
statements and Schedules and other financial and statistical
data included therein, as to which such counsel need not
express any belief), as of the date thereof or of the date
such opinion is delivered, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(vii) With respect to clause (vi) above, such counsel
may provide such statements in a separate letter, and may
state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement
and the Prospectus and any amendments or supplements thereto
(other than the documents incorporated by reference) and upon
review and discussion of the contents thereof (including
portions of certain of the documents incorporated by
reference) but are without independent check or verification,
except as specified.
C-2
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Schedule I
DELAYED DELIVERY CONTRACT
___________, 200
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxx Dodge
Corporation, a New York corporation (the "COMPANY"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A annexed
hereto (the "SECURITIES"), offered by the Company's Prospectus dated January 18,
2001 and Prospectus Supplement dated ________________, 2001, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A. Each
such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "DELIVERY DATE."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
_______________________, New York, N.Y., at 10:00 a.m. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "UNDERWRITERS") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned as 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.
26
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement 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.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Yours very truly,
------------------------------------
(Purchaser)
By
---------------------------------
------------------------------------
(Title)
------------------------------------
------------------------------------
(Address)
Accepted:
XXXXXX DODGE CORPORATION
By
-----------------------------
27
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
28
SCHEDULE A
Securities:
----------
Principal Amounts or Numbers to be Purchased:
--------------------------------------------
Purchase Price:
--------------
Delivery Dates:
--------------
