EXHIBIT 1.1
$ OF DEBT SECURITIES
FORT XXXXX CORPORATION
FORM OF UNDERWRITING AGREEMENT
FORT XXXXX CORPORATION
FORM OF UNDERWRITING AGREEMENT
New York, New York
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Fort Xxxxx Corporation (formerly Xxxxx River Corporation of Virginia), a
Virginia corporation (the "Company"), proposes to sell to the underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the "Securities"), to be issued
under an indenture dated as of November 1, 1991, between the Company and The
Bank of New York, as trustee (the "Trustee"), as amended and supplemented by
the First Supplemental Indenture, dated as of September 19, 1997 (as further
amended or supplemented from time to time, the "Indenture"). The term
"Indenture", as used herein, includes the Officer's Certificate (as defined in
the Indenture) establishing the forms and terms of 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", as used
herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as specified
in Schedule I hereto), paragraph (i) below is applicable and, if the
offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (file number 333- ) on such Form, including a basic
prospectus, for registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more amendments
thereto, and may have used a Preliminary Final Prospectus, each of which
has previously been furnished to you. The registration statement, as so
amended, and any Rule 462(b) Registration Statement has become effective
and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under
the Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission. The offering of the Securities is a Delayed Offering and,
although the Basic Prospectus may not include all the information with
respect to the Securities and the offering thereof required by the Act
and the rules and regulations of the Commission thereunder to be included
in the Final Prospectus, the Basic Prospectus includes all such material
information required by the Act and the rules and regulations of the
Commission thereunder to be included therein as of the Effective Date;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") of the Trustee or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation
of the Registration Statement or the Final Prospectus (or any supplement
thereto). The Company will next file with the Commission pursuant to
Rules 415 and 424(b)(2) or (5) a final supplement to the form of
prospectus included in Registration Statement No. 333- relating to
the Securities and the offering thereof. As filed, such final prospectus
supplement shall include all required material information with respect
to the Securities and the offering thereof.
(ii) The Company meets the requirements for the use of Form S-3 under
the Act and has filed with the Commission a registration statement (file
number 333- ) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been furnished
to you. The
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Company will next file with the Commission either (x) a final prospectus
supplement relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of the registration
statement, an amendment to such registration statement, including the
form of final prospectus supplement. In the case of clause (x), the
Company has included in such registration statement, as amended at the
Effective Date, all material information (other than Rule 430A
Information) required by the Act and the rules and regulations of the
Commission thereunder to be included in the Final Prospectus with respect
to the Securities and the offering thereof; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation
of the Registration Statement or the Final Prospectus (or any supplement
thereto). As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule 430A
Information, together with all other such required material information,
with respect to the Securities and the offering thereof.
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the Trust Indenture Act, and the
respective rules and regulations of the Commission thereunder; on the
Effective Date and on the Closing Date, the Registration Statement did not
or 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; on the Effective Date and on
the Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules of the
Commission thereunder; and, on the Effective Date, the Final 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 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 the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Registration Statement or the Final Prospectus (or any
supplement thereto). Each Preliminary Final Prospectus and the Final
Prospectus delivered to the Underwriters for use in connection with the
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to the Commission's Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX") except to the extent
permitted by Regulation S-T.
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date that
Registration Statement No. 333- , any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statement referred to
below became or become effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties hereto.
"Basic Prospectus" shall mean the prospectus referred to in paragraph (a)
above contained in Registration Statement No. 333- at its Effective
Date. "Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities, including the
Basic Prospectus, included in the Registration Statement at the Effective
Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the Execution Time (or, if
not effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement as so amended. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulations of the Commission under
the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be
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omitted from the Registration Statement when it becomes effective pursuant
to Rule 430A. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange
Act on or before any Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act on or before any Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after any Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. Any Registration Statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. For purposes of this
Agreement, all references to the Registration Statement, any Preliminary
Final Prospectus, the Final Prospectus or any amendment or supplement to
the foregoing shall be deemed to include the copy filed with the Commission
pursuant to XXXXX. A "Non- Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after the effective date
of a registration statement, with the result that, pursuant to Rules 415
and 430A, all information (other than Rule 430A Information) with respect
to the securities so offered is required under the rules and regulations of
the Commission under the Act to be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a Non-
Delayed Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
(d) Fort Xxxxx Operating Company (formerly Xxxxx River Paper Company,
Inc.) ("FJOC"), Fort Xxxxx Fiber Company ("FJFC") and Fort Xxxxx N.V.
(together with FJOC and FJFC, the "Significant Subsidiaries") are the only
directly-owned "significant subsidiaries" of the Company (as such term is
defined in Regulation S-X).
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"),
and (ii) there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise.
(f) This Agreement has been duly authorized, executed and delivered by
the Company. The Indenture has been duly authorized by the Company and duly
qualified under the Trust Indenture Act and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and is subject to general principles of equity (whether
considered in a proceeding in equity or at law).
(g) The Securities have been duly authorized and, at the Closing Date,
will have been duly executed by the Company and, when authenticated, issued
and delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and subject to general
principles of equity (whether considered in a proceeding in equity or at
law), and will be in the form contemplated by, and entitled to the benefits
of, the Indenture. The Securities and the Indenture will conform in all
material respects to the respective statements relating thereto contained
in the Basic Prospectus and the Final Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as
the case may be, as exhibits to the Registration Statement.
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(h) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture and the Securities have been
duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or Fort
Xxxxx Operating Company (formerly Xxxxx River Paper Company, Inc.)
("FJOC"), Fort Xxxxx Fiber Company ("FJFC"), or Fort Xxxxx N.V. (the
"Significant Subsidiaries") pursuant to, any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of the Significant Subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any Significant Subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company or any Significant Subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign, known
to the Company having jurisdiction over the Company or any Significant
Subsidiary or any of their respective assets, properties or operations
which would result in a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(i) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company, except such as
have been already obtained, and except for such that would not reasonably
be expected to have a Material Adverse Effect or as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws and
except for the qualification of the Indenture under the Trust Indenture
Act.
(j) Except as disclosed in the Registration Statement (including the
documents incorporated therein by reference), or as would not, individually
or in the aggregate, have a Material Adverse Effect:
(i) the Company and the Significant Subsidiaries (A) are in compliance
with all, and are not subject to any asserted liability or, to the
Company's knowledge, any liability, in each case with respect to any,
applicable Environmental Laws (as defined below), (B) hold or have
applied for all Environmental Permits (as defined below) and (C) are in
compliance with their respective Environmental Permits;
(ii) neither the Company nor any Significant Subsidiary has received
any written notice, demand, letter, claim or request for information
alleging that the Company or any of its subsidiaries may be in violation
of, or liable under, any Environmental Law;
(iii) neither the Company nor any Significant Subsidiary (A) has
entered into or agreed to any consent decree or order or is subject to
any judgment, decree or judicial order relating to compliance with
Environmental Laws, Environmental Permits or the investigation, sampling,
monitoring, treatment, remediation, removal or cleanup of Hazardous
Materials (as defined below) and, to the knowledge of the Company, no
investigation, litigation or other proceeding is pending or threatened in
writing with respect thereto, or (B) is an indemnitor in connection with
any threatened or asserted claim by any third-party indemnitee for any
liability under any Environmental Law or relating to any Hazardous
Materials; and
(iv) none of the real property owned or leased by the Company or any
Significant Subsidiary is listed or, to the knowledge of the Company,
proposed for listing on the "National Priorities List" under CERCLA, as
updated through the date hereof, or any similar state or foreign list of
sites requiring investigation or cleanup.
For purposes of this Agreement:
"CERCLA" means Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended as of the date hereof.
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"Environmental Laws" means any federal, state, local or foreign statute,
law, ordinance, regulation, rule, code, treaty, writ or order and any
enforceable judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decrees, judgment, stipulation,
injunction, permit, authorization, policy, opinion, or agency requirement, in
each case having the force and effect of law, relating to the pollution,
protection, investigation or restoration of the environment, health and safety
or natural resources, including, without limitation, those relating to the use,
handling, presence, transportation, treatment, storage, disposal, release,
threatened release or discharge of Hazardous Materials or noise, odor,
wetlands, pollution, contamination or any injury or threat of injury to persons
or property.
"Environmental Permits" means any permit, approval, identification number,
license and other authorization required under any applicable Environmental
Law.
"Hazardous Materials" means (a) any petroleum, petroleum by-products or
breakdown products, radioactive materials, asbestos- containing materials or
polychlorinated biphenyls or (b) any chemical, material or other substance
defined or regulated as toxic or hazardous or as a pollutant or contaminant or
waste under any applicable Environmental Law.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amounts of each series of the Securities set
forth opposite such Underwriter's name in Schedule II hereto, plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof, except
that, if Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts of Securities
to be purchased by the Underwriters shall be as set forth in Schedule II hereto
less the respective amounts of Contract Securities determined as provided
below. Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Securities to be purchased pursuant
to Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in Schedule II hereto, except
to the extent that you determine that such reduction shall be otherwise than in
such proportion and so advise the Company in writing; provided, however, that
the total principal amount of Securities to be purchased by all Underwriters
shall be the aggregate principal amount set forth in Schedule II hereto less
the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made 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 8 hereof (such date
and time of delivery and payment for the Underwriters' Securities being herein
called the "Closing Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to the Company by wire transfer
of immediately available funds to a bank account designated by the Company.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably request at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
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The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to qualify the Indenture under
the Trust Indenture Act and to cause the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, to become
effective. Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus (other than (i) subject to Section
4(f), any prospectus supplement relating to the offering of other
securities registered under the Registration Statement and (ii) other than
any document required to be filed under the Exchange Act that upon filing
is deemed to be incorporated by reference therein, except for such
documents required to be filed during the period from the Execution Time
through the Closing Date) unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly completed,
and any supplement thereto and the Preliminary Final Prospectus to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence reasonably
satisfactory to the Representatives of such timely filing. The Company will
advise the Representatives promptly after it shall receive notice or obtain
knowledge thereof (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, including any Post-
Effective Amendment, shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, and any Preliminary Final
Prospectus shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement, including any Rule 462(b)
Registration Statement, shall have been filed or become effective, (iv) of
any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules and regulations of
the Commission thereunder, the Company promptly will prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or effect such compliance.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earning statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, five copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. Copies of the
Registration Statement and each amendment thereto, any Preliminary Final
Prospectus and the Final Prospectus furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(e) The Company will use its best efforts to qualify the Securities for
sale under the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect so long
as required for the distribution of the Securities, except that the Company
shall not be required in connection therewith to qualify as a foreign
corporation, to execute a general consent to service of process in any
state or to otherwise subject itself to taxation (other than stock transfer
taxes) in connection with any such qualification, and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors.
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(f) Except to the extent specified on Schedule I hereto, until the
business date set forth on Schedule I hereto, the Company will not, without
the consent of the Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of,
any debt securities issued or guaranteed by the Company (other than the
Securities or other securities issued in the ordinary course of business).
5. Conditions to the Obligations of the Underwriters. The obligations of
the underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and Closing Date, 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 the following additional conditions:
(a) The Registration Statement has become effective and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened; if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b).
(b) The Company shall have furnished to the Representatives the opinion
of McGuire, Woods, Battle & Xxxxxx LLP, counsel for the Company, dated the
Closing Date, to the effect that:
(i) The Company has been duly organized and is validly existing and in
good standing under the laws of the Commonwealth of Virginia; each of the
Significant Subsidiaries has been duly organized and is validly existing
and, if applicable, in good standing under the laws of the jurisdiction
of its incorporation; the Company and each Significant Subsidiary has
corporate power and authority to conduct its business as described in the
Final Prospectus; the Company and each Significant Subsidiary is, if
applicable, duly qualified to do business and is, if applicable, in good
standing in each jurisdiction in which it owns or leases a material
amount of real property;
(ii) The authorized capital stock of the Company is as set forth in
the Final Prospectus; and the Securities conform to the description
thereof contained in the Final Prospectus;
(iii) The Indenture and the Securities have been duly authorized; the
Indenture has been duly qualified under the Trust Indenture Act; the
Indenture has been executed and delivered by the Company and constitutes
a valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Securities have been duly executed, issued and delivered by the Company
as provided in the Company's Articles of Incorporation, as amended to
date, and in the Indenture and when the Securities have been duly
authenticated by the Trustee as provided for in the Indenture and
delivered and paid for by the Underwriters pursuant to this Agreement, in
the case of Underwriters Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any Contract
Securities, the Securities will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iv) All of the outstanding shares of capital stock of the Significant
Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and are owned beneficially, directly or indirectly,
(except as otherwise stated in the Final Prospectus) by the Company
subject to no perfected mortgage, pledge, lien, encumbrance, charge or
adverse claim and, to the knowledge of such counsel, any other mortgage,
pledge, lien, encumbrance, charge or adverse claim;
(v) Such counsel has been advised by the staff of the Commission that
the Registration Statement has become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary Final 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); and to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
such counsel, threatened under the Act;
(vi) The Registration Statement, including any Rule 462(b)
Registration Statement, and the Final Prospectus, and any amendment or
supplement thereto (other than the financial statements and other
financial data therein, as to which such counsel need express no
opinion), comply as to form in all material respects with the
requirements
8
of the Act, the rules and regulations of the Commission thereunder and
the Trust Indenture Act and the rules of the Commission thereunder;
(vii) The descriptions in the Registration Statement and the Final
Prospectus of statutes, legal and governmental proceedings, contracts and
other documents are accurate in all material respects and fairly present
the information required to be shown; and such counsel does not know of
any statutes or legal or governmental proceedings required to be
described in the Final Prospectus that are not described as required, or
of any contracts or documents of a character required to be described in
the Registration Statement or Final Prospectus (or required to be filed
under the Exchange Act if upon such filing they would be incorporated, in
whole or in part, by reference therein) or to be filed as exhibits to the
Registration Statement that are not described and filed as required; and
(viii) This Agreement, any Delayed Delivery Contracts and the
Indenture have been duly authorized, executed and delivered by the
Company; the Company's execution, delivery and performance of this
Agreement, any Delayed Delivery Contracts, the Indenture and the
Securities, or the consummation of the transactions herein contemplated
and the Company's compliance with its obligations under this Agreement,
the Indenture, and the Securities, will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any agreement or instrument known to such counsel to
which the Company or any Significant Subsidiary is a party or by which it
is bound or to which any of the property of the Company or any
Significant Subsidiary is subject, the Company's or any Significant
Subsidiary's Articles of Incorporation, as amended to date, or by-laws,
or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
Significant Subsidiary or any of their respective properties; and no
consent, approval, authorization or order of, or filing with, any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement or in any Delayed Delivery
Contract, except such as have been obtained under the Act or the Trust
Indenture Act and such as may be required under state securities laws in
connection with the purchase and distribution of such Securities by the
Underwriters; provided that no opinion is called for with respect to any
such consent, approval, authorization or order required to be obtained
under the Act and regulations thereunder or the Trust Indenture Act that
have been obtained or as may be required under state securities laws or
Blue Sky Laws of the various states. The form of the Indenture filed as
an exhibit to the Registration Statement conforms to the descriptions
thereof contained in the Prospectus in all material respects.
Such counsel shall also state that: they have no reason to believe that at the
Effective Date the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Final Prospectus at the time the Final Prospectus is issued or at the Closing
Date includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the documents
from which information is incorporated by reference in the Final Prospectus,
when they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of the
Act and of the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; it being understood that such counsel need express
no opinion as to the financial statements or other financial information
included in any of the documents mentioned in this sentence.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives shall have received from Shearman & Sterling,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and such counsel
shall have received such papers and information as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman, Chief Executive Officer, an
Executive Vice President, a Senior Vice President or a Vice President and
by the principal financial or accounting officer or treasurer, dated the
Closing Date, to the effect that, to the best of their knowledge, based
upon reasonable investigation:
(i) the representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the Closing Date,
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
9
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
instituted or is threatened, by the Commission; and
(iii) since the date of the most recent financial statements included
in the Final Prospectus (exclusive of any supplement thereto), there has
been no material adverse change or development involving a prospective
material adverse change in the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Execution Time and on the Closing Date, Coopers & Xxxxxxx
L.L.P. shall have furnished to the Representatives a letter or letters,
dated as of the Execution Time and the Closing Date, in form and substance
satisfactory to the Representatives, which confirms that they are
independent certified public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and regulations
thereunder and containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and Final Prospectus.
(f) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purpose of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(g) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
fax confirmed in writing.
6. Expenses. (a) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto (including any post-effective amendment thereto), (ii) the preparation,
printing and delivery to the Underwriters of this Agreement, any Agreement
among Underwriters to which the Company is a party, the Indenture and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 4(e) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each Preliminary Final Prospectus and of the Final
Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Securities, (viii) any
fees payable in connection with the rating of the Securities, and (ix) the
filing fees incident to, and the reasonable fees and disbursements of counsel
to the Underwriters in connection with the review by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities.
(b) If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination pursuant to
Section 9 hereof or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
as follows: (i) against any and all losses, claims,
10
damages or liabilities, joint or several, to which they or any of them may
become subject under the 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 (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof (including any
post-effective amendment), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or arise out of any
untrue statement or alleged untrue statement of a material fact included in any
Preliminary Final Prospectus or the Final Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; (ii) against
any and all loss, liability, claim, damage and expense whatsoever, as
reasonably incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement or
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that any such settlement is
effected with the written consent of the Company in the Company's sole
discretion, and; (iii) agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof; and provided
further that the Company shall not be liable in any such case to any such
Underwriter to the extent that any such loss, claim, damage or liability
results from the fact that such Underwriter sold Securities to a person to whom
there was not given or sent, at or prior to the written confirmation of such
sale, a copy of the Final Prospectus, as then amended or supplemented
(excluding the documents incorporated by reference therein) if the Company has
previously furnished copies thereof to such Underwriter and has otherwise
complied with Section 4(b), and if the Company has sustained the burden of
proof that, with respect to statements or omissions, other than those made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the documents
referred to in the foregoing indemnity, such Final Prospectus, or any amendment
or supplement thereto (including the documents incorporated by reference
therein) corrected the untrue statement or alleged untrue statement or omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or alleged omission giving rise to such loss,
claim, damage or liability. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with respect to untrue statements or omissions, or
alleged untrue statements of a material fact required to be stated therein
or necessary to make the statements therein not misleading or omissions
made in the documents referred to in the foregoing indemnity in reliance on
and in conformity with written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for use in connection with the preparation of
the documents referred to in the foregoing indemnity, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof, but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
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) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification and reimbursement obligations provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for
11
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonable satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including not more than two
local counsels), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize in writing the indemnified party to
employ separate counsel at the expense of the indemnifying party. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement. An indemnifying
party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does
not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, 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) (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 no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. 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,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or any other method of allocation which does not take account of
the equitable considerations referred to above. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder (other than under this
paragraph (d)) or otherwise. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls an Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act and each director, officer, employee and agent of an Underwriter shall
have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act, each officer of the Company who shall
have signed the Registration
12
Statement 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 paragraph (d).
The Underwriters' respective obligations to contribute pursuant to this
Section are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule II hereto and not joint.
8. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Securities, and if such nondefaulting Underwriters do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if after the Execution
Time and prior to such time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is
given in the Final Prospectus, a material adverse change or any development
involving a prospective material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Representatives, impracticable to
market the Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New
York Stock Exchange or in the NASDAQ National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either federal or New York authorities.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
6 and 7 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telecopied and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, telefax
number: (000) 000-0000, attention of the Senior Vice President and General
Counsel.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
In all dealings with the Company under this Agreement, you shall act on
behalf of each of the several Underwriters, and any action under this Agreement
taken by you or by any one of you designated in Schedule II hereto will be
binding upon all the Underwriters.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
13
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters. Alternatively, the execution of
this Agreement by the Company and its acceptance by or on behalf of the
Underwriters may be evidenced by an exchange of telecopied or other written
communications.
Very truly yours,
Fort Xxxxx Corporation
By:
----------------------------------
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
The Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto.
By:
By:
----------------------------
Authorized Signatory
For themselves and as
Representative of the other
Underwriters, named in
Schedule II to the foregoing Agreement.
14
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No. 33-
Representatives(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Interest:
Purchase price (include accrued interest, if any):
(i) to Underwriters:
(ii) to Public:
Maturity Date:
Sinking fund provisions:
Redemption provisions:
Defeasance provisions:
Other provisions:
Closing Date, Time and Location:
(i) Office for Checking Securities:
(ii) Office for Payment of Securities:
(iii) Date and Time of Closing: , at EST at , or such
other date, time or location as the parties may agree in writing
Type of offering:
Delayed Delivery arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 4(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of Section 4(f): The parties agree that the term debt securities
does not include, among other items, bank loans, commercial paper, bid notes,
money market notes, any debt securities with a maturity of less than two years,
leveraged sale leasebacks and letter of credit arrangements
15
SCHEDULE II
Principal
Amount of
[Debt Securities]
Underwriters to be Purchased
-------------- ------------------
Total Underwriters ( )
16
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Fort Xxxxx Corporation (the
"Company"), and the Company agrees to sell to the undersigned on , 19
(the "Delivery Date"), $ principal amount of the Company's (the
"Securities") offered by the Company's Prospectus dated , 19 , and
related Prospectus Supplement dated , 19 , receipt of a copy of which is
hereby acknowledged, at a purchase price of % of the principal amount
thereof, plus [accured interest] [amortization of original issue discount], if
any, thereon from , 19 , to the date of payment and delivery, and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, 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 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.
17
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:
Fort Xxxxx Corporation
By----------------------------
(Authorized Signature)
18
