Exhibit 1(d)(1)
X.X. Xxxxxx & Co. Incorporated
$___,000,000
Medium-Term Notes,
Series A
Due from 9 months to
30
Years from Date of Issue
DISTRIBUTION AGREEMENT
December , 1995
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
X.X. Xxxxxx & Co. Incorporated, a Delaware corporation
(the "Company"), confirms its agreement with you with respect to
the issue and sale from time to time by the Company of its Medium-Term
Notes, Series A due from 9 months to 30 years from
date of issue (the "Securities") in an aggregate initial offering
price of up to $________ (or the equivalent thereof in one or
more foreign currencies or composite currencies)and agrees with you
(the Agent", which term shall include any additional agents
appointed pursuant to Section 13 hereof) as set forth in this
Agreement.
The Securities are to be issued pursuant to either (i)
an indenture dated as of August 15, 1982 and all indentures
supplemental thereto, including the First Supplemental Indenture
dated as of May 5, 1986, the ( Senior Indenture ), between the
Company and First Trust of New York, National Association, successor
to Chemical Bank (formerly Manufacturers Hanover Trust
Company), as trustee; or (ii) an indenture dated as of March 1,
1993 (the Subordinated Indenture ), between the Company and
First Trust of New York, National Association, successor to
Citibank, N.A., as trustee. The Senior Indenture and the
Subordinated Indenture are referred to collectively herein as the
Indentures or individually as the Indenture . All references
herein to the Trustee shall mean the trustee under either the
Senior Indenture or the Subordinated Indenture, as applicable.
On the basis of the representations and warranties
herein contained, but subject to the terms and conditions stated
herein and to the reservation by the Company of the right to sell
Securities directly to investors (other than broker-dealers) on
its own behalf, the Company hereby (i) appoints the Agent as the
exclusive agent of the Company for the purpose of soliciting and
receiving offers to purchase Securities from the Company by
others pursuant to Section 2(a) hereof and (ii) agrees that,
except as otherwise contemplated herein, whenever it determines
to sell Securities directly to the Agent as principal, it will
enter into a separate agreement (each such agreement a "Terms
Agreement"), substantially in the form of Exhibit A hereto,
relating to such sale in accordance with Section 2(b) hereof.
The Company has prepared and filed a registration
statement on Form S-3 (No. 33- ) in respect of the
Securities with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). The
Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act
supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Securities.
The Registration Statement, including the exhibits thereto, as
amended to the Commencement Date (as hereinafter defined) is
hereinafter referred to as the "Registration Statement" and the
prospectus in the form in which it appears in the Registration
Statement is hereinafter referred to as the "Basic Prospectus".
The Basic Prospectus as supplemented by the prospectus supplement
or supplements (each a "Prospectus Supplement") specifically
relating to the Securities in the form filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the
Securities Act is hereinafter referred to as the "Prospectus".
Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act which
were filed under the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any
reference to "amend", "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue
of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed under the Exchange Act
after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the
case may be, which are deemed to be incorporated by reference
therein.
1. Representations. The Company represents and
warrants to, and agrees with, the Agent as of the Commencement
Date (as hereinafter defined), as of each date on which the
Company accepts an offer to purchase Securities (including any
purchase by the Agent as principal pursuant to a Terms Agreement
or otherwise), as of each date the Company issues and sells
Securities and as of each date the Registration Statement or the
Basic Prospectus is amended or supplemented, as follows (it being
understood that such representations and warranties shall be
deemed to relate to the Registration Statement, the Basic
Prospectus and the Prospectus, each as amended or supplemented to
each such date): (i) each document 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 thereunder, (ii) each part of the registration
statement (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Securities Act
relating to the Securities, when such part became effective, did
not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) each
preliminary prospectus, if any, filed pursuant to Rule 424 under
the Securities Act complied when so filed in all material
respects thereunder, (iv) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities
Act and the applicable rules and regulations thereunder and (v) the
Registration Statement and the Prospectus do not contain and, as
amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit 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; except that the above representations and warranties
do not apply to statements or omissions in the Registration
Statement, any preliminary prospectus or the Prospectus based
upon information furnished to the Company in writing by
the Agent expressly for use therein.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations
and warranties herein contained, but subject to the terms and
conditions herein set forth, the Agent hereby agrees (severally
and not jointly, if pursuant to this Agreement, or pursuant to
any other agreement or for any reason, more than one firm is
considered to be an Agent hereunder) as agent of the Company, to
use its reasonable efforts to solicit offers to purchase the
Securities from the Company upon the terms and conditions set
forth in the Prospectus as amended or supplemented from time to
time.
The Company reserves the right, in its sole discretion,
to instruct the Agent to suspend at any time, for any period of
time or permanently, the solicitation of offers to purchase
Securities. Upon receipt of at least one business day's prior
notice from the Company, the Agent will suspend solicitation of
offers to purchase Securities from the Company until such time as
the Company has advised the Agent that such solicitation may be
resumed. If, for any reason, there is more than one Agent
hereunder, the Company may suspend and/or advise that solicitation
may be resumed with regard to any or all such Agents. During the
period of time that such solicitation is suspended, the Company
shall not be required to deliver any opinions, letters or certificates
in accordance with Sections 4(f), 4(g) and 4(h); provided that if
the Registration Statement or Prospectus is amended or supplemented
during the period of suspension (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered for the Securities
or for a change that the Agents deem to be immaterial),
the Agent shall not be required to resume soliciting offers to purchase
Securities until the Company has delivered such opinions, letters
and certificates as the Agent may reasonably request.
The Company agrees to pay the Agent, as consideration
for the sale of each Security resulting from a solicitation made
or an offer to purchase received by the Agent, a commission in
the form of a discount from the purchase price of such Security
in an amount not to exceed the following applicable percentage of
the principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
From 9 months to less than 1 year....... .125%
From 1 year to less than 18 months...... .150%
From 18 months to less than 2 years..... .200%
From 2 years to less than 3 years....... .250%
From 3 years to less than 4 years....... .350%
From 4 years to less than 5 years....... .450%
From 5 years to less than 6 years....... .500%
From 6 years to less than 7 years....... .550%
From 7 years to less than 10 years...... .600%
From 10 years to less than 15 years..... .625%
From 15 years to less than 20 years..... .700%
20 years to and including 30 years...... .750%
The Agent is authorize to solicit offers to purchase
Securities only in the principal amount of $1,000 (or, in the
case of Securities not denominated in U.S. dollars, the
equivalent thereof in the applicable foreign currency or
composite currency, rounded down to the nearest 1,000 units of
such foreign currency or composite currency) or any amount in
excess thereof which is an integral multiple of
$1,000(or, in the case of Securities not denominated in U.S. dollars,
1,000 units of such foreign currency or composite currency). The Agent shall
communicate to the Company, orally or in writing, each offer to
purchase Securities received by the Agent as agent that in its
judgment should be considered by the Company. The Company shall
have the sole right to accept offers to purchase the Securities
and may reject any such offer in whole or in part. The Agent
shall have the right, in its sole discretion, to reject any offer
to purchase Securities, as a whole or in part, that it considers
to be unacceptable and any such rejection shall not be deemed a
breach of its agreements herein contained. The procedural
details relating to the issue and delivery of Securities sold by
an Agent as agent and the payment therefor are set forth in the
Administrative Procedures (as hereinafter defined).
(b) Purchase as Principal. Each sale of Securities to
the Agent as principal shall be made in accordance with the terms
of this Agreement and (unless such Agent shall otherwise agree) a
Terms Agreement which will provide for the sale of such
Securities to, and the purchase thereof by, the Agent. A Terms
Agreement will be substantially in the form of Exhibit A hereto
but may take the form of an exchange of any standard form of
written telecommunication between the Agent and the Company and
may also specify certain provisions relating to the reoffering of
such Securities by the Agent. The commitment of the Agent to
purchase securities as principal, whether pursuant to any Terms
Agreement or otherwise, shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein
and in the applicable Terms Agreement set forth. Each agreement
by the Agent to purchase Securities as principal (pursuant to a
Terms Agreement or otherwise) shall specify the principal amount
of Securities to be purchased by such Agent pursuant thereto, the
price to be paid to the Company for such Securities, the maturity
date of such Securities, the interest rate or interest rate
basis, if any, applicable to such Securities, any other terms of
such Securities, the time and date and place of delivery of and
payment for such Securities (the time and date of any and each
such delivery and payment, the "Time of Delivery"), any
provisions relating to rights of, and default by, underwriters
acting together with the Agent in the reoffering of Securities,
and shall also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to
Section 4 hereof. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and
delivery of Securities purchased by the Agent as principal and
the payment therefore shall be as set forth in the Administrative
Procedures.
(c) Obligations Several. The Company acknowledges that,
subject to the provisions of this Seciton 2, the Agent shall have
complete discretion as to the manner in which it solicits
purchasers for the Securities and as to the identity thereof. If
for any reason there is more than one Agent hereunder, the
Company acknowledges that the obligations of such
agents are several and not joint.
(d) Administrative Procedures. The Agent and the
Company agree to perform their respective duties and obligations
specifically provided to be performed in the Medium-Term Notes
Administrative Procedures (the "Administrative Procedures")
attached hereto as Exhibit B, as the same may be amended from
time to time. The Administrative Procedures may be amended only
by written agreement of the Company and the Agent.
3. Commencement Date. The documents required to be
delivered pursuant to Section 6 hereof on the Commencement Date
(as defined below) shall be delivered to the Agent at the offices
of X.X. Xxxxxx & Co. Incorporated, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 11:00 a.m., New York City time, on the date of this
Agreement, which date and time of such delivery may be postponed
by agreement between the Agent and the Company but in no event
shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or the
first date on which the Company accepts an offer by the Agent to
purchase Securities as principal (such time and date being
referred to herein as the "Commencement Date").
4. Covenants of the Company. The Company covenants
and agrees with the Agent:
(a) To furnish the Agent, without charge, a copy of
the Registration Statement including exhibits and materials,
if any, incorporated by reference therein 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 as the
Agent may reasonably request. The terms supplement and
amendment or amend as used in this Agreement with
respect to the Registration Statement, Prospectus or
preliminary prospectus shall include all documents filed by
the Company with the Commission subsequent to the date of
the Basic Prospectus, pursuant to the Exchange Act, which
are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Securities,
to furnish the Agent a copy of each such proposed amendment
or supplement.
(c) If at any time when a prospectus relating to the
Securities is required to be delivered under the Securities
Act, or in the opinion of counsel for the Agent the
Prospectus is required by law to be delivered with respect
thereto, any event shall occur as a result of which the
Prospectus as then amended or supplemented would include 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 then existing, not misleading,
or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith at its own expense,
to amend or to supplement the Prospectus and to furnish such
amendment or supplement to the Agent, so as to correct such
statement or omission or effect such compliance.
(d) To endeavor to qualify the Securities for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as the Agent shall reasonably request and to
pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in
connection with the determination of the eligibility of the
Securities for investment under the laws of such
jurisdictions as the Agent may designate.
(e) To make generally available to the Company's
securityholders as soon as practicable an earnings statement
covering a twelve month period beginning after the date of
the Distribution Agreement which shall satisfy the
provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder.
(f) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by
an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization
schedules or maturities offered on the Securities or for a
change the Agent deem to be immaterial) and each time the
Company sells Securities to the Agent as principal pursuant
to a Terms Agreement or other agreement and such Terms
Agreement or other agreement specifies the delivery of an
opinion under this Section 4(f) as a condition to the
purchase of Securities pursuant to such Terms Agreement or
other agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a written opinion of
Xxxxxxxx X. Xxxxx, Vice President, Assistant General Counsel
and Assistant Secretary of the Company, or other counsel for
the Company satisfactory to the Agent, dated the date of
such amendment or supplement, or the related Time of
Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the opinion
referred to in Section 6(b) hereof but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the date of such opinion, or, in lieu of
such opinion, counsel last furnishing such an opinion, may
furnish to the Agent a letter to the effect that the
Agent may rely on the opinion of such counsel which was last
furnished to the Agent to the same extent as though it were
dated the date of such letter (except that the statements in
such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or
supplemented to date of delivery of such letter).
(g) That (1) annually and (2) each time the Company
sells Securities to such Agent as principal pursuant to a
Terms Agreement or other agreement and such Terms Agreement
or other agreement specifies the delivery of a letter under
this Section 4(g) as a condition to the purchase of
Securities pursuant to such Terms Agreement or other
agreement, then in each such case the Company shall cause
the independent certified public accountants who have
certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registrations Statement forthwith to furnish the Agent a
letter, dated the date of such amendment or supplement or
the related Time of Delivery relating to such sale, as the
case may be, in form satisfactory to the Agent, of the same
tenor as the letter referred to in Section 6(d) hereof but
modified to relate to the Registration Statement and the
Prospectus as amended or supplemented to the date of such
letter with such changes as may be necessary to reflect such
amended or supplemented financial information included or
incorporated by reference in the Registration Statement or
the Prospectus as amended or supplemented, provided,
however, that, with respect to any financial information or
other matter, such letter may reconfirm as true and correct
at such date, as though made at and as of such date, rather
than repeat, statements with respect to such financial
information or other matter made in the letter referred to
in Section 6(d) hereof which was last furnished to such
Agent.
(h) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by
an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization
schedules or maturities offered on the Securities or for a
change the Agent deem to be immaterial), and each time the
Company sells Securities to the Agent as principal and the
applicable Terms Agreement or other agreement specifies the
delivery of a certificate under this Section 4(h) as a
condition to the purchase of Securities pursuant to such
Terms Agreement or other agreement, the Company shall
furnish or cause to be furnished forthwith to the Agent a
certificate signed by an officer of the Company, dated the
date of such amendment or supplement or the related Time of
Delivery relating to such sale, as the case may be, in form
satisfactory to the Agent, of the same tenor as the
certificates referred to in Section 6(e) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of delivery of such
certificate or to the effect that the statements contained
in the certificate referred to in Section 6(e) hereof which
was last furnished to the Agent are true and correct at such
date as though made at an as of such date (except that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to
such date).
5. Costs and Expenses. The Company covenants and
agrees with the Agent that the Company will, whether or not any
sale of Securities is consummated, pay all costs and expenses
incident to the performance of its obligations hereunder and
under any applicable Terms Agreement, including without limiting
the generality of the foregoing, all costs and expenses:
(i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the
Trustee, (ii) incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and
determination of eligibility for investment of the Securities
under the laws of such jurisdictions as the Agent (or in
connection with any Terms Agreement, the applicable Agent) may
designate, (iv) in connection with the listing of the Securities
on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with
the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, any Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to
the Agent and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein
provided and (vii) payable to rating agencies in connection with
the rating of the Securities.
6. Conditions. The obligations of the Agent, as
agent of the Company, at any time ("Solicitation Time") to
solicit offers to purchase the Securities, the obligation of the
Agent to purchase Securities as principal pursuant to any Terms
Agreement or otherwise, and the obligation of any other purchaser
to purchase Securities shall in each case be subject (1) to the
condition that all representations and warranties of the Company
herein and all statements of officer's of the Company made in any
certificate furnished pursuant to the provisions hereof are true
and correct (i) in the case of the Agent's obligation to solicit
offers to purchase Securities, at and as of such Solicitation
Time and (ii) in the case of the Agent's or any other purchaser's
obligation to purchase Securities, at and as of the time the
Company accepts the offer to purchase such Securities and, as the
case may be, at and as of the related Time of Delivery or time of
purchase; (2) to the condition that at or prior to such
Solicitation Time, time of acceptance, Time of Delivery or time
of purchase, as the case may be, the Company shall have complied
with all its agreements and all conditions on its part to be
performed or satisfied hereunder; and (3) to the following
additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding
Time of Delivery or time of purchase, as the case may be no
stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the
Commission and there shall have been no material adverse
change (not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement and
the Prospectus.
(b) On the Commencement Date, and in the case of a
purchase of Securities by the Agent as principal pursuant to
a Terms Agreement or otherwise, if called for by the
applicable Terms Agreement or other agreement, at the
corresponding Time of Delivery, Xxxxxxxx X. Xxxxx, Vice
President, Assistant General Counsel and Assistant Secretary
of the Company, shall have furnished to the Agent her
written opinion, dated the Commencement Date or Time of
Delivery, as the case may be, in form and substance
satisfactory to the Agent.
(c) On the Commencement Date, and in the case of a
purchase of Securities by an Agent as principal pursuant to
a Terms Agreement or otherwise, if called for by the
applicable Terms Agreement or other agreement, at the
corresponding Time of Delivery, Cravath, Swaine and Xxxxx,
counsel to the Agent, shall have furnished to the Agent such
opinion or opinions, dated the Commencement Date or Time of
Delivery, as the case may be, with respect to the validity
of the Indenture, the Securities, the Registration
Statement, the Prospectus as amended or supplemented and
other related matters as the Agent may reasonably request,
and in each case such counsel shall have received such
papers and information as they may reasonably request to
enable them to pass upon such matters.
(d) On the Commencement Date, and in the case of a
purchase of Securities by an Agent as principal pursuant to
a Terms Agreement or otherwise, if called for by the
applicable Terms Agreement or other agreement, at the
corresponding Time of Delivery, the Company's independent
certified public accountants who have certified the
financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration
Statement and Prospectus, as then amended or supplemented,
shall have furnished to the Agent a letter, dated the
Commencement Date or Time of Delivery, as the case may be,
in form and substance satisfactory to the Agent, 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 relating to the Company contained in or
incorporated by reference in the Registration Statement and
the Prospectus, as then amended or supplemented.
(e) On the Commencement Date, and in the case of a
purchase of Securities by the Agent as principal pursuant to
a Terms Agreement or otherwise, if called for by the
applicable Terms Agreement or other agreement, at the
corresponding Time of Delivery, the Agent shall have
received a certificate or certificates signed by an officer
of the Company, dated the Commencement Date or Time of
Delivery, as the case may be, to the effect set forth in
Section 6(a)above.
(f) On the Commencement Date and at each Time of
Delivery, the Company shall have furnished to the
Agent such further certificates, information and documents as the Agent
may reasonably request.
(g) There shall not have occurred any material outbreak or
escalation of hostilities or other national or international
calamity or crisis of such magnitude and severity in its effect
on the financial markets of the Untied States as, in the reasonable
judgment of the Agent, to prevent or materially to impair the
marketing, or enforcement of contracts for sale, of the Securities.
(h) Trading in securities generally on the New York
Stock Exchange shall not have been suspended or materially limited.
(i) A general moratorium on commercial banking activities
in the State of New York shall not have been declared by either
Federal or New York State authorities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless the Agent and each person,
if any, who controls the Agent 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 the legal fees and
other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus
(as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary
prospectus 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 untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with
information relating to the Agent furnished to the Company in
writing by such Agent expressly for use therein.
(b) The Agent agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company
within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Agent, but only with
reference to information relating to the Agent furnished to the
Company in writing by the Agent expressly for use in the
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus. If for any
reason there is more than one Agent hereunder, the Company
acknowledges that such Agents agreement under this Section 7(b)
is several and not joint.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which
indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses
of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person 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 Person unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties
in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person 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 Person
shall not, in connection with any proceeding or related
proceeding 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 Indemnified Persons. Any such separate firm for
the Agent and such control persons of the Agent shall be
designated in writing by the Agent and any such separate firm for
the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company
shall be designated in writing by the Company. The Indemnifying
Person 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 Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in
paragraphs (a) or (b) this Section 7 is unavailable to an
Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to herein in connection
with any offering of Securities, then each Indemnifying Person
under such paragraph, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person 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 Agent on the other from the offering of the
Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on
the one hand and the Agent on the other 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 Agent on the other in connection with the
offering of such Securities shall be deemed to be in the same
respective proportion as the net proceeds from the offering of
such Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the
Agent in respect thereof bear to the aggregate offering price of
such Securities. The relative fault of the Company on the one
hand and of the Agent on the other shall be determined by
reference to, among other things, whether the untrue or alleged
statement of a material fact or the omission or alleged untrue
statement of a material fact relates to information supplied by
the Company on the one hand or by the Agent on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Agent agree that it would not be
just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any
other method of allocation that does not take account of the
equitable considerations referred to above in this
subsection (d). The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities
referred to above in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event
shall the Agent be required to contribute any amount in excess of
the amount by which the total price at which the Securities
referred to in Section 7(d) that were sold by or through the
Agent exceeds the amount of any damages that the Agent 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. If for any reason
there is more than one Agent hereunder, the obligation of each such Agent to
contribute pursuant to this subsection 7(d) is several (in the
proportion that the principal amount of the Securities the sale
of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal
amount of the Securities the sale of which by or through any
Agent gave rise to such losses, claims, damages or liabilities)
and is not joint.
(e) The indemnity and contribution agreements
contained in this Section 7 are in addition to any liability
which the Indemnifying Persons may otherwise have to the
Indemnified Persons referred to above.
8. Termination. This Agreement may be terminated at
any time by the Company or by the Agent, in each case upon the
giving of written notice of such termination to each other party
hereto. Any Terms Agreement shall be subject to termination in
the absolute discretion of the Agent on the terms set forth or
incorporated by reference therein. The termination of this
Agreement shall not require termination of any agreement by the
Agent to purchase Securities as principal (whether pursuant to a
Terms Agreement or otherwise) and the termination of such an
agreement shall not require termination of this Agreement. In
the event this Agreement is terminated,(x) and in the event there
is more than one Agent hereunder, this Agreement shall remain in
full force and effect with respect to any Agent as to which such
termination has not occurred,(y) this Agreement shall remain in
full force and effect with respect to the rights and obligations
of any party which have previously accrued or which relate to
Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such termination and
(z) in any event, the provisions of the fourth paragraph of
Section 2(a), Section 2(c),4(c) and Sections 4(e), 5, 7, 9, 10,
12 and 15 shall survive; provided that if at the time of
termination an offer to purchase Securities has been accepted by
the Company but the time of delivery to the purchaser or its
agent of such Securities has not yet occurred, the provisions of
Sections 2(b), 2(d), 4(b) through 4(d), 4(f) through 4(h) and 6
shall also survive. If any Terms Agreement is terminated, the
provisions of Section 4(c) and Sections 2(b), 2(d), 4(b), 4(d),
4(f) through 4(h), 5, 6, 7, 9, 10, 12 and 15 (which shall have
been incorporated by reference in such Terms Agreement) shall
survive.
9. Position of the Agents. The Agent, in soliciting
offers to purchase Securities from the Company and in performing
the other obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal, pursuant to a
Terms Agreement or otherwise), is acting solely as agent for the
Company and not as principal and does not assume any obligation
towards or relationship of agency or trust with any purchaser of
Securities. The Agent will make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to
purchase Securities from the Company was solicited by the Agent
and has been accepted by the Company, but the Agent shall not
have any liability to the Company in the event such purchase is
not consummated for any reason. If the Company shall default on
its obligation to deliver Securities to a purchaser whose offer
it has accepted, the Company shall (i) hold the Agent harmless
against any loss, claim, damage or liability arising from or as a
result of such default by the Company and (ii) notwithstanding
such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such
sale.
10. Representations and Indemnities to Survive. The
respective indemnities and contribution agreements,
representation, warranties and other statements of the Company,
its officers and the Agent set forth in or made pursuant to this
Agreement or any agreement by the Agent to purchase Securities as
principal shall remain in full force and effect regardless of any
termination of this Agreement or any such agreement, any
investigation made by the Agent or any controlling person of the
Agent, or the Company, or any officer or director or any
controlling person of the Company, and shall survive each
delivery of and payment for any of the Securities.
11. Notices. Except as otherwise specifically
provided herein or in the Administrative Procedures, all
statements, requests, notices and advices hereunder shall be in
writing and effective only on receipt, and will be delivered by
hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telex. Communications to the Agents will be sent, in the case
of X.X. Xxxxxx Securities Inc., to 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (Telex: RCA 232194) Attention: Medium-Term Note
Department and, if sent to the Company, to it at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000 (Telex: ________); Attention:
_______________.
12. Successors. This Agreement and any Terms
Agreement shall be binding upon, and inure solely to the benefit
of, the Agent and the Company, and their respective successors
and the officers, directors and controlling persons referred to
in Section 7 and (to the extent expressly provided in Section 6)
the purchasers of Securities, and no other person shall acquire
or have any right or obligation under or by virtue of this
Agreement or any Terms Agreement.
13. Amendments. This Agreement may be amended or
supplemented if, but only if, such amendment or supplement is in
writing and is signed by the Company and the Agent; provided that
the Company may from time to time, on 7 days prior written notice
to the Agents but without the consent of any Agent, amend this
Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall
become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto. The Agent shall sign any
amendment or supplement giving effect to the addition of any such
firm as an Agent under this
Agreement.
14. Business Day. Time shall be of the essence in
this Agreement and any Terms Agreement. As used herein, the term
"business day" shall mean any day which is not a Saturday or
Sunday or legal holiday or a day on which banks in New York City
are required or authorized by law or executive order to close.
15. Applicable Law. This Agreement and any Terms
Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York, without giving effect to the
conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms
Agreement may be signed in counterparts, each of which shall be
an original, and all of which together shall constitute one and
the same instrument.
17. 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.
If the foregoing is in accordance with your
understanding, please sign and return to us ____ counterparts
hereof, whereupon this letter and the acceptance by you thereof
shall constitute a binding agreement between the Company and you
in accordance with its terms.
Very truly yours,
X.X. Xxxxxx & Co. Incorporated
By: __________________________
Accepted in New York, New York,
as of the date first above written:
X.X. Xxxxxx Securities Inc.
By: ________________________
Name:
Title:
Exhibit A
X.X. Xxxxxx & Co. Incorporated
MEDIUM TERM NOTES, SERIES A
TERMS AGREEMENT
____________, 19__
X.X. Xxxxxx & Co. Incorporated
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: ___________________
Re: Distribution Agreement dated as of , 1995
(the "Distribution Agreement")
---------------------------------------------------
The undersigned agrees to purchase your Medium-Term Notes,
Series A having the following terms:
Specified Currency:__________________________________
Principal Amount:____________________________________
Original Issue Date:_________________________________
Settlement Date, Time
and Place:________________________________________
Maturity Date:_______________________________________
Purchase Price: ____% of Principal Amount, plus accrued
interest, if nay, from Settlement Date
Price to Public: ____% of Principal Amount, plus accrued
interest, if any, from Settlement Date
Redemption Date (Dates): , commencing
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity
[(For Fixed Rate Notes)
Interest Rate:________________________
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule: ]
[(For Floating Rate Notes)
Initial Interest Rate:____________________
Interest Rate Basis (Commercial Paper, LIBOR,
Treasury, ___________) : __________________
Index Maturity (30, 60, 90 days, 6 months, 1 year,
other): __________________________
Interest Reset Period (monthly, quarterly,
semiannually, annually): ____________________
Interest Payment Period (monthly, quarterly,
semiannually, annually): ____________________
Spread: _________________ points (+/-)
Spread Multiplier: ______________%
Maximum Interest Rate: __________%
Minimum Interest Rate: __________%
Initial Interest Reset Date:_____________________
Interest Reset Dates:____________________________
Interest Determination Dates:____________________
Interest Payment Dates:__________________________
Calculation Agent: ]
Other terms of Securities:
Provisions relating to underwriter
default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4
through 7, 10, 11, 12 and 15 of the Distribution Agreement and
the related definitions are incorporated by reference herein and
shall be deemed to have the same force and effect as if set forth
in full herein.
This Agreement is subject to termination in our
absolute discretion on the terms incorporated by referenced
herein. If this Agreement is so terminated, the provisions set
forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purpose of this Agreement.
[The certificate referred to in Section 4(h) of the
Distribution Agreement, the opinion referred to in Section 4(f)
of the Distribution Agreement and the accountants' letter
referred to in Section 4(g) of the Distribution will be
required.]
X.X. Xxxxxx Securities Inc.
By:_________________________
(Title)
Accepted:
X.X.Xxxxxx & Co. Incorporated
By:________________________
(Title)
