[Draft--9/2/98]
EXHIBIT 1.1
XXXXX XXXXXX GROUP INC.
Underwriting Agreement
,
To the Representative(s)
named in Schedule I
hereto of the Underwriter
named in Schedule II hereto
Dear Sirs:
Xxxxx Xxxxxx Group Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters, including you,
named in Schedule II hereto (the "Underwriters") for whom (if more than you)
you are acting as representatives (the "Representatives"), the principal
amount of its securities identified in Schedule I hereto to be issued under
an Indenture dated as of March 15, 1988, as supplemented by a First
Supplemental Indenture dated as of September 22, 1989, and by a Second
Supplemental Indenture dated as of March 22, 1991 (as so supplemented, the
"Indenture"), between the Company and , as
trustee (the "Trustee"). All or part, as the context may require, of such
securities are hereinafter called the "Securities". If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms.
1. Sale and Purchase of the Securities. The Company agrees to
sell to each Underwriter, and each Underwriter, on the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein stated, agrees to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of Securities
set forth opposite the name of such Underwriter in Schedule II hereto except
that if Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts of Securities
to be purchased by the Underwriters shall be as set forth in Schedule II hereto,
less the respective amounts of Contract Securities determined as provided
below. Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Securities to be purchased pursuant to
Delayed Delivery Contracts (as hereinafter defined) are herein called "Contract
Securities". The obligations of the Underwriters under this Agreement are
several and not joint.
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If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in
the form of Schedule III hereto, but with such changes therein as the Company
may authorize or approve. The Underwriters will endeavor to make such
arrangements, and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date (as
hereinafter defined), the fee set forth in Schedule I hereto with respect to the
principal amount of Securities for which Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be with corporations or institutions. The
Company will make Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must be for not less than the minimum principal amount set
forth in Schedule I hereto and the total principal amount of Contract
Securities may not exceed the maximum principal amount set forth in Schedule I
hereto. The Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same proportion to the
total principal amount of Contract Securities as the principal amount of
Securities set forth opposite the name of such Underwriter bears to the total
principal amount of Securities set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the total principal amount set forth in Schedule II hereto less the total
principal amount of Contract Securities.
2. Payment and Delivery. Delivery by the Company of the
Underwriters' Securities to the Representatives for the respective accounts of
the several Underwriters and payment by the Underwriters therefor by certified
or official bank check or checks payable in New York Clearing House funds to
the Company shall take place at the office, on the date and at the time
specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in
Section 10
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hereof (such date and time of delivery and payment for the Underwriters'
Securities being herein called the "Closing Date").
The Underwriters' Securities shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days prior to the Closing Date and shall be made available to
the Representatives for checking and packaging, at such place as is designated
by the Representatives, at least one full business day prior to the Closing
Date.
3. Registration Statements and Prospectus; Public Offering.
The Company represents and warrants to each Underwriter that the Company meets
the requirements for the use of Form S-3 under the Securities Act of 1933, as
amended, and the rules and regulations adopted thereunder (respectively, the
"Securities Act" and the "Rules"), and has carefully prepared and filed with the
Securities and Exchange Commission (the "Commission") one or more registration
statements on Form S-3 (the file numbers of which are set forth in Schedule I
hereto), which have become effective, for the registration under the Securities
Act of the Securities. Such registration statements, as amended by any amendment
which has become effective at the date of this Agreement, meet the requirements
set forth in Rule 415(a) under the Securities Act and comply in all other
material respects with such Rule. The Company proposes to file with the
Commission pursuant to Rule 424(b) under the Securities Act ("Rule 424(b)") a
supplement to the form of prospectus included in such registration statements
relating to the Securities and the plan of distribution thereof and has
previously advised you of all further information (financial and other) with
respect to the Company to be set forth therein. The registration statements,
each as amended by any amendment which has become effective at the date of this
Agreement, including the exhibits thereto and all documents incorporated therein
by reference pursuant to Item 12 of Form S-3 (the "Incorporated Documents"), are
hereinafter referred to as the "Registration Statements", and the form of
prospectus included in such Registration Statements as then amended, including
the Incorporated Documents, is hereinafter referred to as the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in which it
shall be filed with the Commission pursuant to Rule 424(b) (including the Basic
Prospectus as so supplemented) is hereinafter referred to as the "Final
Prospectus". Any
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preliminary form of the Final Prospectus which has heretofore been filed
pursuant to Rule 424(b) is hereinafter called the "Interim Prospectus". Any
reference herein to the Registration Statements, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus shall be deemed to refer to and
include the Incorporated Documents which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the date of
this Agreement or the issue date of the Basic Prospectus, any Interim Prospectus
or the Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statements, the Basic Prospectus, any Interim Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any Incorporated Documents
under the Exchange Act after the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be.
The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed any Interim
Prospectus and are authorized to distribute the Final Prospectus (as from time
to time amended or supplemented if the Company furnishes amendments or
supplements thereto to the Underwriters).
4. Representations and Warranties. The Company represents and
warrants to each Underwriter that:
(a) The Commission has not issued an order
preventing or suspending the use of the Basic Prospectus
or any Interim Prospectus.
(b) The Basic Prospectus and any Interim Prospectus have
complied in all material respects with the requirements of the
Securities Act and of the Rules and, as of their respective dates, did
not include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading.
(c) As of the date hereof, when the Final Prospectus is first
filed with the Commission pursuant to Rule 424(b), when, before the
Closing Date, any amendment to either of the Registration Statements
becomes effective, when, before the Closing Date, any document
incorporated by reference in either of the Registration
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Statements is filed with the Commission, when any supplement to the
Final Prospectus is filed with the Commission and on the Closing Date,
the Registration Statements, the Final Prospectus and any such
amendment or supplement will comply in all material respects with the
requirements of the Securities Act and the Rules, the Incorporated
Documents will comply in all material respects with the requirements of
the Exchange Act and the rules and regulations adopted by the
Commission thereunder, and the Registration Statements will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, the Indenture will comply in all
material respects with the requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules thereunder
and the Final Prospectus (together with any supplement thereto) will
not include 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;
provided, however, that this representation and warranty does not apply
to (i) statements or omissions in either of the Registration Statements
or the Final Prospectus (or in amendments or supplements thereto) made
in reliance upon information furnished in writing to the Company by the
Representatives on behalf of any Underwriter expressly for use therein
or (ii) that part of either Registration Statement which shall
constitute the Statement of Eligibility and Qualification of the
Trustee under the Trust Indenture Act on Form T-1, except statements or
omissions therein made in reliance upon information furnished in
writing to the trustee by or on behalf of the Company for use therein.
(d) The certificate delivered pursuant to paragraph (e) of
Section 5 hereof will be on the date on which it is to be delivered in
all material respects true and complete.
(e) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except
those which have been obtained or which may be required under the
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Securities Act and such qualifications as may be required under state
laws in connection with the purchase and distribution of the Securities
by the Underwriters, and consummation of such transactions will not
result in the breach of any terms of, or constitute a default under,
any other agreement or undertaking of the Company.
5. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters hereunder are subject to
the following conditions:
(a) Pursuant to Rule 424(b), the Final Prospectus shall have
been filed with the Commission no later than the second business day
following the earlier of the date of the determination of the offering
price of the Securities or the date it is first used after
effectiveness in connection with a public offering or sales, or
transmitted by a means reasonably calculated to result in filing with
the Commission by that date.
(b) No order suspending the effectiveness of either of the
Registration Statements, as amended from time to time, shall be in
effect and no proceedings for such purpose shall be pending before or
threatened by the Commission and any requests for additional
information on the part of the Commission (to be included in either of
the Registration Statements or the Final Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which information is
given in the Registration Statements and the Final Prospectus, (i)
there shall not have been any material change in the capital stock or
long-term debt of the Company and its subsidiaries, (ii) there shall
not have been any material adverse change in the general affairs,
management, financial position or results of operations of the Company
and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, in each case other
than as set forth in or contemplated by the Final Prospectus and (iii)
the Company and its subsidiaries shall not have sustained any material
loss or interference with their business taken as a whole from fire,
explosion, flood or other calamity, whether
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or not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree that is not
set forth in the Final Prospectus if, in the judgment of the Repre-
sentatives, any such development referred to in clauses (i), (ii) or
(iii) makes it impracticable or inadvisable to proceed with the
offering and delivery of the Securities as contemplated by the
Registration Statements and the Final Prospectus.
(d) The representations and warranties of the Company
contained herein shall be true and correct as of the date hereof, as of
the date of the effectiveness of any amendment to either of the
Registration Statements filed before the Closing Date, as of the date
of filing of any document incorporated by reference therein before the
Closing Date and on and as of the Closing Date and the Company shall
have performed all covenants and agreements herein contained to be
performed on its part at or prior to the Closing Date.
(e) The Representatives shall have received on the Closing
Date a certificate, dated the Closing Date, of the chief executive
officer or a vice president and of the principal financial or
accounting officer of the Company, which shall certify that (i) no
order suspending the effectiveness of either of the Registration
Statements or prohibiting the sale of the Securities has been issued
and no proceedings for such purpose are pending before or, to the
knowledge of such officers, threatened by the Commission and (ii) the
representations and warranties of the Company contained herein are true
and correct on and as of the Closing Date and the Company has performed
all covenants and agreements herein contained to be performed on its
part at or prior to the Closing Date.
(f) The Representatives shall have received on the Closing
Date a signed letter (which may refer to letters previously delivered
to one or more of the Representatives) from Ernst & Young LLP, dated
the Closing Date, substantially in the form of Exhibit A hereto.
In addition, unless otherwise provided in Schedule I hereto,
at the time this Agreement is executed,
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such firm of accountants shall have furnished to the Representatives a letter
or letters, dated the date of this Agreement, in form and substance satisfactory
to the Representatives, to the effect set forth in Schedule I hereto, in the
introductory paragraph to Exhibit A hereto, in clauses (a) and (b)(2) of Exhibit
A hereto and, to the extent referring to information contained in Exchange Act
reports incorporated in the Registration Statements and the Final Prospectus, in
clauses (b)(1) and (c) of Exhibit A hereto.
(g) The Representatives shall have received on the Closing
Date from the General Counsel of the Company, an opinion and a letter,
each dated the Closing Date, substantially identical to the proposed
form of opinion and form of letter set forth in Exhibit B hereto.
(h) The Representatives shall have received on the Closing
Date from Cravath, Swaine & Xxxxx, counsel for the Underwriters, an
opinion and a letter, each dated the Closing Date, with respect to the
Company, the Indenture, the Securities, the Registration Statements,
the Final Prospectus, this Agreement and any Delayed Delivery Contracts
and the form and sufficiency of all proceedings taken in connection
with the authorization, sale and delivery of the Securities. Such
opinion, letter and proceedings shall be reasonably satisfactory in all
respects to the Representatives, and the Company shall have furnished
to counsel for the Underwriters such documents as they may reasonably
request for the purpose of enabling them to render such opinion and
letter.
(i) Subsequent to the execution of this Agreement, there
shall not have been any decrease in the ratings of any of the Company's
debt securities by Xxxxx'x Investors Service, Inc. or Standard & Poor's
Rating Services, a Division of the XxXxxx-Xxxx Companies, Inc.
(j) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
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(k) Subsequent to the execution of this Agreement, the
Company shall not have filed an Incorporated Document under the
Exchange Act unless a copy thereof shall have first been submitted to
the Representatives within a reasonable period of time prior to the
filing thereof and the Representatives shall not have reasonably
objected thereto in writing.
6. Covenants. The Company covenants and agrees as follows:
(a) Before the termination of the offering of the Securities,
not to file any amendment or supplement (including the Final
Prospectus) to either of the Registration Statements relating to the
Securities or the Basic Prospectus (other than an Incorporated Document
filed under the Exchange Act) unless a copy thereof shall have first
been submitted to the Representatives within a reasonable period of
time prior to the filing thereof and the Representatives shall not have
reasonably objected thereto in writing. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed with
the Commission or transmitted for filing with the Commission in
accordance with the requirements of Rule 424(b).
(b) As soon as the Company is advised thereof, to advise the
Representatives (i) when the Final Prospectus shall have been filed
with the Commission or mailed to the Commission for filing pursuant to
Rule 424(b), (ii) when any amendment to either of the Registration
Statements relating to the Securities shall have become effective,
(iii) of the initiation or threatening by the Commission of any
proceedings for the issuance of any order suspending the effectiveness
of either of the Registration Statements, or the qualification of the
Indenture, (iv) of receipt by the Company or any representative of or
attorney for the Company of any other communication from the Commission
relating to the Company (except for routine communications relating to
the broker-dealer business of the Company), either of the Registration
Statements (except for communications relating to securities other than
the Securities), the Basic Prospectus, any Interim Prospectus or the
Final Prospectus and (v) of the receipt by the Company or any
representative of or attorney for the Company of any
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notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will make
every reasonable effort to prevent the issuance of an order suspending
the effectiveness of either of the Registration Statements or the
qualification of the Indenture and if any such order is issued to
obtain as soon as possible the lifting thereof.
(c) To deliver to the Representatives, without charge, (i)
upon request and to the extent not previously delivered, signed copies
of the Registration Statements and of any amendments thereto (including
all exhibits filed with, or incorporated by reference in, any such
document) and (ii) as many conformed copies of the Registration
Statements and of any amendments thereto which shall become effective
on or before the Closing Date (excluding exhibits) as the
Representatives may reasonably request.
(d) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, to deliver, without charge to
the Representatives and to Underwriters and dealers, at such office or
offices as the Representatives may designate, as many copies of any
Interim Prospectus and the Final Prospectus as the Representatives may
reasonably request.
(e) During the period in which copies of the Final Prospectus
are to be delivered as provided in paragraph (d) above, if any event
occurs as a result of which it shall be necessary to amend or
supplement the Final Prospectus in order to ensure that no part of the
Final Prospectus contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in light of the circumstances existing when the Final
Prospectus is to be delivered to a purchaser, not misleading, forthwith
to prepare, submit to the Representatives, file with the Commission and
deliver without charge, to the Underwriters and to dealers (to the
extent requested and at the addresses furnished by the Representatives
to the Company) to whom Securities may have been sold by the
Underwriters, and to other dealers upon request, either amendments or
supplements to the Final Prospec-
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tus so that the statements in the Final Prospectus, as so amended
or supplemented, will comply with the standard set forth in this
paragraph (e). Delivery by Underwriters of any such amendments or
supplements to the Final Prospectus shall not constitute a waiver
of any of the conditions set forth in Section 5 hereof.
(f) To make generally available to the Company's security
holders, as soon as practicable but in no event later than 45 days
after the end of the 12-month period beginning at the end of the
current fiscal quarter of the Company, an earnings statement that
satisfies the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder.
(g) To take such action as the Representatives may request in
order to qualify the Securities for offer and sale under the securities
or "blue sky" laws of such jurisdictions as the Representatives may
reasonably request; provided that in no event shall the Company be
obligated to subject itself to taxation or to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(h) For so long as any of the Securities remain outstanding,
to supply to the Representatives and to each other Underwriter who may
so request in writing copies of such financial statements and other
periodic and special reports as the Company may from time to time
distribute generally to its lenders or to the holders of any class of
its capital stock and to furnish to the Representatives copies of each
annual or other report it shall be required to file with the
Commission.
(i) To pay, or reimburse if paid by the Representatives,
whether or not the transactions contemplated hereby are consummated or
this Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement,
including those relating to (i) the preparation, printing and filing of
the Registration Statements and exhibits thereto, the Basic Prospectus,
any Interim
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Prospectus and the Final Prospectus, all amendments and supplements to
the Registration Statements, any Interim Prospectus and the Final
Prospectus, and the preparation and printing or other reproduction of
this Agreement, the Indenture and any agreement among underwriters and
agreements with dealers relating to the offering of the Securities,
(ii) the issuance of the Securities and the preparation and delivery of
certificates for the Securities, (iii) the registration or
qualification of the Securities for offer and sale under the securities
or "blue sky" laws of the various jurisdictions referred to in
paragraph (g) above, including the fees and disbursements of counsel
for the Underwriters in connection therewith and the preparation and
printing of "blue sky" memoranda and legal investment memoranda,
(iv) the furnishing to the Representatives and the Underwriters of
copies of any Interim Prospectus and the Final Prospectus and all
amendments or supplements to any Interim Prospectus and the Final
Prospectus, and of the several documents required by this Section 6
to be so furnished, including costs of shipping and mailing,
(v) the filing requirements, if any, of the National Association of
Securities Dealers, Inc., in connection with its review of corporate
financings, (vi) the furnishing to the Representatives and to the
Underwriters of copies of all reports and information required by
paragraph (h) above, including costs of shipping and mailing,
(vii) all transfer taxes, if any, with respect to the sale and
delivery of the Securities by the Company to the several
Underwriters, (viii) the fees charged by rating agencies in
connection with the rating of the Securities, (ix) the fees and
expenses of the Trustee and (ix) the fee, if any, for listing the
Securities on any national securities exchange.
(j) For a period beginning at the time of execution of this
Agreement and ending on the later of the Closing Date or the date on
which any price restrictions on the sale of the Securities are
terminated, without the prior consent of the Underwriters or the
Representatives, not publicly to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company.
(k) If the Final Prospectus states that the Securities will
be listed on a stock exchange, to use
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its best efforts to cause the Securities to be listed on such stock
exchange.
7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages and liabilities, joint or several
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in either of the Registration
Statements, the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as any
such untrue statement or omission or alleged untrue statement or omission was
made in (i) either of the Registration Statements, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, or such amendment or supplement, in
reliance upon and in conformity with information furnished in writing to the
Company by the Representatives on behalf of any Underwriter expressly for use
therein or (ii) that part of either of the Registration Statements which shall
constitute the Statement of Eligibility and Qualification on Form T-1 of the
Trustee under the Trust Indenture Act, except statements or omissions in such
Registration Statement made in reliance upon information furnished in writing to
the Trustee by or on behalf of the Company for use therein; provided, however,
that such indemnity with respect to the Basic Prospectus or any Interim
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased Securities that are the subject thereof if
such person did not receive a copy of the Final Prospectus (not including the
Incorporated Documents) at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a
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material fact contained in the Basic Prospectus or any Interim Prospectus was
corrected in the Final Prospectus, unless such failure to deliver the Final
Prospectus was a result of noncompliance by the Company with Section 6(d)
hereof.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
either the Securities Act or the Exchange Act, each director of the Company and
each officer of the Company who signs either of the Registration Statements to
the same extent as the foregoing indemnity from the Company to each Underwriter,
but only insofar as such losses, claims, damages or liabilities arise out of or
are based upon any untrue statement or omission or alleged untrue statement or
omission that was made in either of the Registration Statements, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with information
furnished in writing to the Company by the Representatives on behalf of such
Underwriter expressly for use therein; provided, however, that the obligation of
each Underwriter to indemnify the Company hereunder shall be limited to the
total price at which the Securities purchased by such Underwriter hereunder were
offered to the public. The Company acknowledges that the statements set forth in
the last paragraph of the cover page, under the headings "Underwriting" and
"Plan of Distribution" and, if Schedule I hereto provides for sales of
Securities pursuant to delayed delivery arrangements, under the heading "Delayed
Delivery Arrangements", in any Interim Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity and you, as the Representatives, confirm that such statements are
correct.
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action, suit or proceeding against any such party in respect
of which a claim is to be made against an indemnifying party under this Section
7, notify each such indemnifying party of the commencement of such action, suit
or proceeding, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party of any such action, suit or proceeding (i) shall
not relieve it from liability under this
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Section 7 unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) shall not relieve it from any liability that it may
have to any indemnified party otherwise than under this Section 7. In case any
such action, suit or proceeding shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, such
indemnifying party or parties shall be entitled to participate in, and, to the
extent that it or they shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party or parties
to such indemnified party of its or their election so to assume the defense
thereof, the indemnifying party or parties shall not be liable to such
indemnified party for any legal or other expenses, other than reasonable costs
of investigation subsequently incurred by such indemnified party in connection
with the defense thereof. The indemnified party shall have the right to employ
its counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of counsel
by such indemnified party has been authorized by the indemnifying party or
parties, (ii) the indemnified party shall have reasonably concluded that there
may be a conflict of interest between the indemnifying party or parties and the
indemnified party in the conduct of the defense of such action (in which case
the indemnifying party or parties shall not have the right to direct the defense
of such action on behalf of the indemnified party) or (iii) the indemnifying
party or parties shall not in fact have employed counsel to assume the defense
of such action, in each of which cases the fees and expenses of counsel shall be
at the expense of the indemnifying party or parties. An indemnifying party shall
not be liable for any settlement of any action or claim effected without its
written consent.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) is applicable but for any reason is held to be unavailable from the
Company, the Company and the Underwriters agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
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(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering of
the Securities; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or the Underwriters. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 8, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Securities Act or the Exchange Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statements and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this Section 8. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of
17
which a claim for contribution may be made against another party or parties
under this Section 8, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties (i) shall not
relieve such party or parties from liability under this Section 8 unless and to
the extent it or they did not otherwise learn of such action and such failure
results in the forfeiture by such party or parties of substantial rights and
defenses and (ii) shall not relieve such party or parties from any other
obligation it or they may have hereunder or otherwise than under this Section 8.
No party shall be liable for contribution with respect to any action or claim
settled without its consent.
9. Termination. This Agreement may be terminated by the
Representatives or by Underwriters who have agreed to purchase in the aggregate
at least 50% of the principal amount of the Securities by notifying the Company
at any time,
(a) prior to the earliest of (i) 5:00 p.m., New York time, on
the day the Final Prospectus is transmitted for filing with the
Commission pursuant to Rule 424(b) (or the actual time of such filing,
if such filing in fact occurs prior to 5:00 p.m., New York time, on
such date), (ii) the time of release by the Representatives for
publication of the first newspaper advertisement that is subsequently
published with respect to the Securities or (iii) the time when the
Securities are first generally offered by the Representatives to
dealers by letter or telegram;
(b) at or prior to the Closing Date if, in the judgment of the
Representatives or in the judgment of such Underwriters, as the case
may be, payment for and delivery of the Securities is rendered
impracticable or inadvisable because (i) additional material govern-
mental restrictions, not in force and effect on the date hereof, shall
have been imposed upon trading in securities generally or minimum or
maximum prices shall have been generally established on the New York
Stock Exchange, or trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or
trading in securities generally shall have been suspended on such
Exchange or a general banking moratorium shall have been established by
Federal or New York authorities, (ii) any event shall
18
have occurred or shall exist which makes untrue or incorrect in any
material respect any material statement or information contained in
either of the Registration Statements or the Final Prospectus or which
is not reflected in either of the Registration Statements or the Final
Prospectus but should be reflected therein in order to make the
statements or information contained therein not misleading in any
material respect or (iii) any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or
other calamity or crisis shall have occurred or shall have accelerated
to such an extent as, in the judgment of the Representatives, to affect
adversely the marketability of the Securities; or
(c) at or prior to the Closing Date, if any of the conditions
specified in Section 5 hereof shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of the
provisions hereof, the Company shall not be under any liability (except as
otherwise provided herein) to any Underwriter and no Underwriter shall be under
any liability to the Company, except that (a) if this Agreement is terminated
by the Representatives or the Underwriters 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, the Company will reimburse the Underwriters for
all reasonable out-of-pocket expenses (including the fees and disbursements of
their counsel) incurred by them and (b) no Underwriter who shall have failed or
refused to purchase the Securities agreed to be purchased by it hereunder,
without some reason sufficient hereunder to justify its cancelation or
termination of its obligations hereunder, shall be relieved of liability to the
Company or to the other Underwriters for damages occasioned by its default.
10. Default of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
termination of this Agreement) to purchase on the Closing Date the Securities
agreed to be purchased by such Underwriter or Underwriters, the Representatives
may find one or more substitute underwriters to purchase such Securities or make
such other arrangements as the Representatives may deem advisable or one or more
of the
19
remaining Underwriters may agree to purchase such Securities in such proportions
as may be approved by the Representatives in each case upon the terms herein
set forth. If no such arrangements have been made within 24 hours after the
Closing Date, and
(a) the aggregate principal amount of Securities to be
purchased by the defaulting Underwriters on the Closing Date shall not
exceed 10% of the total principal amount of Securities that the
Underwriters are obligated to purchase on the Closing Date, each of the
nondefaulting Underwriters shall be obligated to purchase such
Securities on the terms herein set forth in proportion to their
respective obligations hereunder; or
(b) the aggregate principal amount of Securities to be
purchased by the defaulting Underwriters on the Closing Date shall
exceed 10% of the total principal amount of Securities that the
Underwriters are obligated to purchase on the Closing Date, the Company
shall be entitled to an additional period of 24 hours within which to
find one or more substitute underwriters satisfactory to the
Representatives to purchase such Securities upon the terms set forth
herein.
In any such case, either the Representatives or the Company
shall have the right to postpone the Closing Date for a period of not more than
five business days in order that the necessary changes and arrangements may be
effected by the Representatives and the Company. If the aggregate principal
amount of Securities to be purchased on the Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the total principal amount of
Securities that the Underwriters are obligated to purchase on the Closing Date,
and neither the nondefaulting Underwriters nor the Company shall make
arrangements pursuant to this Section 10 within the period stated for the
purchase of the Securities that the defaulting Underwriter or Underwriters
agreed to purchase, this Agreement shall terminate without liability on the part
of any nondefaulting Underwriter to the Company and without liability on the
part of the Company except, in both cases, as provided in Sections 6(i) and 9
hereof. The provisions of this Section 10 shall not in any way affect the
liability of any defaulting Underwriter to the Company or the nondefaulting
Underwriters
20
arising out of such default. A substitute underwriter hereunder shall become
an Underwriter for all purposes of this Agreement.
11. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in Sections 6(i), 7, 8 and 9 hereof and the
representations, warranties and agreements of the Company in this Agreement
shall remain in full force and effect regardless of (a) any termination of this
Agreement except insofar as such termination renders the performance of such
agreements, other than those in Sections 6(i), 7, 8 and 9, inappropriate, (b)
any investigation made by or on behalf of any Underwriter or controlling person
or by or on behalf of the Company or any controlling person, director or officer
and (c) delivery of and payment for the Securities under this Agreement.
This Agreement has been and is made solely for the benefit of
the Underwriters and the Company, and their respective successors and assigns,
and, to the extent expressed herein, for the benefit of persons controlling any
of the Underwriters or the Company, directors and officers of the Company and
their respective successors and assigns, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue of
this Agreement. The term "successors and assigns" shall not include any
purchaser of Securities from any Underwriter merely because of such purchase.
This Agreement may be executed in counterparts, all of which, when taken
together, shall constitute one original.
12. Notices. All notices and communications hereunder shall be
in writing and mailed or delivered, or by telephone or telegraph if subsequently
confirmed in writing, to the Representatives at the address specified in
Schedule I hereto and to the Company at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of the agent for service shown on the cover page of
the most recent Registration Statement.
21
13. Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
Please confirm that the foregoing correctly sets forth the
agreement between us.
Very truly yours,
XXXXX XXXXXX GROUP INC.,
by
---------------------
Name:
Title:
Confirmed:
[name(s) of Representative(s)],
by
------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement dated
Registration Statement No[s].
Representative(s):
[include additional address(es) for notices]
Title, Purchase Price and Description of Securities:
Title:
Principal Amount:
Purchase Price (include accrued interest or amortization, if any):
Sinking fund provision:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each Contract: Maximum aggregate principal
amount of all Contracts:
Modification of items to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 5(f) at the time this Agreement is executed or
statement that no such letter is to be delivered:
Stock Exchange Listing:
Other Provisions:
SCHEDULE II
Principal
Amount
of Securities
to
Underwriter be Purchased
----------- -------------
$
Total.....................................................$
------------
------------
SCHEDULE III
Delayed Delivery Contract
,
[Insert name and address of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxx Xxxxxx
Group Inc. (the "Company"), and the Company agrees to sell to the
undersigned, on , , (the "Delivery Date"), $ principal
amount of the Company's (the "Securities") offered by the Company's
Prospectus dated , , and related Prospectus Supplement dated
, , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus [accrued interest
or amortization of original issue discount], if any, thereon from , ,
to the date of payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 a.m., New York City time, on the Delivery Date
to or upon the order of the Company in New York Clearing House (next day) funds,
at your office or at such other place as shall be agreed between the Company and
the undersigned upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the Company
to sell and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the failure
thereof) that (1) the purchase of Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have
2
sold to certain underwriters (the "Underwriters") such principal amount of the
Securities as is to be sold to them pursuant to the Underwriting Agreement
referred to in the Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
3
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
-----------------------------
(Name of Purchaser)
by
---------------------------
(Signature and Title
of Officer)
---------------------------
(Address)
Accepted:
XXXXX XXXXXX GROUP INC.
by
-----------------------------
(Authorized Signature)
EXHIBIT A
At the Closing Date, 1/ Ernst & Young LLP shall furnish to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that they
are independent certified public accountants within the meaning of the
Securities Act and the Exchange Act and the respective applicable published
rules and regulations thereunder, that the response to Item 10 of the
Registration Statements is correct insofar as it relates to them and stating in
effect that:
(a) in their opinion the consolidated financial statements and
schedules examined by them and incorporated by reference in the
Registration Statements and the Final Prospectus and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange Act and
the related published rules and regulations;
(b) on the basis of a reading of the "Selected Financial
Data", if any, included or incorporated in the Registration Statements
and the Final Prospectus and of the latest unaudited consolidated
condensed financial statements made available by the Company and its
consolidated subsidiaries; carrying out certain specified procedures
(but not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, directors and audit and
executive committees of the Company; and inquiries of certain officials
of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent financial statements
included or incorporated in the Registration Statements and the Final
Prospectus, nothing came to their attention which caused them to
believe that:
(1) the amounts in the unaudited "Summary Financial
Information", if any, included in the Final Prospectus, and
the amounts in the "Selected
----------
1/ All capitalized terms used herein shall have the meanings ascribed to
them in the Underwriting Agreement of which this Exhibit A is a part.
2
Financial Data", if any, included or incorporated in the
Registration Statements and the Final Prospectus, do not agree
with the corresponding amounts in the audited financial
statements from which such amounts were derived;
(2) any unaudited financial statements included or
incorporated in the Registration Statements and the Final
Prospectus do not comply as to form in all material respects
with applicable accounting requirements and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act or any material
modifications should be made to such unaudited financial
statements for them to be presented in conformity with such
generally accepted accounting principles;
(3) with respect to the period subsequent to the date
of the most recent financial statements included or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the letter,
in the consolidated long-term debt or non-convertible
redeemable preferred stock of the Company and its subsidiaries
or capital stock of the Company (excluding retained earnings
and foreign currency translation adjustment) as compared with
the amounts shown on the most recent consolidated balance
sheet included or incorporated in the Registration Statements
and the Final Prospectus, except in all instances for changes
disclosed in such letter or letters; or
(4) if any unaudited pro forma financial statements
are included or incorporated in the Registration Statement and
the Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the
Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma
3
adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements; and
(c) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Registration Statements, and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration Statements,
including specified information, if any, included or incorporated from
the Company's Annual Report on Form 10-K incorporated therein or
specified information, if any, included or incorporated from any of the
Company's Quarterly Reports on Form 10-Q incorporated therein, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
EXHIBIT B
The Company 1/ shall furnish to the Representatives the
opinion of the General Counsel of the Company, dated the Closing Date, to the
effect that:
(i) each of the Company and PaineWebber Incorporated,
Xxxxxxxx Xxxxxxxx Asset Management Inc., PaineWebber International
(U.K.) Ltd. and PaineWebber Real Estate Securities Inc., wholly owned
subsidiaries (individually a "Subsidiary" and collectively the
"Subsidiaries"), 2/ has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as described
in the Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction in which the failure to qualify and be in good standing
would materially and adversely affect the business or condition of the
Company and its consolidated subsidiaries, considered as a whole;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry of appropriate officers of the Company, any other
security interests, claims, liens or encumbrances, except for
restrictions on sales of capital stock contained in debt instruments;
(iii) the Securities conform to the description thereof
contained in the Final Prospectus; and, if the Securities are to be
listed on the New York Stock Exchange, authorization thereof has been
given, subject to official notice of issuance and evidence of satis-
factory distribution, or the Company has filed a preliminary listing
application and all required
----------
1/ All capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Underwriting Agreement of which this
Exhibit B is a part.
2/ In the case of PaineWebber International (U.K.) Ltd., an opinion of
counsel from the jurisdiction in which such Subsidiary is organized may be
delivered with respect to the matters covered herein.
2
supporting documents with respect to the Securities with the New York
Stock Exchange and such counsel has no reason to believe that the
Securities will not be authorized for listing, subject to official
notice of issuance and evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting creditors'
rights generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law);
and the 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 pursuant to the
Underwriting Agreement of which this Exhibit B is a part (the
"Underwriting Agreement"), in the case of the Underwriters' Securities,
or by the purchasers thereof pursuant to Delayed Delivery Contracts, in
the case of any Contract Securities, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws affecting creditors' rights generally
from time to time in effect, and subject, as to enforceability, to
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(v) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be dis-
closed in the Registration Statements which are not adequately
disclosed in the Final Prospectus; there is no franchise, contract or
other document of a character required to be described in the
Registration Statements or Final Prospectus, or to be filed as an
exhibit,
3
which is not described or filed as required; and the statements
included or incorporated in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to the Company
fairly summarize such matters;
(vi) the Registration Statements and any amendments thereto
relating to the Securities have become effective under the Securities
Act; any required filing of the Basic Prospectus, any Interim
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statements, as amended, has been issued, no proceedings for that
purpose have been instituted or are pending or contemplated under the
Securities Act;
(vii) the Underwriting Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company;
(viii) the information required to be set forth in each of the
Registration Statements in answer to Item 10 (insofar as it relates to
such counsel) of Form S-3, to the best knowledge of such counsel, is
accurately set forth in such Registration Statement in all material
respects or no response is required with respect to such Item; and the
authorized equity capitalization of the Company is as described in the
documents incorporated by reference in the Final Prospectus;
(ix) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated in the Underwriting Agreement
or in any Delayed Delivery Contract, except such as have been obtained
under the Securities Act and the Trust Indenture Act and such as may
be required under the "blue sky" laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
4
(x) none of the issue and sale of the Securities, the
consummation by the Company of any other of the transactions
contemplated in the Underwriting Agreement or in any Delayed Delivery
Contract or the fulfillment of the terms of the Underwriting Agreement
or of any Delayed Delivery Contract will conflict with, result in a
breach of, or constitute a default under the Restated Certificate of
Incorporation, as amended, or By-laws of the Company or the terms of
any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries is a party or
bound, or any order or regulation known to such counsel to be
applicable to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
Subsidiaries; and
(xi) to the knowledge of such counsel, no holder of securities
of the Company has rights to the registration of such securities under
the Registration Statements.
In rendering such opinion, such counsel may rely as to matters
involving the application of laws of any jurisdiction other than the States of
Delaware and New York or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters.
(B) The Company shall furnish to the Underwriters a letter
from the General Counsel of the Company, dated the Closing Date to the effect
that such counsel has no reason to believe that: (i) either Registration
Statement and the Final Prospectus (except the Statements of Eligibility (Form
T-1) included as exhibits to the Registration Statements, as to which he need
not express any view) were not appropriately responsive in all material respects
to the requirements of the Securities Act and the Trust Indenture Act and the
respective applicable rules and regulations of the Securities and Exchange
Commission thereunder and (ii) the Registration Statements, at the respective
times they 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, or that the Prospectus, at the date
5
of the letter, includes an untrue statement of a material fact 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.
