EXHIBIT 1.1
XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED
[______]% Senior Notes due 2007
UNDERWRITING AGREEMENT
_____________, 1997
Chase Securities Inc.,
as Representative of the several
Underwriters named in Schedule I
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx International Industries, Incorporated, a Delaware corporation (the
"Company"), proposes to issue and sell $150,000,000 aggregate principal amount
of its [______]% Senior Notes due 2007 (the "Senior Notes"). The Senior Notes
are to be issued under an Indenture (the "Indenture") to be dated as of
__________, 1997 by and between the Company and PNC Bank, National Association,
as trustee (the "Trustee"), the form of which has been filed as an exhibit to
the Registration Statement (as defined herein). This is to confirm the
agreement concerning the purchase of the Senior Notes from the Company by the
several Underwriters named in Schedule I hereto (the "Underwriters") for which
Chase Securities Inc. is acting as Representative (the "Representative").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form S-3 (File No. 333-28711), including a
form of prospectus, relating to the Senior Notes has been prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission") and
has been filed by the Company with the Commission. The Company has filed one or
more amendments thereto, including the related preliminary prospectus, each of
which has previously been furnished to you. The Company will next file with the
Commission either (i) prior to effectiveness of such registration statement, a
further amendment to such registration statement (including the form of final
prospectus) or (ii) after effectiveness of such registration statement, a final
prospectus in accordance with Rules 430A and 424(b)(1) or (4).
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In the case of clause (ii), the Company has included in such registration
statement, as amended at the Effective Time (as defined below), all information
(other than information permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A ("Rule 430A Information"))
required by the Securities Act and the rules thereunder to be included in the
final prospectus with respect to the Senior Notes and the offering thereof. As
filed, such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such required
information, with respect to the Senior Notes and the offering thereof and,
except to the extent the Representative shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the execution of this Agreement or, to the extent not completed at such
time, shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the execution of this Agreement, will be included or made
therein. For purposes of this Agreement, "Effective Time" means the date and
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was or is declared effective by the Commission.
"Preliminary Prospectus" means each prospectus included in such registration
statement, or amendments thereof, before it becomes effective under the
Securities Act, any prospectus filed with the Commission by the Company pursuant
to Rule 424(a) and the prospectus included in the Registration Statement at the
Effective Time that omits Rule 430A Information. Such registration statement,
as amended at the Effective Time, including all Rule 430A Information, if any,
is hereinafter referred to as the "Registration Statement", and the form of
prospectus relating to the Senior Notes, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) or, if no such filing is
required, as included in the Registration Statement is hereinafter referred to
as the "Prospectus". Any reference herein to any Preliminary Prospectus, the
Prospectus or the Registration Statement shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Form S-3 under the
Securities Act, as of the date of such Preliminary Prospectus, Prospectus or
Registration Statement, as the case may be.
(b) At the Effective Time, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date (as hereinafter defined), the Prospectus (and any
supplements thereto) will, comply in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the respective rules thereunder; at the
Effective Time, the Registration Statement did not or will not include 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; at the Effective Time and on the Closing Date, the Indenture did or
will comply in all material respects with the applicable requirements of the
Trust Indenture Act and the rules thereunder; and, at the Effective Time, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date, the
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. The preceding sentence does not apply to (i)
that part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for use therein
(the "Underwriters' Information"). The parties acknowledge and agree that the
Underwriters' Information consists solely of paragraphs three and seven, and the
second sentence of paragraph eight under the caption "Underwriting" in the
Prospectus.
(c) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus, and each Preliminary Prospectus has conformed
in all material respects to the requirements of the Securities Act and the Rules
and Regulations. The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission thereunder, and
none of such documents, when they were filed with the Commission, 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.
(d) The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed on
Schedule II hereto. The Company and each of its principal subsidiaries, as
defined in Schedule II hereto, have been duly incorporated and are validly
existing as corporations in good standing under the laws of their respective
jurisdictions of incorporation, with full power and authority (corporate and
other) to own and lease their properties and conduct their respective businesses
as described in the Prospectus; all of the outstanding capital stock of the
Company's subsidiaries owned beneficially by the Company, directly or
indirectly, is free and clear of all claims, liens, charges and encumbrances;
the Company and each of its subsidiaries are in possession of and operating in
compliance with all authorizations, licenses, permits, consents, certificates
and orders material to the conduct of their respective businesses, all of which
are valid and in full force and effect; the Company and each of its subsidiaries
are duly qualified to do business and in good standing as foreign corporations
in each jurisdiction in which the ownership or leasing of properties or the
conduct of their respective businesses requires such qualification, except for
jurisdictions in which the failure to so qualify would not have a material
adverse effect upon the Company and its subsidiaries taken as a whole; and no
proceeding has been instituted in any such jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable.
All the outstanding shares of capital stock of each subsidiary of the Company
have been duly authorized and validly issued, are fully paid and nonassessable.
(f) The Indenture, when duly executed by the proper officers of the Company
and delivered by the Company, will constitute a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, except
as enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and (ii) general equitable principles (regardless of
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whether such enforceability is considered in a proceeding in equity or at law).
The Senior Notes, when duly executed, authenticated, issued and delivered as
provided in the Indenture, will be duly and validly issued and outstanding and
will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms, except
as enforceability may be limited by (x) bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and (y) general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The
Indenture conforms to the descriptions thereof contained in the Prospectus.
(g) The Company has full right, power and authority to execute and
deliver this Agreement, the Indenture and the Senior Notes and to perform its
obligations hereunder and thereunder; and all corporate action required to be
taken for the due and proper authorization, execution and delivery of this
Agreement, the Indenture and the Senior Notes and the consummation of the
transactions contemplated by this Agreement and the Indenture have been duly and
validly taken.
(h) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company in
accordance with its terms. The making and performance of this Agreement by the
Company and the consummation of the transactions herein contemplated will not
violate any provisions of the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of its subsidiaries, and will
not conflict with, result in the breach or violation of, or constitute, either
by itself or upon notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of its respective
properties may be bound or affected, any statute or any authorization, judgment,
decree, order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the Company or
any of its subsidiaries or any of their respective properties. No consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the execution
and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement, except for compliance with the Securities Act,
the Blue Sky laws applicable to the public offering of the Senior Notes by the
several Underwriters and the clearance of such offering with the National
Association of Securities Dealers, Inc. (the "NASD").
(i) There are no persons with registration or other similar rights either
to have any securities registered pursuant to the Registration Statement or to
have any securities otherwise registered by the Company under the Securities Act
in connection with or as a result of the execution, delivery and performance of
this Agreement.
(j) To the best of the Company's knowledge, KPMG Peat Marwick LLP, who have
expressed their opinion with respect to the financial statements and schedules
filed with the Commission as a part of the Registration Statement and included
in or incorporated by reference into the Prospectus and in the Registration
Statement, are independent accountants as required by the Securities Act and the
Rules and Regulations.
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(k) The consolidated financial statements and schedules of the Company and
its subsidiaries, and the related notes thereto, included in or incorporated by
reference into the Registration Statement and the Prospectus present fairly the
financial position of the Company and its subsidiaries as of the respective
dates of such financial statements and schedules, and the results of operations
and cash flows of the Company and its subsidiaries for the respective periods
covered thereby. Such statements, schedules and related notes have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis as certified by the independent accountants named in
subsection 2(j) above. No other financial statements or schedules are required
to be included in the Registration Statement. The selected financial data set
forth in the Prospectus under the captions "Capitalization" and "Summary
Consolidated Financial and Operating Data" fairly present the information set
forth therein on the basis stated in the Registration Statement.
(l) Except as disclosed in the Prospectus, and except as to any breaches,
violations or defaults which individually or in the aggregate would not be
material to the Company and its subsidiaries taken as a whole, neither the
Company nor any of its subsidiaries is in violation or default of any provision
of its certificate of incorporation or bylaws, or other organizational
documents, or is in breach of or default with respect to any provision of any
agreement, judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which it is a party or by
which it or any of its properties are bound; is in violation in respect of any
law, ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject; and there does not exist any state of facts
which constitutes an event of default on the part of the Company or any such
subsidiary as defined in such documents or which, with notice or lapse of time
or both, would constitute such an event of default, except where any such event
of default would not individually or in the aggregate have a material adverse
effect on the condition (financial or otherwise), business, results of
operations or prospects of the Company and its subsidiaries taken as a whole.
(m) There are no contracts or other documents required to be described in
the Registration Statement or to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have not
been described or filed as required. The contracts described in the Prospectus
are in full force and effect on the date hereof; and neither the Company nor any
of its subsidiaries, nor to the best of the Company's knowledge, any other party
is in breach of or default under any of such contracts which, in the case of any
such breach or default by a third party, would give rise to rights of the
Company or any of its subsidiaries under any such document.
(n) Except as disclosed in the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to the best of the
Company's knowledge, threatened to which the Company or any of its subsidiaries
is or may be a party or of which property owned or leased by the Company or any
of its subsidiaries is or may be the subject, or related to environmental or
discrimination matters, which actions, suits or proceedings might, individually
or in the aggregate, prevent or adversely affect the transactions contemplated
by this Agreement or result in a material adverse change in the condition
(financial or otherwise), properties, business, results of operations or
prospects of the Company and its subsidiaries; and no labor disturbance by the
employees of the Company or any of its subsidiaries exists or is imminent which
is likely to
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affect materially and adversely such condition, properties, business, results of
operations or prospects. Neither the Company nor any of its subsidiaries is a
party or subject to the provisions of any material injunction, judgment, decree
or order of any court, regulatory body, administrative agency or other
governmental body which has had or could reasonably be expected to have a
material adverse effect on its condition (financial or otherwise), properties,
business, results of operations or prospects.
(o) The Company and each of its subsidiaries has good and marketable title
to all the properties and assets reflected as owned in the financial statements
hereinabove described (or elsewhere in the Prospectus), subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except (i) those, if any,
reflected in such financial statements (or elsewhere in the Prospectus), or (ii)
those which are not material in amount and do not adversely affect the use made
and proposed to be made of such property by the Company and its subsidiaries.
The Company and each of its subsidiaries holds its respective leased properties
under valid and binding leases, with such exceptions as are not materially
significant in relation to the business of the Company. Except as disclosed in
the Prospectus, the Company owns or leases all such properties as are necessary
to its operations as now conducted or as proposed to be conducted.
(p) Since the respective dates as of which information is given in the
Registration Statement and Prospectus, and except as described in or
specifically contemplated by the Prospectus: (i) the Company and its
subsidiaries have not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business
or which could result in a material reduction in the future earnings of the
Company and its subsidiaries; (ii) the Company and its subsidiaries have not
sustained any material loss or interference with their respective businesses or
properties from fire, flood, windstorm, accident or other calamity, whether or
not covered by insurance; (iii) the Company has not paid or declared any
dividends or other distributions with respect to its capital stock and the
Company and its subsidiaries are not in default in the payment of principal or
interest on any outstanding debt obligations; (iv) there has not been any change
in the capital stock (other than upon the exercise of options) or indebtedness
material to the Company and its subsidiaries (other than in the ordinary course
of business); and (v) there has not been any material adverse change in the
condition (financial or otherwise), business, properties, results of operations
or prospects of the Company and its subsidiaries taken as a whole.
(q) Except as disclosed in or specifically contemplated by the Prospectus,
the Company and its subsidiaries have sufficient trademarks, trade names, patent
applications, patent rights, mask works, copyrights, trademark registrations,
servicemarks, servicemark registrations, licenses, approvals and governmental
authorizations to conduct their businesses as described in the Prospectus; the
expiration of or inability to use any trademarks, trade names, patent rights,
mask works, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), licenses, approvals or governmental authorizations would not have a
material adverse effect on the condition (financial or otherwise), business,
results of operations or prospects of the Company and its subsidiaries taken as
a whole; and the Company has no knowledge of any material infringement by it or
its subsidiaries of trademark, trade name rights, patent rights, mask works,
copyrights,
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licenses, trade secret or other similar rights of others, and there is no claim
currently being made against the Company or its subsidiaries regarding
trademark, trade name, patent, mask work, copyright, license, trade secret or
other infringement which could have a material adverse effect on the condition
(financial or otherwise), business, results of operations or prospects of the
Company and its subsidiaries taken as a whole.
(r) The Company has not been advised, and has no reason to believe, that
either it or any of its subsidiaries is not conducting business in compliance
with all applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, including, without limitation, all applicable local,
state and federal environmental laws and regulations; except, in each case,
where failure to be so in compliance would not materially adversely affect the
condition (financial or otherwise), business, results of operations or prospects
of the Company and its subsidiaries taken as a whole.
(s) The Company and its subsidiaries have filed all necessary federal,
state and foreign income and franchise tax returns or have requested extensions
thereof (except when the failure to so file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole) and have paid all
taxes shown as due thereon, except for taxes which are being contested in good
faith and for which adequate reserves have been provided; and the Company has no
knowledge of any tax deficiency which has been or might be asserted or
threatened against the Company or its subsidiaries which could materially and
adversely affect the business, operations or properties of the Company and its
subsidiaries taken as a whole.
(t) The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(u) Each of the Company and its subsidiaries maintains insurance of the
types and in the amounts generally deemed adequate for its business, including,
but not limited to, insurance covering real and personal property owned or
leased by the Company and its subsidiaries against theft, damage, destruction,
acts of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(v) Neither the Company nor any of its subsidiaries has at any time during
the last five years (i) made any unlawful contribution to any candidate for
foreign office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any federal or state, governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
(w) The Company has not taken, directly or indirectly, any action designed
to or that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Senior Notes to facilitate the sale or resale
of the Senior Notes.
(x) The Company is eligible to use a Registration Statement on Form S-3
under the Securities Act and the Rules and Regulations thereunder for purposes
of registering the Senior Notes under the Securities Act.
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2. PURCHASE BY THE UNDERWRITERS.
On the basis of the representations, warranties and agreements contained
herein, and subject to the terms and conditions set forth herein, the Company
agrees to issue and sell to each of the Underwriters, severally and not jointly,
and each of the Underwriters, severally and not jointly, agrees to purchase from
the Company, the principal amount of Senior Notes set forth opposite the name of
such Underwriter in Schedule I hereto at a purchase price equal to [ ]% of the
principal amount thereof plus accrued interest, if any, from _______ to the
Closing Date.
The Company shall not be obligated to deliver any of the Senior Notes
except upon payment for all the Senior Notes to be purchased as provided herein.
The Company acknowledges and agrees that each Underwriter may sell Senior
Notes to any of its affiliates and that any such affiliate may sell Senior Notes
purchased by it to an Underwriter.
3. DELIVERY OF AND PAYMENT FOR THE SENIOR NOTES.
Delivery of and payment for the Senior Notes shall be made at the offices
of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as shall be agreed upon by the Representative and the
Company, at 10:00 A.M., New York City time, on __________, 1997 (such date and
time being referred to herein as the "Closing Date"). On the Closing Date, the
Company shall deliver or cause to be delivered to the Underwriters for the
account of each Underwriter through the book-entry facilities of The Depository
Trust Company (the "DTC") certificates for the Senior Notes (with any transfer
taxes payable in connection with the transfer of such Senior Notes to the
Underwriters duly paid by the Company) against payment of the purchase price to
or upon the order of the Company by wire transfer of same day funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each of the Underwriters
hereunder. The Senior Notes so to be delivered will be represented by one or
more permanent global certificates registered in the name of the DTC or its
nominee. The Company shall make the certificates for the Senior Notes available
for inspection by the Underwriters and for delivery to the DTC in New York, New
York, at least one full business day prior to the Closing Date.
4. FURTHER AGREEMENTS OF THE COMPANY.
The Company agrees with each of the Underwriters:
(a) That, if the Effective Time is prior to the execution and delivery of
this Agreement, to file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) of Rule 424(b) (or, if applicable and if
consented to by the Representative subparagraph (4) of Rule 424(b)) within the
time period prescribed by such rule, and provide evidence satisfactory to the
Representative of such timely filing;
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(b) To advise the Representative promptly of any proposal to amend or
supplement (i) the registration statement as filed, (ii) the related prospectus,
(iii) the Registration Statement or (iv) the Prospectus, and not to effect such
amendment or supplementation without the consent of the Representative; to
advise the Representative promptly of the receipt of any comments from the
Commission and of the effectiveness of the Registration Statement (in each case
if the Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplement to the Registration Statement or
the Prospectus, or of any request by the Commission therefor, and of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose; to
advise the Representative promptly of any order preventing or suspending the use
of any prospectus relating to the Senior Notes, of the suspension of the
qualification of the Senior Notes for offering or sale in any jurisdiction, and
of the initiation or threatening of any proceeding for any such purpose; and to
use its best efforts to prevent the issuance of any stop order or of any such
order preventing or suspending the use of any prospectus relating to the Senior
Notes or suspending any such qualification and, if any such stop order or order
of suspension is issued, to obtain the lifting thereof at the earliest possible
time;
(c) To furnish promptly to each of the Representative and counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith; and to deliver promptly
without charge to the Representative such number of the following documents as
the Representative from time to time may reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than this
Agreement and the Indenture) and (ii) each Preliminary Prospectus, the
Prospectus (not later than 10:00 A.M., New York City time, on the day following
the execution and delivery of this Agreement) and any amended or supplemented
Prospectus (not later than 10:00 A.M. New York City time, on the day following
the date of such amendment or supplement);
(d) To furnish promptly to each of the Underwriters and counsel for the
Underwriters, without charge, as many copies of the Preliminary Prospectus and
the Prospectus (and any amendments or supplements thereto) as may reasonably be
requested;
(e) If the delivery of a prospectus is required at any time in connection
with the sale of the Senior Notes and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or if for any other reason it shall be necessary at such time to
amend or supplement the Prospectus in order to comply with the Securities Act,
then to notify the Representative immediately thereof, and promptly to prepare
and file with the Commission an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(f) To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may, in the
reasonable
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judgment of the Company and the Representative, be required by the Securities
Act or requested by the Commission or advisable in connection with the
distribution of the Senior Notes;
(g) As soon as practicable to make generally available to the holders of
the Senior Notes and to deliver to the Representative an earning statement of
the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158);
(h) For so long as any of the Senior Notes are outstanding, to furnish to
the Representative within 15 days thereof, copies of all materials furnished by
the Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder as the
Underwriters may reasonably request;
(i) The Company shall apply the net proceeds of its sale of the Senior
Notes as set forth in the Prospectus;
(j) The Company will maintain a registrar for the Senior Notes;
(k) The Company will not take, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably be expect to
constitute, the stabilization or manipulation of the price of any securities of
the Company; and
(l) For a period of 30 days from the date of the Prospectus, not to offer
for sale, sell, contract to sell or otherwise dispose of, directly or
indirectly, or file a registration statement for, or announce any offering of,
any debt securities (or securities convertible into debt securities) of the
Company (other than the Senior Notes in connection with this Offering) without
the prior written consent of the Representative.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The respective obligations of each of the Underwriters hereunder are
subject to the accuracy, when made and on the Closing Date, of the
representations and warranties of the Company contained herein, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Underwriters shall not have discovered and disclosed to the Company
on or prior to the Closing Date that the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in the opinion
of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel is material and is
required to be stated therein or is necessary to make the statements therein not
misleading.
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(b) If the Effective Time is not prior to the execution and delivery of
this Agreement, then the Registration Statement shall have become effective and
the Indenture shall have been qualified under the Trust Indenture Act, and the
Representative shall have received notice thereof, not later than (i) 6:00 P.M.
New York City time, on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 P.M., New York City time, on
such date or (ii) 12:00 Noon, New York City time, on the business day following
the day on which the offering price was determined if such determination
occurred after 3:00 P.M., New York City time, on such date. If the Effective
Time is prior to the execution and delivery of this Agreement, then the
Prospectus shall have been timely filed with the Commission in accordance with
Section 4 of this Agreement. Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to the reasonable
satisfaction of the Representative.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Senior Notes, the
Indenture, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated hereby,
shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all documents
and information that such counsel may reasonably request to enable them to pass
upon such matters.
(d) There shall have been furnished to you, in form and substance
satisfactory to you, except as otherwise expressly provided below:
(i) An opinion of Xxxxx, Day, Xxxxxx & Xxxxx, as counsel
to the Company, addressed to the Underwriters and dated the Closing
Date, in the form attached as Exhibit A.
(ii) An opinion of Xxxxx Xxxxxxxx, Esquire, Tax/Legal
Counsel for the Company, addressed to the Underwriters and dated the
Closing Date, in the form attached as Exhibit B.
(e) The Underwriters shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to such matters as the Representative may reasonably require, and
the Company shall have furnished to such counsel such documents as such counsel
reasonably request for enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriters a letter (the
"bring-down letter") of KPMG Peat Marwick LLP ("KPMG"), addressed to the
Underwriters and dated the Closing Date confirming, as of the date of the bring-
down letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of the bring-
down letter), the conclusions and findings of such firm with respect to the
financial
12
information and other matters covered by the letter delivered to the
Representative concurrently with the execution of this Agreement, the substance
of which shall have been agreed upon and confirmed in writing between the
Representative and KPMG.
(g) The Company shall have furnished to the Underwriters a certificate,
dated the Closing Date, of its Chairman of the Board or its President and its
Chief Financial Officer stating that:
(i) such officers have carefully examined the Registration Statement
and the Prospectus;
(ii) in their opinion, as of the Effective Time, the Registration
Statement did not, and as of its date and the Closing Date, the Prospectus
did not and does not include any untrue statement of a material fact and
did not and does not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
since the Effective Time, no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statement or the
Prospectus; and
(iii) to the best of their knowledge after reasonable
investigation, as of the Closing Date (A) the representations and
warranties of the Company in this Agreement are true and correct, (B) the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, (C) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission, and subsequent to the
date of the most recent financial statements in the Prospectus, there has
been no material adverse change in the financial position or results of
operation of the entities purported to be shown thereby, or any change, or
any development including a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, except as
set forth in the Prospectus.
(h) The Indenture shall have been duly executed and delivered by the
Company and the Trustee and the Senior Notes shall have been duly executed and
delivered by the Company and authenticated by the Trustee.
(i) At the Closing Date, there shall exist no default or event of default
under the Indenture.
(j) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the capital
stock or consolidated long-term debt of the Company and its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole, the effect of which, in
any such case described above, is, in the judgment of the Underwriters so
material and adverse as to make it impracticable or inadvisable
13
to proceed with the public offering or the delivery of the Senior Notes on the
terms and in the manner contemplated in the Prospectus (exclusive of any
supplement).
(k) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Senior Notes, or any
of the Company's other debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations, and (ii) no such organization shall
have publicly announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its rating of
the Senior Notes or any of the Company's other debt securities.
(l) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the over-the-counter
market shall have been suspended or limited, or minimum prices shall have been
established on either of such exchanges or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority having
jurisdiction, or trading in securities of the Company on any exchange or in the
over-the-counter market shall have been suspended, (ii) a general moratorium on
commercial banking activities shall have been declared by Federal or New York
State authorities, (iii) an outbreak or escalation of hostilities involving the
United States or a declaration by the United States of a national emergency or
war or (iv) such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the reasonable
judgment of the Representative impracticable or inadvisable to proceed with the
public offering or the delivery of the Senior Notes on the terms and in the
manner contemplated in the Prospectus.
(m) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency
which would, as of the Closing Date, prevent the issuance and sale of the Senior
Notes; and no injunction, restraining order or order of any other nature by a
federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance or sale of the Senior Notes.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters.
6. TERMINATION.
This Agreement shall become effective (other than Sections 8 and 12 which
shall become effective upon the execution hereof) upon the later of when (i) the
Underwriters and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. The obligations of the Underwriters hereunder may be terminated by
the Underwriters in its absolute discretion, by notice given to and received by
the Company prior to delivery of and payment for the Senior Notes, if, prior to
that time, any of the events described in Sections 5(j), 5(k), 5(l) or 5(m)
shall have occurred.
14
7. DEFAULTING UNDERWRITERS.
If, on the Closing Date, any Underwriter or Underwriters default in the
performance of its or their obligations under this Agreement, the Underwriters
may make arrangements for the purchase of such Senior Notes by other persons
satisfactory to the Company and the Underwriters, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, then
each remaining non-defaulting Underwriter shall be obligated severally to
purchase the Senior Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase on the Closing Date in the respective proportions
which the principal amount of Senior Notes set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule I hereto bears to the aggregate
principal amount of Senior Notes set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule I hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the Senior Notes on the Closing Date if the aggregate principal
amount of Senior Notes which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds one-eleventh of the aggregate
principal amount of the Senior Notes to be purchased on the Closing Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase in
total more than 110% of the principal amount of the Notes which it agreed to
purchase on the Closing Date pursuant to the terms of Section 2 hereof. If the
foregoing maximums are exceeded and the remaining Underwriter or other
underwriters satisfactory to the Underwriters and the Company do not elect to
purchase the Senior Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase, this Agreement shall terminate without liability
on the part of the non-defaulting Underwriters or the Company, except that the
Company will continue to be liable for the payment of expenses to the extent set
forth in Sections 8 and 12 hereof and except that the provisions of Sections 9
and 10 hereof shall not terminate and shall remain in effect. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
-----------
unless the context otherwise requires, any party not listed in Schedule I hereto
who, pursuant to this Section 7 purchases Senior Notes which a defaulting
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If other underwriters
are obligated or agree to purchase the Senior Notes of a defaulting Underwriter,
either the Underwriters or the Company may postpone the Closing Date for up to
seven full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement,
and the Company agrees to file promptly any amendment or supplement to the
Registration Statement or the Prospectus that would effect any such changes.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES.
If (a) notice shall have been given pursuant to Section 6 terminating this
Agreement or if this Agreement (other than this Section 8 or Section 12) does
not become effective pursuant to Section 6, (b) the Company shall fail to tender
the Senior Notes for delivery to the Underwriters for any reason permitted under
this Agreement or (c) the Underwriters shall decline to purchase the Senior
Notes for any reason permitted under this Agreement, the Company shall
15
reimburse the Underwriters for the fees and expenses of their counsel and for
such other reasonable out-of-pocket expenses as shall have been incurred by them
in connection with this Agreement and the proposed purchase of the Senior Notes,
and upon demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 7 solely by
reason of the default of one or more of the Underwriters, the Company shall not
be obligated to reimburse the defaulting Underwriters on account of those
expenses.
9. INDEMNIFICATION.
(a) The Company shall indemnify and hold harmless each Underwriter,
its affiliates, their respective officers, directors, employees, representatives
and agents, and each person, if any, who controls any Underwriter within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
the purposes of this Section 9 and Section 10 as the Underwriter), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of the Senior Notes), to
which that Underwriter may become subject, whether commenced or threatened,
under the Securities Act, the Exchange Act, any other federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and shall reimburse each
Underwriter for any legal or other expenses reasonably incurred by that
Underwriter in connection with investigating or preparing to defend or defending
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with any Underwriters' Information; provided, further, that the
indemnification contained in this paragraph (a) with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of the Senior Notes by such
Underwriter to any person if a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
Rules and Regulations, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus, provided that the Company has
delivered the Prospectus to the several Underwriters in requisite quantity on a
timely basis to permit such delivery or sending.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers who signed the Registration Statement,
directors, employees, representatives and agents, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act or the
Exchange Act (collectively referred to for the purposes of this Section 9 and
Section 10 as the Company), from and against any loss, claim,
16
damage or liability, joint or several, or any action in respect thereof, to
which the Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory authority
law or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with any Underwriters' Information, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend or
defending against or appearing as third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the extent it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 9. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or
17
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
The obligations of the Company and the Underwriters in this Section 9
and in Section 10 are in addition to any other liability which the Company or
the Underwriters, as the case may be, may otherwise have, including in respect
of any breaches of representations, warranties and agreements made herein by any
such party.
10. CONTRIBUTION.
If the indemnification provided for in Section 9 is unavailable or
insufficient to hold harmless an indemnified party under Section 9(a) or (b),
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Senior Notes 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
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Senior Notes purchased under this
Agreement (before deducting expenses) received by or on behalf of the Company,
on one hand, and the total discounts and commissions received by the
Underwriters with respect to the Senior Notes purchased under this Agreement, on
the other hand, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to the Company or
information supplied by the Company on the one hand or to any Underwriters'
Information on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or
18
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 10 were to be determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 10
shall be deemed to include, for purposes of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 10, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
discounts and commissions received by such Underwriter with respect to the
Senior Notes purchased by it under this Agreement exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 10 are
several in proportion to their respective underwriting obligations and not
joint.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company, and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 9 and 10 hereof, and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. The term
"successors" shall not include a purchaser of any of the Senior Notes from any
of the several Underwriters merely because of such purchase.
12. EXPENSES.
The Company agrees with the Underwriters to pay (a) the costs incident to
the authorization, issuance, sale, preparation and delivery of the Senior Notes
and any taxes payable in that respect; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto (including the filing fees of
the Commission); (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of printing, reproducing and distributing this
Agreement and any other underwriting and selling group documents by mail, telex
or other means of communications; (e) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of sale of the Senior Notes; (f) the fees and expenses of qualifying the
Senior Notes under the securities laws of the several jurisdictions, as provided
in Section 4 hereof, and of preparing, printing and distributing Blue Sky
Memoranda and Legal Investment Surveys (including related fees and expenses of
19
counsel to the Underwriters); (g) any fees charged by securities rating services
for rating the Senior Notes; (h) all fees and expenses of the Trustee and any
agent thereof; (i) all fees and expenses and all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement (including without limitation legal fees and expenses of counsel to
the Company (including special regulatory counsel to the Company and the fees
and expenses of KPMG); and (j) all expenses in connection with
any meetings with prospective investors (including, without limitation, slides);
provided that, except as otherwise provided in this Section 12 and in Section 8
hereof, the Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel, and the expenses of advertising any
offering of the Notes made by the Underwriters.
13. SURVIVAL.
The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Senior Notes and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any person controlling any of them.
14. NOTICES, ETC.
All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to:
c/o Chase Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
and
20
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to:
Xxxxxx International Industries, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X. Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: R. Xxxx Xxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
provided, however, that any notice to an Underwriter pursuant to Section 9(d)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request.
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made by the Underwriters on
behalf of the Underwriters.
15. DEFINITIONS OF CERTAIN TERMS.
For purposes of this Agreement, (a) "business day" means any day on which
the New York Stock Exchange, Inc. is open for trading and (b) "subsidiary"
means, with respect to any person, (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of
capital stock, entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such person or one or more of
the other Subsidiaries of that person (or a combination thereof) and (ii) any
partnership (a) the sole general partner or the managing general partner of
which is such person or a Subsidiary of such person or (b) the only general
partners of which are such person or one or more Subsidiaries of such person (or
any combination thereof).
21
16. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts together shall
constitute one and the same instrument.
18. HEADINGS.
The headings herein are inserted for convenience of reference only and are
not intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
If the foregoing is in accordance with your understanding of the agreement
between the Company and the several Underwriters, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
Xxxxxx International Industries, Incorporated
By: ______________________________
Name:
Title:
Accepted:
Chase Securities Inc.
NationsBanc Capital Markets, Inc.
Xxxxxx Brothers Inc.
Xxxxxxxxxxx Securities
Societe General Securities Corporation
By: CHASE SECURITIES INC.,
As Representative
By: _____________________________
Name:
Title:
Schedule I
to Underwriting Agreement
Aggregate Principal
-------------------
Underwriter Amount of Senior Notes
----------- ----------------------
Chase Securities Inc. $
NationsBanc Capital Markets, Inc.
Xxxxxx Brothers Inc.
Xxxxxxxxxx Securities
Societe Generale Securities Corporation
Total: $150,000,000
============
Schedule II
to Underwriting Agreement
SUBSIDIARIES
* Denotes a principal subsidiary
SCHEDULE A to
Underwriting Agreement
[FORM OF COMPANY COUNSEL'S OPINION]
________ __, 1997
Chase Securities Inc.,
as Representative of the several
Underwriters named in Schedule I
to the Underwriting Agreement
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Public Offering of $150,000,000 aggregate amount of
Senior Notes of Xxxxxx International Industries, Incorporated
Ladies and Gentlemen:
We have acted as counsel to Xxxxxx International Industries,
Incorporated, a Delaware corporation (the "Company"), in connection with the
issuance and sale by the Company of $150,000,000 aggregate principal amount of
its [______]% Senior Notes due 2007 (the "Senior Notes") pursuant to the
Underwriting Agreement, dated as of _________, 1997 (the "Underwriting
Agreement") among the Company, Chase Securities Inc., NationsBanc Capital
Markets Inc., Xxxxxx Brothers Inc., Xxxxxxxxxx Securities and Societe Generale
Securities Corporation (collectively, the "Underwriters"). This opinion is
being furnished to you pursuant to Section 5(c)(i) of the Underwriting
Agreement. Unless otherwise defined herein, capitalized terms used in this
opinion that are defined in the Underwriting Agreement are used herein as so
defined.
For purposes of this opinion (i) Domestic Subsidiaries shall mean
Harman Investment Company, a Delaware corporation, JBL Incorporated, a Delaware
corporation and, Xxxxxx Motive, Inc., a Delaware corporation and (ii)
Subsidiaries shall mean the Domestic Subsidiaries and all other direct and
indirect subsidiaries of the Company.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering the opinions
herein, we are expressing no opinion as to the laws of any jurisdiction other
than the United States, the District of Columbia and the States of Delaware and
New York.
Based upon the foregoing, and subject to the qualifications,
assumptions and limitations set forth herein, we are of the opinion that:
2
1. The Company is duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly qualified to
transact business as a foreign corporation and is in good standing in the
District of Columbia and the States of California and New York, and has full
corporate power and authority to own its properties and conduct its business as
described in the Registration Statement.
2. Each Domestic Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation,
as set forth opposite its name in Schedule A attached hereto, is duly qualified
to transact business as a foreign corporation and is in good standing in the
states set forth opposite its name on Schedule A attached hereto, and has full
corporate power and authority to own its properties and conduct its business as
described in the Registration Statement.
3. The authorized capital stock of the Company is as set forth under
the caption "Capitalization" in the Prospectus, and all of the outstanding
shares of capital stock of the Company that were issued in the Company's initial
public offering or at any time thereafter have been duly authorized and validly
issued and are fully paid and nonassessable.
4. All of the issued and outstanding shares of capital stock of each
Domestic Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable. To our knowledge, all of the issued and outstanding
shares of each Domestic Subsidiary beneficially owned by the Company, directly
or indirectly, are free and clear of all liens, encumbrances, security
interests, voting trusts or claims.
5. The Indenture complies as to form in all material respects with
the requirements of the Trust Indenture Act and the rules and regulations of the
Commission thereunder.
6. The statements made in the Prospectus under the caption
"Description of Notes," insofar as such statements purport to summarize certain
provisions of certain terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material respects.
7. The Company has full corporate authority to execute and deliver
the Underwriting Agreement, the Indenture and the Senior Notes and to perform
its obligations hereunder and thereunder; and all corporate action required to
be taken by the Company for the due and proper authorization, execution and
delivery of the Indenture and the Senior Notes and for the consummation of the
transactions contemplated by the Underwriting Agreement, the Indenture and the
Senior Notes have been duly and validly taken; and the Indenture constitutes a
valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by general
equitable principles, bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally.
8. The Senior Notes are in the form contemplated by the Indenture
and, upon the due authentication and delivery thereof by the Trustee pursuant to
the Indenture, will
3
be duly and validly issued and outstanding and will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, except as enforceability may be
limited by general equitable principles, bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally.
9. The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Senior Notes by the Company and the
consummation of the transactions contemplated thereby will not (or have not, as
the case may be) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under any indenture, mortgage,
deed of trust, loan agreement, or other agreement or instrument, that is
material to the Company and its Subsidiaries, taken as a whole, and now known to
us to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is subject; nor will such actions result (or
have resulted, as the case may be) in any violation of the provisions of the
charter or by-laws of the Company or any of its Subsidiaries or any statute or
any order, rule or regulation known to us of any court or governmental agency or
body having jurisdiction over the Company or any of its Subsidiaries or any of
their properties or assets; and except for (A) the registration of the Senior
Notes under the Securities Act, (B) the qualification of the Indenture under the
Trust Indenture Act and (C) such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase and
distribution of the Senior Notes by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for (x) the execution, delivery and
performance of the Underwriting Agreement, the Indenture or the Senior Notes by
the Company, and (y) the consummation of the transactions contemplated thereby.
10. Except as disclosed on Schedule B attached hereto, we are not
acting as counsel for the Company or any Subsidiary in any pending litigation in
which the Company or any Subsidiary is a party involving a loss contingency in
excess of $250,000, and we have not had referred to us by the Company or any
Subsidiary for legal advice or legal representation any litigation matter or
other matter that we believe might be deemed to be overtly threatened litigation
in which the Company or any Subsidiary may become a party involving a loss
contingency in excess of $250,000. The statement set forth in the preceding
sentence is limited to those matters that the Company or any Subsidiary has
referred to us for legal representation or about which the Company or any
Subsidiary has consulted us as counsel and with respect to which we have given
substantive attention subsequent to June 30, 1996. We have identified those
matters by making inquiry of lawyers currently in our firm who, according to our
records, have been engaged in legal services on behalf of the Company or any
Subsidiary during that period, and by examining certain current records that we
maintain for our internal operations. In that process, we have not undertaken
any independent review of documents or records that are in our possession
concerning the Company or any Subsidiary.
11. The Company is not an investment company as that term is defined
in the Investment Company Act of 1940, as amended.
4
We are of the opinion that the Registration Statement and the
Prospectus (except for the operating statistics, financial statements, financial
schedules and other financial data included therein and except for the
information referred to under the caption "Experts" as having been included in
the Registration Statement and the Prospectus on the authority of KPMG Peat
Marwick LLP as experts, as to which we express no view) comply as to form in all
material respects with the Securities Act and the Rules and Regulations. We do
not know of any contracts or other documents of a character required to be filed
as exhibits to the Registration Statement that are not filed as required.
We have not independently verified and are not passing upon, and do
not assume any responsibility for, the accuracy, completeness or fairness
(except as set forth in the preceding paragraph) of the information contained in
the Registration Statement and the Prospectus. We have participated in the
preparation of the Registration Statement and the Prospectus. From time to time
we have had discussions with officers, directors and employees of the Company,
KPMG Peat Marwick LLP, the independent certified public accountants who examined
the consolidated financial statements of the Company and its Subsidiaries
incorporated by reference in the Registration Statement and the Prospectus, and
representatives of the Underwriters concerning the information contained in the
Registration Statement and the Prospectus and proposed responses to various
items in Form S-3 under the Securities Act. Based thereon, no facts have come
to our attention that cause us to believe that the Registration Statement
(except for operating statistics, financial statements, financial schedules and
other financial data included therein and except for the information referred to
under the caption "Experts" as having been included in the Registration
Statement and the Prospectus on the authority of KPMG Peat Marwick LLP as
experts, as to which we express no view), at the time it became effective and at
the date hereof, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus (except for
the operating statistics, financial statements, financial schedules and other
financial data included therein and except for the information referred to under
the caption "Experts" as having been included in the Registration Statement and
the Prospectus on the authority of KPMG Peat Marwick LLP as experts, as to which
we express no view) at the time it became effective and at the date hereof
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The opinions set forth herein are subject to the following
assumptions, qualifications and limitation:
a. We have assumed, with your permission and without independent
investigation: (i) that the signatures on all documents examined by
us are genuine and that where any such signature purports to have been
made in a corporate, governmental, fiduciary or other capacity, the
person who affixed such signature to such documents had authority to
do so (other than if such person is an officer of the Company or its
Subsidiaries), (ii) the authenticity of documents submitted to us as
originals, and the conformity to authentic original documents of all
documents submitted to us as certified, conformed or
4
photostatic copies, and (iii) the correctness of public files, records
and certificates of, or furnished by, governmental or regulatory
agencies or authorities.
b. We have assumed, with your permission and without independent
investigation, that the Underwriting Agreement has been duly
authorized, executed and delivered by each of the parties thereto
(other than the Company) and constitutes the valid and binding
obligation of such parties, enforceable against such parties in
accordance with its terms.
c. In rendering the opinions set forth in paragraph 1 as to the good
standing of the Company and each of the Domestic Subsidiaries under
the laws of the jurisdiction of its incorporation or formation and the
good standing of the Company and the Domestic Subsidiaries as foreign
corporations in the specific jurisdictions, we have relied exclusively
on certificates of public officials, all of which have been furnished
to you.
d. In rendering the opinions set forth in paragraph 4, as to the matters
set forth in the certificates of officers of the Company and its
Domestic Subsidiaries, copies of which have been furnished to you
previously today or are attached hereto, we have assumed the
correctness of, and are relying solely upon, the statements set forth
in such certificates without making any independent investigation or
inquiry whatsoever with respect to the accuracy of such statements,
other than a review of the relevant minute books and stock transfer
records (excluding the stock certificates for the Domestic
Subsidiaries, which were not available for our review).
e. In rendering the opinion set forth in paragraph 4 hereof with respect
to the ownership of shares of capital stock of each Domestic
Subsidiary, we have relied exclusively upon a review of the relevant
stock transfer records of each of the Domestic Subsidiaries which
records have been certified to us as correct by an officer of each
such Domestic Subsidiary, without making any independent investigation
with respect to the completeness and accuracy of such records.
f. In rendering the opinion set forth in paragraph 9 hereof as to
material agreements and other material instruments of the Company and
its Subsidiaries, we have assumed the completeness and accuracy of,
and are relying solely upon, the statements in the certificates of
officers of the Company and the Subsidiaries, copies of which have
been furnished to you, identifying all of the material agreements and
other material instruments to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary is bound, without
making any independent investigation with respect to the completeness
and accuracy of the statements contained therein and, based solely
upon our review of the reports filed by the Company prior to the date
hereof pursuant to the Exchange Act, we have no knowledge of any other
material agreements or
6
material instruments to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary is bound.
g. As to matters of fact, we have relied solely upon certificates of
executive officers of the Company, copies of which have been delivered
to you.
h. We express no opinion as to the enforceability of (i) exculpation and
indemnity clauses in the Underwriting Agreement to the extent that
such clauses are determined to be against public policy of the State
of New York or the United States of America and (ii) clauses in the
Underwriting Agreement waiving or purporting to waive rights or
defenses of the Company or its Subsidiaries that under applicable law
that may not be waived.
This opinion is furnished by us, as counsel for the Company, to you
solely for your benefit and solely with respect to the purchase of Senior Notes
from the Company by you, upon the understanding that we are not hereby assuming
any professional responsibility to any other person whatsoever.
Very truly yours,
Xxxxx, Day, Xxxxxx & Xxxxx
SCHEDULE A
to Company Counsel Opinion
Name of Subsidiary Jurisdiction of Incorporation
SCHEDULE B
to Company Counsel Opinion
MATERIAL LITIGATION
EXHIBIT B to
Underwriting Agreement
[FORM OF OPINION OF XXXXX XXXXXXXX]
________ __, 1997
Chase Securities Inc.,
as Representative of the several
Underwriters named in Schedule I
to the Underwriting Agreement
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Public Offering of $150,000,000 aggregate amount of
Senior Notes of Xxxxxx International Industries, Incorporated
-------------------------------------------------------------
Ladies and Gentlemen:
I am Vice President, Chief Financial Officer and Assistant Secretary
of Xxxxxx International Industries, Incorporated, a Delaware corporation (the
"Company"), and I am admitted to the Bar of the State of California. I have
participated in advising the Company with respect to the issuance and sale by
the Company $150,000,000 aggregate principal amount of its [ ]% Senior Notes
due 2007 (the "Senior Notes") pursuant to the Underwriting Agreement, dated as
of __________, 1997 (the "Underwriting Agreement") among the Company, Chase
Securities Inc., NationsBanc Capital Markets Inc., Xxxxxx Brothers Inc.,
Xxxxxxxxxx Securities and Societe Generale Securities Corporation (collectively,
the "Underwriters") and I am furnishing this opinion to you pursuant to Section
5(d)(ii) of the Underwriting Agreement. Unless otherwise defined herein
capitalized terms used herein shall have the meanings ascribed to them in the
Underwriting Agreement.
Subject to the qualifications set forth herein, I am of the opinion
that:
1. Neither the Company nor any subsidiary is in violation of its
certificate of incorporation or bylaws, or other organizational documents
or to the best of such counsel's knowledge, in breach of or default with
respect to any provision of any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument known to such
counsel to which the Company or any such subsidiary is a party or by which
it or any of its properties may be bound or affected, except where such
default would not materially adversely affect the Company and its
subsidiaries; and, to the best of such counsel's knowledge, the Company and
its subsidiaries are in compliance with all judgments, decrees and orders
of any court or jurisdiction to which they are subject, except where
noncompliance would not materially adversely affect the Company and its
subsidiaries taken as a whole;
2
2. To the best of such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to include securities owned or
to be owned by such person in the securities registered pursuant to the
Registration Statement; and such counsel does not know of any contracts or
documents required to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus which are not so
filed or described as required, and such contracts and documents as are
summarized in the Registration Statement or the Prospectus are fairly
summarized in all material respects;
I have participated in the preparation of the Registration and the
Prospectus. From time to time I have had discussions with officers, directors
and employees of the Company, KPMG Peat Marwick LLP, the independent certified
public accountants who examined certain of the consolidated financial statements
of the Company and its subsidiaries included in the Registration Statement and
the Prospectus, and the Underwriters concerning the information contained in the
Registration and the Prospectus and proposed responses to various items in the
Form S-3 under the Act. I have not independently verified and am not passing
upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of the information contained in the Registration Statement and the
Prospectus.
Based thereon, no facts have come to my attention that cause me to
believe that the Registration Statement (except for the operating statistics,
financial statements, financial schedules and other financial data included
therein and except for the information referred to under the caption "Experts"
as having been included in the Registration Statement and the Prospectus on the
authority of KPMG Peat Marwick LLP, as experts, as to which I express no
opinion), at the time it became effective and at the date hereof, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (except for the operating statistics,
financial statements, financial schedules and other financial data included
therein and except for the information referred to under the caption "Experts"
as having been included in the Registration Statement and the Prospectus on the
authority of KPMG Peat Marwick LLP, as experts, as to which I express no
opinion) at such times contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein, in light of the
circumstances under which they were made, not misleading. References to the
Prospectus in this letter include any supplements thereto at the Closing Date.
This opinion is furnished by me, as Vice President, Chief Financial
Officer and Assistant Secretary of the Company, to you solely for your benefit
and solely with respect to the purchase by you of the Senior Notes referred to
above, upon the understanding that we are not hereby assuming any professional
responsibility to any other person whatsoever.
Very truly yours,
