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Exhibit 1
XXXXXXXX BRANDS INTERNATIONAL, INC.
("COMPANY")
$200,000,000
10% Senior Notes due 2009
TERMS AGREEMENT
June 15, 1999
XXXXXXXX BRANDS INTERNATIONAL, INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Senior Vice President and Chief Financial Officer
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement Basic Provisions
relating to the Debt Securities of Xxxxxxxx Brands International, Inc. dated
June 15, 1999 attached hereto ("Underwriting Agreement"), the following
securities ("Securities") on the following terms:
Debt Securities
Title: 10% Senior Notes due 2009
Rank: Senior Debt Securities
Principal Amount Offered: $200,000,000
Interest Rate: 10% per annum from June 22, 1999, payable semiannually on June 15
and December 15, commencing December 15, 1999
Maturity: June 15, 2009
Form and Denomination: The Securities are to be issued in the form of one global
security registered in the name of The Depositary Trust Company or its nominee
Optional Redemption: As described in the Prospectus Supplement
Tax Redemption: As described in the Prospectus Supplement
Sinking Fund: None
Covenants and Other Terms: Consolidation, Merger and Sale of Assets; Limitation
on Indebtedness; Limitation on Liens; Limitation on Sale and Leaseback
Transactions; Limitation on Restricted Payments; Transactions with Related
Persons; Purchase of Notes Upon a Change of Control Triggering Event; in each
case as described in the Prospectus Supplement and the accompanying Prospectus
Indenture: Indenture, dated as of February 15, 1994, between the Company and the
Fifth Third Bank, as trustee, as supplemented by the First Supplemental
Indenture, dated as of June 15, 1994 and the Second Supplemental Indenture dated
as of July 15, 1996.
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Delayed Delivery Contracts: not authorized
Delivery Date: June 22, 1999
Maximum aggregate principal amount: $275,000,000
Underwriting Discount: 2.625%
Purchase Price to Underwriters: 97.375%, plus accrued interest, if any, from
June 22, 1999 to the Delivery Date.
Public Offering Price: 100.000%, plus accrued interest, if any, from June 22,
1999 to the Delivery Date.
Names and Addresses of Underwriters:
Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
ING Baring Xxxxxx Xxxx LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Prudential Securities Incorporated
One New York Plaza
18th Floor
New York, NY 10292
Warburg Dillon Read LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Statements provided to the Company by or on behalf of the Underwriters:
the public offering price and the last paragraph of the cover
page with respect to the delivery of the securities, and under
the captions "Plan of Distribution" and "Underwriting," (i)
the list of Underwriters and their respective participation in
the sale of the Securities, (ii) the paragraph related to the
offering by selling agents, (iii) the paragraph related to
concessions and reallowances, (iv) the paragraphs related to
stabilization, over-allotment, syndicate covering transactions
and penalty bids, (v) the
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paragraph relating to compliance with NASD Rule 2710(c)(8) and
(vi) the paragraph relating to delivery and settlement of the
Underwritten Securities, in the Prospectus.
The respective principal amounts of the Debt Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The underwriters, severally but not jointly, represent and
warrant to the Company that (1) they have not offered or sold, and will not
offer or sell any notes in the United Kingdom by means of any document other
than to persons whose ordinary business is to buy, hold, manage or dispose of
investments, whether as principal or agent, for purposes of their businesses or
otherwise in circumstances that do not constitute an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (2) they have complied and will comply with all applicable provisions of
the Financial Services Act of 1986 of the United Kingdom with respect to
anything done by them in relation to the Underwritten Securities in, from or
otherwise involving the United Kingdom, and (3) they have only issued or passed
on and will only issue or pass on, to any person in the United Kingdom, any
document received by them in connection with the issue of the Underwritten
Securities, if that person is of a kind described in Article ii(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom the document may otherwise lawfully be issued or passed
on.
The Closing will take place at 9:00 A.M., New York City time,
on June 22, 1999 at the offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx,
Xxx Xxxx, XX 00000.
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Please signify your acceptance by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
ING Baring Xxxxxx Xxxx LLC
X.X. Xxxxxx Securities Inc.
Prudential Securities Incorporated
Warburg Dillon Read LLC
by: Xxxxxx Brothers Inc.
by: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
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SCHEDULE A
$200,000,000
10% Senior Notes due 2009
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
Xxxxxx Brothers Inc. $110,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. $ 50,000,000
BancBoston Xxxxxxxxx Xxxxxxxx Inc. $ 8,000,000
ING Baring Xxxxxx Xxxx LLC $ 8,000,000
X. X. Xxxxxx Securities Inc. $ 8,000,000
Prudential Securities Incorporated $ 8,000,000
Warburg Dillon Read LLC $ 8,000,000
------------
Total $200,000,000
============
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To: Xxxxxx Brothers Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
ING Baring Xxxxxx Xxxx LLC
X.X. Xxxxxx Securities Inc.
Prudential Securities Incorporated
Warburg Dillon Read LLC
c/x Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
We accept the offer contained in your letter, dated June 15,
1999, relating to shares of our $200,000,000 10% Senior Notes due 2009 (the
"Terms Agreement"). We also confirm that the representations and warranties of
the undersigned in the Underwriting Agreement Basic Provisions dated June 15,
1999, to be filed as an exhibit to the undersigned's Current Report on Form 8-K
(together with the Terms Agreement, the "Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been (or in the case of a form of prospectus filed pursuant to Rule
424(b)(1) or (4) there will be, as of the date of such prospectus) no material
adverse change in the financial position or results of operations of the
undersigned and its subsidiaries except as set forth in or contemplated by the
Prospectus.
Very truly yours,
XXXXXXXX BRANDS INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
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XXXXXXXX BRANDS INTERNATIONAL, INC.
SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
JUNE 15, 1999
Xxxxxxxx Brands International, Inc., a New Jersey corporation
(the "Company"), proposes to issue and sell from time to time senior debt
securities, subordinated debt securities (collectively, "Debt Securities"),
preferred stock, which may be issued in the form of depositary shares, common
stock, and securities warrants registered under the registration statement
referred to in Paragraph 1(a) ("Underwritten Securities"). If specified in a
Terms Agreement (as defined in Paragraph 2), the Company proposes to grant to
the underwriters an option to purchase up to that amount of Underwritten
Securities specified in such Terms Agreement (the "Option Securities"). The Debt
Securities will be issued under indentures (as they may be amended or
supplemented from time to time, the "Indentures"), more particularly described
in a Terms Agreement, between the Company and the trustees named therein (the
"Trustee(s)"), in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, conversion or exchange provisions,
selling prices and other terms, with all such terms for any particular series of
the Debt Securities being determined at the time of sale. The preferred stock
will be issued in one or more series, which may be either Non-Voting Cumulative
Preferred Stock, par value $1.00 per share ("Non-Voting Preferred Stock"), or
Cumulative Preference Stock, without par value ("Preference Stock"), (together
"Preferred Stock"), either of which may be issued in the form of depositary
shares evidenced by depositary receipts ("Depositary Shares"). Each series of
Preferred Stock may vary as to voting rights, dividends, optional and mandatory
redemption provisions, liquidation preference and conversion or exchange
provisions and other terms, with all such terms for any particular series or
issue of the Preferred Stock being determined at the time of issue. Securities
warrants ("Securities Warrants") may also be offered from time to time to
purchase Debt Securities, Preferred Stock, common stock or Depositary Shares.
The Underwritten Securities will be sold pursuant to one or more Terms
Agreements, for resale in accordance with terms of offering determined at the
time of sale.
The Underwritten Securities (together with the Option
Securities) involved in any such offering are hereinafter referred to as the
"Securities." The firm or firms which agree to purchase all or any portion of
the Securities are hereinafter referred to as the "Underwriters" of such
Securities, and the representative or representatives of the Underwriters, if
any, specified in a Terms Agreement are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives," as
used in this Agreement (other than in Paragraphs 1(b), 7 and 9 and the second
sentence of Paragraph 2) shall mean the Underwriters.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents and warrants to and agrees with each Underwriter that:
(a) A registration statement on Form S-3 with respect
to the Securities (i) has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder,
(ii) has been filed by the Company with the Commission under the Act
and (iii) has been declared effective by the Commission. If any
post-effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of the Terms
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Agreement, the most recent such amendment has been declared effective
by the Commission. Copies of such registration statement (including all
documents incorporated by reference in the latest prospectus contained
therein) as amended as of the date of the Terms Agreement have been
delivered by the Company to the Representatives.
As used in this Agreement, "Primary Registration
Statement" means such registration statement (including documents
incorporated by reference therein), as it became effective under the
Act, "Rule 462(b) Registration Statement" means a second registration
statement, if any, on Form S-3 with respect to the Securities prepared
by the Company and filed with the Commission under the Act pursuant to
Rule 462(b) of the Rules and Regulations, and "Registration Statements"
means both the Primary Registration Statement and any Rule 462(b)
Registration Statement, in each case including all exhibits (other than
Form T-1) and financial schedules thereto, as amended as of the date of
the Terms Agreement; "Basic Prospectus" means the prospectus (including
documents incorporated by reference therein) included in the
Registration Statement; "Prospectus" means the Basic Prospectus,
together with any prospectus amendment or supplement specifically
relating to the Underwritten Securities to be purchased by the
Underwriters pursuant to the Terms Agreement, as first filed with, or
mailed for filing to, the Commission pursuant to Rule 424(b) of the
Rules and Regulations ("Rule 424") after the date of the Terms
Agreement; "amend" or "amendment" with respect to the Registration
Statements shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date on which the Primary
Registration Statement became effective under the Act that is deemed to
be incorporated by reference in the Registration Statements. As of the
date of the Terms Agreement, the Commission has not issued any order
preventing or suspending the use of any Prospectus.
(b) The Registration Statements and the Prospectus
comply, and, at all times when a prospectus is required to be delivered
in connection with offers or sales of the Underwritten Securities, the
Registration Statements, any amendments thereof, the Prospectus and the
Prospectus as amended or supplemented, including any document filed by
the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after
the dates of such Registration Statements or Prospectus, as the case
may be, and incorporated by reference in such Registration Statements
or Prospectus ("Incorporated Documents"), will comply, as to form in
all material respects with the requirements of the Act, the Exchange
Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), if applicable, and the rules and regulations under
such acts; the Indenture, if any, specified in any Terms Agreement
including any amendments and supplements thereto, will comply as to
form in all material respects with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission
thereunder; and the Registration Statements and the Prospectus
(including any Incorporated Documents) do not contain, and at all times
when a prospectus is required to be delivered in connection with offers
or sales of Underwritten Securities, will not include, any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that the Company makes no
representation or warranty as to information contained in or omitted
from the Registration Statements or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives, if any, specifically for inclusion
therein. The Indenture, if any, described in the Terms Agreement has
been qualified under the Trust
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Indenture Act.
(c) The documents which are incorporated by reference
in the Registration Statements and the Prospectus have been, and each
Incorporated Document will be, prepared by the Company in conformity
with the requirements of the Act and the Exchange Act and the rules and
regulations thereunder and such documents have been, or in the case of
an Incorporated Document will be, timely filed as required thereby.
Copies of each of the documents incorporated by reference in the
Registration Statements and the Prospectus, together with satisfactory
evidence of the filing thereof, have been delivered by the Company to
the Representatives.
(d) The Company has all necessary corporate power and
authority to execute and deliver the Terms Agreement (including the
provisions of this "Underwriting Agreement Basic Provisions") and
perform its obligations under the Terms Agreement (including the
provisions of this "Underwriting Agreement Basic Provisions") and the
Terms Agreement (including the provisions of this "Underwriting
Agreement Basic Provisions") has been duly authorized, executed and
delivered by the Company, constitutes the valid and binding agreement
of the Company and is enforceable against the Company in accordance
with its terms, subject to the qualification that the enforceability of
the Company's obligations thereunder and hereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights, by general equity
principles and by public policy restrictions on provisions relating to
indemnification.
(e) The execution, delivery and performance of the
Terms Agreement (including the provisions of this "Underwriting
Agreement Basic Provisions") and the consummation of the transactions
contemplated therein and herein and compliance by the Company with the
provisions of the Underwritten Securities and the Indenture, if any,
described in the Terms Agreement will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets of the Company or any of its Significant Subsidiaries (as
defined in Paragraph 13) pursuant to the terms of, or constitute a
default (or an event which with the giving of notice or the lapse of
time or both will constitute a default) under, any agreement, indenture
or instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of its Significant Subsidiaries or any
law, treaty, order, rule, regulation or determination of any
arbitrator, court or governmental agency having jurisdiction over the
Company, any of its Significant Subsidiaries or their property. Except
as required by the Act, the Trust Indenture Act, if applicable, the
Exchange Act, and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
performance of the Terms Agreement (including the provisions of this
"Underwriting Agreement Basic Provisions") and the Indenture, if any,
described in the Terms Agreement.
(f) Since the respective dates as of which
information is given in the Registration Statements and the Prospectus
and prior to the Delivery Date (as defined in Paragraph 4 hereof),
there has not been, and there will not have been, any material change
in the capital stock of the Company, any material increase in the
long-term debt of the Company or any of its Significant Subsidiaries or
any material adverse change in, or any development which might
reasonably be expected to have a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole.
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(g) To the best knowledge of the Company, Ernst &
Young LLP, whose reports are included or incorporated by reference in
the Registration Statements and the Prospectus, are independent public
accountants as required by the Act and the Rules and Regulations.
(h) On the Delivery Date (i) the Indenture, if any,
described in the Terms Agreement will have been validly authorized,
executed and delivered by the Company, will have been duly qualified
under the Trust Indenture Act and will constitute the valid and legally
binding obligation of the Company, enforceable in accordance with its
terms; (ii) the Debt Securities, if any, described in the Terms
Agreement will have been validly authorized for issuance, and, upon
execution, authentication, delivery and payment therefor as provided in
this Agreement and such Indenture, will be validly issued and
outstanding, and will constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance with their
terms and entitled to the benefits of such Indenture; (iii) such
Indenture will conform to the descriptions thereof in the Prospectus;
(iv) if any Securities to be issued are convertible or exchangeable,
the shares of capital stock issuable upon conversion or exchange are
duly and validly authorized, have been duly reserved for issuance upon
conversion or exchange of the Securities and, when issued upon the
conversion or exchange of the Securities, will be duly and validly
issued, fully paid and non-assessable; (v) the common stock and
preferred stock, if any, described in the Terms Agreement have been
duly and validly authorized and when issued will be fully paid and
non-assessable; (vi) no further approval or authority of the
stockholders or the Board of Directors of the Company will be required
for the issuance and sale of the Securities as contemplated herein or
the issuance of the shares of capital stock upon conversion or exchange
of the Securities; and (vii) the Securities will conform to the
description thereof in the Prospectus.
(i) The Company and each of its Significant
Subsidiaries have been duly organized, are validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation and are duly qualified to do business and in good
standing as foreign corporations in each jurisdiction in which their
respective ownership of property or lease of property or the conduct of
their respective businesses requires such qualification and in which
the failure to qualify might reasonably be expected to have, singularly
or in the aggregate with all such failures, a material adverse effect
on the business, properties, financial condition, results of operations
or prospects of the Company and its subsidiaries taken as a whole. Each
of the Company and its Significant Subsidiaries has the corporate power
and authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged. All of the authorized and
outstanding shares of capital stock of the Company are duly authorized,
validly issued and outstanding and are fully paid and non-assessable,
with no personal liability attaching to the ownership thereof. All
outstanding shares of capital stock of the Significant Subsidiaries of
the Company are duly authorized, validly issued and outstanding, fully
paid and non-assessable and, except for director's and employee's
qualifying shares and other nominal interests in certain non-U.S.
Significant Subsidiaries, are owned, directly by the Company or a
wholly-owned subsidiary of the Company free and clear of any lien,
claim, encumbrance, restriction upon voting or transfer, preemptive
rights or any other claim of any third party.
(j) Neither the Company nor any of its Significant
Subsidiaries (i) is in default, and no event has occurred which, with
notice or lapse of time or both,
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may constitute such a default, under any lease, license, indenture,
mortgage, deed of trust, note, bank loan or other evidence of
indebtedness or any other agreement, understanding or instrument to
which the Company or any such Significant Subsidiary is a party or by
which the Company or any such Significant Subsidiary or any property of
the Company or any such Significant Subsidiary may be bound or
affected, the effect of which default might reasonably be expected to
have, singularly or in the aggregate with all such defaults, a material
adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its subsidiaries
taken as a whole, or (ii) is in violation of the Company's or any such
Significant Subsidiary's corporate charter and by-laws or any law,
ordinance, governmental rule or regulation, court decree or decree of
any regulatory body, administrative agency, governmental body or
arbitrator to which it may be subject or has failed to obtain any
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business, which violation or failure might
reasonably be expected to have, singularly or in the aggregate with all
such violations and failures, a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole.
(k) The Company and each of its Significant
Subsidiaries owns, or has valid rights to use, all items of real and
personal property which are material to the business of the Company and
its subsidiaries taken as a whole, free and clear of all liens,
encumbrances and claims which might reasonably be expected to
materially interfere with the conduct of the business of the Company
and its subsidiaries taken as a whole. The Company and each of its
Significant Subsidiaries (i) carries or, in the case of a Significant
Subsidiary is covered by, insurance in such amounts and covering such
risks as is generally maintained in the same general area by companies
of established repute engaged in the same or similar business, all such
policies of insurance are in full force and effect and there is no
claim by the Company or a Significant Subsidiary under any such policy
or instrument which is being denied or defended under a reservation of
rights clause, which denial or reservation, if sustained, would
reasonably be expected to have, singularly or in the aggregate with all
such denials and reservations, a material adverse effect on the
business, properties, financial condition or prospectus of the Company
and its subsidiaries taken as a whole, and neither the Company nor any
such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at an additional cost, if any, that would not
reasonably be expected to have a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole and (ii)
owns or possesses adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses,
permits and certificates from governmental authorities necessary for
the conduct of its business and has no reason to believe that the
conduct of its business will conflict with, and has not received any
notice of any claim of conflict with, the rights of others in respect
thereof which conflict might reasonably be expected to have, singularly
or in the aggregate with all such conflicts, a material adverse effect
on the business, properties, financial condition, results of operations
or prospects of the Company and its subsidiaries taken as a whole.
(l) Except as disclosed in the Registration
Statements and the Prospectus, there is no litigation or proceeding
pending before or by any court or
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governmental agency, authority or body, or any arbitrator or, to the
knowledge of the Company, threatened against the Company, any of its
subsidiaries or their respective properties which (i) would affect the
subject matter of the Terms Agreement (including the provisions of this
"Underwriting Agreement Basic Provisions") or the transactions
contemplated by the Prospectus or (ii) might be expected to have,
singularly or in the aggregate with all such litigation and
proceedings, a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(m) The financial statements (including the related
notes and schedules) filed as part of or incorporated by reference in
the Registration Statements or included or incorporated by reference in
the Prospectus present fairly in accordance with generally accepted
accounting principles the consolidated financial condition, results of
operations and cash flows of the Company, at the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The selected financial data set forth
under the caption "Selected Consolidated Financial Data" in the
Prospectus and Registration Statement fairly present on the basis
stated in the Prospectus and Registration Statement, the information
included therein.
(n) No relationship, direct or indirect, exists
between or among the Company or any of its Significant Subsidiaries, on
the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company or of any of its Significant Subsidiaries, on
the other hand, which is required by the Act or by the Rules and
Regulations to be described in the Registration Statements and the
Prospectus which is not so described or is not adequately described.
(o) Except as disclosed in the Registration
Statements and the Prospectus, no labor disturbance by the employees of
the Company or any of its Significant Subsidiaries exists or, to the
knowledge of the Company, is threatened and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or its subsidiaries' principal suppliers, contractors or customers,
in each case which might reasonably be expected to have, singularly or
in the aggregate with all such disturbances, a material adverse effect
on the business, properties, financial condition, results of operations
or prospects of the Company and its subsidiaries taken as a whole.
(p) Except as described in the Registration
Statements and Prospectus, the Company and each of its Significant
Subsidiaries has fulfilled its obligations, if any, under the minimum
funding standards of the United States Retirement Income Security Act
of 1974 ("ERISA") and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in ERISA and such
regulations and published interpretations) of the Company or any of its
Significant Subsidiaries and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and
such regulations and published interpretations, and has not incurred
any liability to the Pension Benefit Guaranty Corporation or to any
such plan under Title IV of ERISA.
(q) Except as described in the Registration
Statements and Prospectus, there has been no storage, disposal,
generation, manufacture, refinement, transportation, production or
treatment of toxic wastes, solid wastes, hazardous wastes or hazardous
substances by the Company or any of its Significant
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Subsidiaries (or, to the best knowledge of the Company, any of their
predecessors in interest) at or upon any of the property owned or
leased by the Company or its Significant Subsidiaries in violation of
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which, singularly
or in the aggregate with all such violations and remedial actions,
might reasonably be expected not to have a material adverse effect on
the business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole. Except
as described in the Registration Statements and Prospectus, there has
been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property, of any toxic wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by
the Company or any of its Significant Subsidiaries or with respect to
which the Company or any of its Significant Subsidiaries have
knowledge. The terms "hazardous wastes" and "hazardous substances"
shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(r) The Company is not and, after giving effect to
the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(s) No holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement.
(t) The Company and each of its subsidiaries maintain
a system of internal accounting controls designed to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(u) The Company has not taken, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Underwritten Securities specified in the Terms Agreement.
(v) The Company and its subsidiaries have implemented
a company-wide program to analyze and address the risk that the
computer hardware and software used by them may be unable to recognize
and properly execute date-sensitive functions involving certain dates
prior to and any dates after December 31, 1999 (the "Year 2000
Problem"), which program includes replacement and repair of items that
have been identified as having potential Year 2000 Problems, assessment
of the Year 2000 Problem readiness of material customers and suppliers
and development of contingency plans. The program is substantially
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complete and is expected to be completed before the end of 1999 at a
cost which is not material to the Company and its subsidiaries, taken
as a whole. The Company believes that it is in substantial compliance
with the Commission's Release No. 33-7558, effective August 4, 1998
related to Year 2000 compliance, as amended to date.
2. PURCHASES AND OFFERING OF SECURITIES. The obligation of the
Underwriters to purchase, and the Company to sell, any Underwritten Securities
will be evidenced by an exchange of a telegram, telex or other written
communication (the "Terms Agreement") delivered at the time the Company
determines to sell the Underwritten Securities. Each Terms Agreement will be
substantially in the form of Annex II(A) or (B) attached hereto and will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be Underwriters,
the names of any Representatives, the amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and certain terms
of the Securities and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below). The Terms
Agreement specifies any details of the terms of the offering which should be
reflected in a post-effective amendment to the Registration Statement or the
supplement to the Prospectus relating to the offering of the Underwritten
Securities. The obligations of the Underwriters to purchase the Underwritten
Securities will be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company grants an option to the
several Underwriters to purchase, severally and not jointly, up to that amount
of the Option Securities, as shall be specified in the Terms Agreement, from the
Company at the same price as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over- allotments in the
sale of the Underwritten Securities by the Underwriters and may be exercised in
whole or in part at any time (but not more than once) on or before the thirtieth
day after the date of the Terms Agreement upon written or telegraphic notice by
the Representatives to the Company setting forth (i) the amount of the Option
Securities as to which the several Underwriters are exercising the option and
(ii) the date, time and place of delivery of the Option Securities. The amount
of Option Securities to be purchased by each Underwriter shall be the same
percentage of the total amount of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares/units.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contract") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are only to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Delivery Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate amount of Securities to be
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purchased by each Underwriter will be reduced pro rata in proportion to the
amount of Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives not later than the business day prior to
the Delivery Date of the amount of Contract Securities.
3. CONDITIONS OF COMPANY'S OBLIGATIONS; DEFAULTING
UNDERWRITERS. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Underwritten Securities to be purchased
pursuant to this Agreement as hereinafter provided.
If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated severally to purchase the Underwritten Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the amount of Underwritten Securities set forth in the Terms
Agreement to be purchased by each remaining non- defaulting Underwriter bears to
the aggregate amount of Underwritten Securities set forth in such Terms
Agreement for all the remaining non-defaulting Underwriters; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any Underwritten Securities if the aggregate amount of Underwritten
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase exceeds 9.09% of the total amount of Underwritten Securities, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the amount of Underwritten Securities set forth in the Terms
Agreement to be purchased by it. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase (in such proportions as may be agreed upon among them)
all the Underwritten Securities. If the foregoing maximums are exceeded and the
remaining Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses to any non-defaulting Underwriter as set forth in Paragraph 6.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or the non-defaulting
Underwriters for damages caused by such Underwriter's default. If other
underwriters are obligated or agree to purchase the Underwritten Securities of a
defaulting Underwriter, the Representatives may postpone the Delivery Date for
up to seven full business days in order to effect any changes that may be
necessary in the Registration Statement, the Prospectus or any other document or
arrangement.
4. DELIVERY OF AND PAYMENT FOR THE UNDERWRITTEN SECURITIES.
Delivery of and payment for the Underwritten Securities shall be made at the
time and place specified in the Terms Agreement, on the third business day
following the date of the Terms Agreement or at such other location, time and
date as shall be determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the "Delivery Date". On
the Delivery Date, the Company shall deliver the Underwritten Securities to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price for the Underwritten Securities
by wire transfer payable in same day funds to an account specified by the
Company. If applicable, delivery of Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise
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instruct.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To furnish promptly to the Representatives and to
counsel for the Underwriters a copy of each of the Registration
Statements as originally filed, and each amendment or supplement
thereto filed, with the Commission, including all consents and exhibits
filed therewith;
(b) To deliver promptly to the Representatives and to
each Underwriter such number of conformed copies of the Registration
Statements as originally filed and each amendment thereto (excluding
exhibits other than this "Underwriting Agreement Basic Provisions", the
Indentures and the computation of the ratio of earnings to fixed
charges and the ratio of earnings to combined fixed charges and
preferred stock dividends) and the Prospectus and any amended or
supplemented Prospectus as the Representatives may reasonably request
during the period referred to in clause (c) of this Paragraph 5;
(c) To prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the Representatives and
to file timely such Rule 462(b) Registration Statement with the
Commission; to file timely with the Commission during such period
following the date of each Terms Agreement as a prospectus is required
to be delivered in connection with offers or sales of Underwritten
Securities any amendment or supplement to the Registration Statement or
the Prospectus that may, in the reasonable judgment of the Company or
the Representatives, be required by the Act or requested by the
Commission and approved by the Representatives;
(d) Prior to filing with the Commission during the
period referred to in clause (c) of this Paragraph 5 (i) any amendment
or supplement to either Registration Statement or (ii) the Prospectus
and any amendment or supplement thereto, or (iii) any document
incorporated by reference in any of the foregoing, to furnish a copy
thereof to the Representatives for the Underwriters and obtain the
consent of the lead Representative to the filing, which consent shall
not be unreasonably withheld;
(e) To advise the Representatives promptly (i) when
the 462(b) Registration Statement and any post-effective amendment to
either Registration Statement relating to or covering the Underwritten
Securities becomes effective, (ii) of any request or proposed request
by the for an amendment or supplement to either Registration Statement
(to the extent that the amendment or supplement relates to or covers
the Underwritten Securities) or to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of either Registration Statement or any
order directed to the Prospectus or the initiation or threat of any
stop order proceeding, and (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification (or
exemption from qualification) of the Underwritten Securities for sale
in any jurisdiction or the initiation or threat of any proceeding for
that purpose;
(f) To advise the Representatives promptly of the
happening of any event prior to the termination of any offering of
Underwritten Securities which makes untrue any statement of a material
fact made in the Registration Statements or the Prospectus, or which
requires the making of a change in the Registration Statements or the
Prospectus in order to make any material statement therein not
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misleading or which requires the filing of any document under the
Exchange Act;
(g) If, during the period referred to in clause (c)
of this Paragraph 5, the Commission shall issue a stop order or any
order preventing or suspending the effectiveness of either Registration
Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time;
(h) As soon as practicable, but not later than 16
months after the date of each Terms Agreement, to make generally
available to its security holders and to deliver to the Representatives
an earning statement of the Company and its subsidiaries, covering a
period of at least 12 months beginning after the later of (i) the
effective date of the Primary Registration Statement, (ii) the
effective date of the most recent post-effective amendment to either
Registration Statement to become effective prior to the date of such
Terms Agreement or (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Terms Agreement, which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act;
(i) To endeavor to qualify the Underwritten
Securities for offer and sale under the securities laws of such
jurisdictions as the Representatives may reasonably request, except for
such jurisdictions where the qualification of the Underwritten
Securities would require the Company to qualify to do business as a
foreign corporation or file a general consent to service of process;
(j) If the Underwritten Securities are to be listed
on a securities exchange, to use its best efforts comply in all
material respects with the listing requirements of such exchange and to
complete the listing of the Underwritten Securities to be sold by the
Company on such exchange prior to the Delivery Date;
(k) The Company will cooperate with the
Representatives and use its best efforts to permit the Securities to be
eligible for clearance and settlement through The Depository Trust
Company, the Euroclear System and Cedelbank, as applicable.
(l) Subject to Paragraph 5(d) hereof, until the
termination of any offering of Underwritten Securities, to file in a
timely manner all documents and any amendments of previously filed
documents required to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act;
(m) During the period of three years after the date
of any Terms Agreement, the Company will furnish to the Representatives
and, upon request, to each of the other Underwriters, if any, as soon
as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each Annual
Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on
Form 8-K and definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Representatives may reasonably request;
(n) To apply the net proceeds of the sale of the
Underwritten Securities as set forth in the Prospectus;
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(o) To not (i) in the event of an offering of common
stock or convertible preferred stock, offer, sell, contract to sell or
otherwise dispose of any shares of common stock or any securities
convertible into or exchangeable or exercisable for or any rights to
purchase or acquire common stock for that period specified in the Terms
Agreement, other than shares of common stock or options to purchase
common stock granted under the Company's employee benefit plans; and
(ii) for a period beginning at the time of execution of the Terms
Agreement and ending on the Delivery Date, in the event of an offering
of Debt Securities, offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company with maturities longer than one
year, other than (A) the Debt Securities to the Underwriters or the
Contract Securities; (B) borrowings in the ordinary course of business;
and (C) other borrowings in an aggregate principal amount not to exceed
$10 million, in either case without the prior consent of the
Representatives; and
(p) To not take prior to the termination of the
offering of the Underwritten Securities set forth in the Terms
Agreement, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result
under the Exchange Act or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of such Underwritten Securities.
6. EXPENSES. The Company agrees to pay the costs incident to
the authorization, issuance, sale and delivery of the Underwritten Securities
and any taxes payable in that connection; the costs incident to the preparation,
printing and filing under the Act of the Registration Statements and any
amendments, supplements and exhibits thereto, and the Prospectus and any
amendment or supplement to the Prospectus; the costs of distributing the
Registration Statements as originally filed and each amendment and any
post-effective amendments thereof (including exhibits), the Prospectus and any
amendment or supplement to the Prospectus as provided in this Agreement; the
costs of printing this Agreement and the Indenture; the costs of filings with
the National Association of Securities Dealers, Inc.; fees paid to rating
agencies in connection with the rating of the Underwritten Securities; the costs
incident to the listing of the Underwritten Securities on any securities
exchange, including any fees of a book-entry depositary listing agent and paying
agent, if applicable; the fees and expenses of qualifying the Underwritten
Securities under the securities laws of the several jurisdictions as provided in
this Paragraph and of preparing and printing a Blue Sky Memorandum, and a
memorandum concerning the legality of the Underwritten Securities as an
investment (including reasonable fees and expenses of counsel to the
Underwriters in connection therewith); the cost of preparing the Underwritten
Securities; the fees and expenses of any Trustee and any agent of any Trustee
and the fees and disbursements of counsel for any Trustee in connection with the
Indenture and the Underwritten Securities; any transfer agent's fees; and all
other costs and expenses incident to the performance of the obligations of the
Company under this Agreement; provided that except as provided in this Paragraph
and in Paragraphs 3 and 10, the Underwriters shall pay all of their own costs
and expenses, including the fees and expenses of their counsel, any transfer
taxes on the Underwritten Securities which they may sell and the expenses of
advertising any offering of the Underwritten Securities made by the
Underwriters; provided, however, that the Company shall have no obligation to
pay the expenses of a defaulting Underwriter, as set forth in Paragraph 3.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either the Act or the Exchange Act, from and
against any loss, claim, damage or liability,
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joint or several, and any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales
of Underwritten Securities), to which that Underwriter, director, officer,
employee, agent or controlling person may become subject, under the Act,
Exchange Act, Federal or state statutory law or regulation 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 blue sky application, the Registration Statements, the
Prospectus, any Incorporated Document or the Registration Statements or the
Prospectus, in each case as amended or supplemented, 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 not misleading and shall reimburse
each Underwriter and each such director, officer, employee, agent or controlling
person, as incurred, for any legal and other out of pocket expenses reasonably
incurred by that Underwriter, director, officer, employee, agent or controlling
person in investigating or defending or preparing to defend against or appearing
as a third party witness in connection with any such loss, claim, damage,
liability or action; 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, any untrue statement or alleged untrue
statement or omission or alleged omission made in any blue sky application, the
Registration Statements, the Prospectus or any amendment thereof or supplement
thereto, made in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives, if any, specifically for inclusion therein; and provided
further that as to any Prospectus this indemnity agreement shall not inure to
the benefit of any Representative, Underwriter, director, officer, employee,
agent or any person controlling an Underwriter on account of any loss, claim,
damage, liability or action arising from the sale of Underwritten Securities to
any person by that Underwriter if that Underwriter failed to send or give a copy
of the Prospectus (or the Prospectus as amended or supplemented) to such person
within the time required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such Prospectus was remedied or corrected in such Prospectus, unless
such failure resulted from non- compliance by the Company with Paragraph 5(b)
hereof. For purposes of the second proviso to the immediately preceding
sentence, the term Prospectus shall not be deemed to include the documents
incorporated therein by reference, and no Underwriter shall be obligated to send
or give any supplement or amendment to any document incorporated by reference in
any Prospectus to any person other than a person to whom such Underwriter had
delivered such incorporated document or documents in response to a written
request therefor. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or any such
director, officer, employee, agent or controlling person of that Underwriter.
(b) Each Underwriter severally, and not jointly, shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed either Registration Statement, and each person, if any, who
controls the Company within the meaning of either the Act or the Exchange Act,
from and against any loss, claim, damage, expense or liability, joint or
several, and any action in respect thereof, to which the Company or any such
director or officer or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon any untrue statement or alleged untrue statement of a
material fact contained in any blue sky application, the Registration
Statements, the Prospectus or the Registration Statements or Prospectus, in each
case as amended or supplemented, or arises out of, or is 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, 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
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with information furnished in writing to the Company by or on behalf
of that Underwriter through the Representatives, if any, specifically for
inclusion therein, and shall reimburse the Company or any such director or
officer or controlling person for any legal and other expenses reasonably
incurred by the Company or any such director or officer or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company or any
such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Paragraph 7 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 Paragraph 7, 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 to an indemnified party under this Paragraph 7
unless and to the extent such indemnifying party did not otherwise learn of such
claim or action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and shall not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided under this Paragraph 7. 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 Paragraph 7 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, (1) if the defendants in
any such action include both an indemnified party and an indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, (2) if the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (3) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party or (4) the indemnifying party shall authorize the indemnified party to
employ separate counsel and the expense of the indemnifying party, in each case
the indemnified party or parties under this Paragraph 7 shall have the right to
employ not more than one counsel (in addition to one local counsel in each
jurisdiction in which any action is brought) to represent them and, in that
event, the reasonable fees and expenses of such separate counsel shall be paid
by the indemnifying party. No indemnifying party shall be liable for any
settlement of any claim or action effected without its written consent. 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.
(d) If the indemnification provided for in this Paragraph 7
shall be for any reason unavailable or insufficient to hold the indemnified
party harmless, then the Company and the Underwriters severally shall, in lieu
of indemnifying an 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 hand from the offering of the Underwritten
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Securities, or (ii) if the allocation provided by clause (i) above is not
permitted for any reason, 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 hand 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 hand with respect to such offering
shall be deemed to equal the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company and
the total underwriting discounts, commissions and fees received by the
Underwriters with respect to such offering, respectively, 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 whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Paragraph 7(d) 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 Paragraph 7(d) shall be deemed to include, for
purposes of this Paragraph 7(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Paragraph 7(d), no
Underwriter shall be required to contribute any amount in excess of the amount
of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. 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. The Underwriters' obligations to contribute as provided in
this Paragraph 7(d) are several in proportion to their respective underwriting
obligations (or proceeds) and not joint. For the purposes of this Paragraph 7,
each person who controls an Underwriter within the meaning of either the Act or
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 the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
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
provisions of this paragraph (d).
(e) The Company acknowledges and the Underwriters confirm that
the statements listed in Terms Agreement as "Statements provided to the Company
by or on behalf of the Underwriters" constitute the only information furnished
in writing to the Company by or on behalf of the Underwriters severally for
inclusion in the Prospectus.
(f) The agreements contained in this Paragraph 7 and the
representations, warranties and agreements of the Company in Paragraphs 1, 5 and
6 shall survive the delivery of the Underwritten Securities and shall remain in
full force and effect, regardless of any termination or cancelation of this
Agreement or any investigation made by or on behalf of any indemnified party.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy on the
date of the Terms Agreement and the Delivery Date, of the representations and
warranties of the Company contained herein, the accuracy of the statements of
the Company made in any certificates
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delivered pursuant to the terms hereof, to performance by the Company of its
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with
the Commission in accordance with Paragraph 5(c) of this Agreement; at
or before the Delivery Date, no stop order suspending the effectiveness
of either Registration Statement shall have been issued, and prior to
that time no stop order proceeding shall have been initiated or
threatened by the Commission; any request of the Commission for
inclusion of additional information in the Registration Statements or
the Prospectus or otherwise shall have been complied with or otherwise
satisfied; and the Company shall not have filed with the Commission the
Prospectus or any amendment or supplement to either Registration
Statement or the Prospectus or any Incorporated Document without the
consent of the lead Representative, provided that after the Delivery
Date no such consent shall be unreasonably withheld.
(b) No Underwriter shall have discovered and
disclosed to the Company, on or prior to the Delivery Date, that the
Registration Statements or the Prospectus or any amendment or
supplement thereto or any Incorporated Document contains an untrue
statement of a fact which, in the opinion of Xxxxxxx, Swaine & Xxxxx,
counsel to 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.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Underwritten Securities and the Indenture and the forms of Registration
Statements and the Prospectus, other than financial statements and
other financial data, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to Cravath, Swaine & Xxxxx, counsel to the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) The Company shall have furnished to the
Representatives the opinion of Xxxxxx X. Xxxxx, Senior Vice President,
General Counsel and Secretary of the Company, addressed to the
Underwriters and dated the Delivery Date and, if Option Securities are
purchased, at any date after the Delivery Date as specified in a Terms
Agreement, an additional opinion from such counsel, addressed to the
Underwriters and dated such later date, confirming that the statements
expressed as of the Delivery Date in such opinion remain valid as of
such later date, to the effect that:
(i) The Company has been duly organized and each of
its Designated Subsidiaries (as defined in Paragraph 13) is
duly incorporated; the Company and its Designated Subsidiaries
are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, have all
requisite corporate power and authority to own or lease and
operate their properties and to conduct the businesses in
which they are engaged and are duly qualified to do business
and in good standing as foreign corporations in each
jurisdiction in the United States in which their respective
ownership or lease of property or the conduct of their
respective businesses requires such qualification, except
where the failure to qualify or be in good standing would not
reasonably be expected to have, singularly or in the aggregate
with all such failures, a material
23
17
adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole;
(ii) The Company's authorized equity capitalization
is as set forth in the Prospectus; all of the issued and
outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable, with no personal liability attaching to the
ownership thereof; all the outstanding shares of capital stock
of each of the Company's Designated Subsidiaries have been
duly authorized and validly issued and are fully paid and
non-assessable and, except for director's or employee's
qualifying shares and other nominal interests in certain
non-U.S.-Designated Subsidiaries, are owned, directly by the
Company or a wholly-owned subsidiary of the Company free and
clear of any lien, claim, encumbrance, restriction upon voting
or transfer, preemptive rights or any other claim of any third
party known to such counsel;
(iii) The Indenture, if any, described in the Terms
Agreement has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust
Indenture Act; the Debt Securities, if any, described in the
Terms Agreement are in a form contemplated by such Indenture
and have been duly authorized by all necessary corporate
action; such Debt Securities other than any Contract
Securities have been duly executed, authenticated, issued and
delivered; such Indenture and such Debt Securities other than
any Contract Securities constitute, and any Contract
Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, subject to the qualification that the
enforceability of the Company's obligations thereunder may be
limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights and by general equity principles;
(iv) If any Securities to be issued are convertible
or exchangeable, the shares of capital stock into which the
Securities will be initially convertible or exchangeable are
duly and validly authorized; have been duly reserved for
issuance upon conversion or exchange of the Securities; and
when issued upon the conversion or exchange of the Securities,
will be duly and validly issued, fully paid and
non-assessable;
(v) The common stock and preferred stock, if any,
described in the Terms Agreement have been duly and validly
authorized and issued and are fully paid and non-assessable;
(vi) The Securities other than any Contract
Securities conform and the Indenture, if any, described in the
Terms Agreement and any Contract Securities, when so issued
and delivered and sold, will conform, in all material respects
to the description thereof contained in the Prospectus;
(vii) The Registration Statements have become
effective under the Act; any required filing of the Prospectus
pursuant to Rule 424(b) has
24
18
been made in the manner and within the time period required by
Rule 424(b); and no stop order suspending its effectiveness
has been issued by the Commission and, to the best of such
counsel's knowledge, no proceeding for that purpose is pending
or threatened by the Commission;
(viii) To the best of such counsel's knowledge, no
order directed to any document incorporated by reference in
the Prospectus and the Registration Statements has been issued
by the Commission and to the knowledge of such counsel, no
challenge by the Commission has been made to the accuracy or
adequacy of any such document;
(ix) The Registration Statements and the Prospectus
and any amendment or supplement thereto, as of its date,
comply as to form in all material respects with the
requirements of the Act, the Rules and Regulations thereunder
and the Trust Indenture Act, and the documents incorporated by
reference in the Registration Statements and the Prospectus
comply as to form in all material respects with the applicable
requirements of the Act or the Exchange Act and the rules and
regulations thereunder;
(x) The Terms Agreement (including the provisions of
this "Underwriting Agreement Basic Provisions") and any
Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company;
(xi) To the best of such counsel's knowledge, the
Company is not in violation of its corporate charter or
by-laws or in default under any material agreement, indenture
or instrument, except to the extent such violations or
defaults could not reasonably be expected to have, singularly
or in the aggregate, a material adverse effect on the
business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries
taken as a whole;
(xii) The Company has all necessary corporate power
to execute and deliver the Terms Agreement (including the
provisions of this "Underwriting Agreement Basic Provisions")
and the Indenture, if any, described in the Terms Agreement
and to perform its obligations under the Terms Agreement
(including the provisions of this "Underwriting Agreement
Basic Provisions") and under such Indenture;
(xiii) The execution, delivery and performance of the
Terms Agreement (including the provisions of this
"Underwriting Agreement Basic Provisions"), the consummation
of any other transactions herein contemplated and the issuance
and sale of the Underwritten Securities and the compliance
with the terms and provisions of the Underwritten Securities
and the Indenture, if any, described in the Terms Agreement
will not conflict with, or result in the creation or
imposition of any material lien, claim, encumbrance,
restriction upon any of the assets of the Company or any of
its Designated Subsidiaries pursuant to the terms of, or
constitute a breach or violation of or default under, any
material agreement, indenture or instrument to which the
Company or any of its Designated Subsidiaries is a party or
bound, or result in a violation of the corporate charter or
by-laws of the Company or any of its Designated Subsidiaries
or any law, treaty, order, rule or regulation or any
determination known to such counsel of any arbitrator, court
or
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19
governmental agency having jurisdiction over the Company, any
of the Company's Designated Subsidiaries or any of their
properties. Except as required by the Act, the Exchange Act,
the Trust Indenture Act, if applicable, and applicable state
securities laws, no consent, authorization or order of, or
filing or registration with, any court or governmental agency
or body in the United States is required for the execution,
delivery and performance of this Agreement by the Company;
(xiv) There are no legal or governmental proceedings
to which the Company or any of its Designated Subsidiaries is
a party, pending or, to the best of such counsel's knowledge,
threatened against the Company or any of its Designated
Subsidiaries or its or their properties which (A) might
reasonably be expected to have a material adverse effect on
the subject matter of the Terms Agreement or the transactions
contemplated by the Prospectus, (B) other than as described in
the Prospectus, might reasonably be expected to have,
singularly or in the aggregate with all such litigation and
proceedings, a material adverse effect on the business,
properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole
or (C) of a character required to be disclosed in the
Registration Statement which is not disclosed in the
Registration or the Prospectus in accordance with the
requirements of the Act;
(xv) The Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Prospectus, will not
be an "investment company" as defined in the Investment
Company Act of 1940, as amended; and
(xvi) To the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of
such securities under the Registration Statement.
In addition, such counsel shall state that he participated in
the preparation of the Registration Statement and the Prospectus and that
although he has not independently verified and is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus, no facts have
come to such counsel's attention that cause him to believe that (A) the
Registration Statements, each as of its effective date and the date it was last
deemed amended on or prior to the date of the Terms Agreement, 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 (B) the Prospectus as of its date and on the Delivery Date
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (such counsel need express no opinion or belief as to
the financial statements or other financial or statistical data included in or
incorporated by reference in the Registration Statements or the Prospectus or
omitted therefrom).
Such counsel's opinion may be limited to the laws of the
States of New York and Ohio, the Delaware General Corporation Law and the New
Jersey Business Corporation Act. In rendering such opinion, such counsel may
rely (A) as to matters involving other laws, upon the opinions of other counsel
satisfactory to Xxxxxxx, Swaine & Xxxxx and (B) as to matters of fact, upon
certificates of officers of the Company and public officials.
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20
(e) The Company shall have furnished to the
Representatives on the Delivery Date a certificate dated the Delivery
Date, and on any later date on which Option Securities are purchased if
specified in a Terms Agreement, a certificate dated such date, signed
on behalf of the Company by either the Company's Chief Executive
Officer or President and by the Company's Chief Financial Officer or
Controller stating that they have carefully examined the Registration
Statements and the Prospectus and that:
(i) The representations, warranties and agreements of
the Company in Paragraph 1 hereof are true and correct as of
such date; the Company has complied with all its agreements
contained herein; and the conditions on its part to be
fulfilled prior to such date set forth herein have been
fulfilled;
(ii) No stop order suspending the effectiveness of
either Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
existing from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have furnished to the
Representatives on the Delivery Date and any later date on which Option
Securities are purchased if specified in a Terms Agreement, a letter of
Ernst & Young, addressed to the Underwriters and dated such date, in
form and substance satisfactory to the Representatives, confirming that
they are independent public accountants with respect to the Company
within the meaning of the Act and the Exchange Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, and stating, as of the date of such letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
or incorporated by reference in the Prospectus, as of a date not more
than five days prior to the date of such letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Representatives
concurrently with the execution of the Terms Agreement and confirming
in all material respects the conclusions and findings set forth in such
prior letter.
(g) The NASD, upon review of the terms of the public
offering of the Underwritten Securities, if any, shall not have
objected to the participation by any of the Underwriters in such
offering or asserted any violations of the By-Laws of the NASD.
(h) In the event of an offering of common stock or
convertible preferred stock, the Company shall have furnished to the
Representatives a letter agreement of American Financial Group, Inc.
("AFG"), addressed to the Underwriters and dated on or before the date
of the Terms Agreement relating to such offering, providing in
substance that for that period specified in the Terms Agreement
27
21
(i) AFG will not, and will cause its direct and indirect subsidiaries
(other than the Company and subsidiaries of the Company) not to, sell,
offer or contract to sell, sell or grant options, rights or warrants
with respect to or otherwise dispose of, directly or indirectly, except
to direct or indirect subsidiaries of AFG, any common stock or
preferred stock of the Company (or securities convertible into or
exchangeable for common stock or preferred stock of the Company) except
with the prior written consent of the lead underwriter and (ii) AFG has
not taken, and will not take, directly or indirectly, and will cause
its direct and indirect subsidiaries not to take, directly or
indirectly, any action that might reasonably be expected to cause or
result in stabilization of the price of the common stock or preferred
stock of the Company or manipulation of the price of the common stock
or preferred stock of the Company.
(i) Subsequent to the date of the Terms 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 (i) any change or decrease specified in the letter or letters
furnished on the date of the Terms Agreement pursuant to paragraph (f)
of this Section 8 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(j) 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.
All opinions, letters, certificates and documents mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof if they are exactly in the form set forth above and, if
not, or if no particular form is set forth above, only if they are in form and
substance reasonably satisfactory to the Representatives and Cravath, Swaine &
Xxxxx, counsel to the Underwriters. If any of the conditions specified in this
Section 8 shall not have been fulfilled, this Agreement and all obligations of
the Underwriters hereunder may be canceled at, or at any time prior to, the
Delivery Date by the Representatives. Notice of such cancelation shall have been
given to the Company in writing or by telephone or facsimile confirmed in
writing.
9. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Representatives, if any, on behalf of the Underwriters
(or, if there are no Representatives, by a majority in interest of the
Underwriters), in their or its absolute discretion, by notice given to and
received by the Company prior to delivery of and payment for the Underwritten
Securities, if on or after the date of this Agreement and prior to that time
there shall have occurred any of the following: (a) trading in the Company's
common stock shall have been suspended by the Commission or the New York Stock
Exchange (other than a temporary trading halt pending an announcement by the
Company) or a general suspension of or limitation in trading in securities
generally on
28
22
the New York Stock Exchange, the American Stock Exchange or the over-the-counter
market or minimum prices shall have been established on one or more of such
exchanges or such market, or (b) a general banking moratorium declared by United
States federal or New York State authorities, or (c) any downgrading accorded
the Company's debt securities or preferred securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading of such rating) or (d)(i) a material adverse change in national or
international political, financial or economic conditions or national or
international equity markets or currency exchange rates or controls, if the
existing effect of any such event, in the reasonable judgment of the
Representatives, makes it inadvisable to proceed with the payment for and
delivery of the Underwritten Securities or (ii) the engagement by the United
States in active military conflict, or an outbreak or significant increase in
hostilities which would likely result in the declaration of a national emergency
or war, if the existing effect of any such event, in the reasonable judgment of
the Representatives, makes it inadvisable to proceed with the payment for and
delivery of the Underwritten Securities.
10. EXPENSES UPON TERMINATION. If the Company shall fail for
any reason to tender the Underwritten Securities on the Delivery Date to the
Underwriters under this Agreement, or if the Underwriters shall decline to
purchase the Underwritten Securities for any reason permitted under this
Agreement, the Company shall reimburse the Underwriters for the reasonable fees
and expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of the Underwritten Securities and upon demand the Company shall pay
the full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Paragraph 3 by reason of the default of one or more Underwriters,
the Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
11. NOTICES. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made by the
Representatives. Any notice to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Underwriters at the address set forth
for that purpose in the Terms Agreement, and any notice to the Company shall be
sufficient if, given in writing or by telegraph addressed to Xxxxxxxx Xxxxxx
International, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention:
Xxxxxx X. Xxxxx.
12. 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. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Act and (b) (1) the indemnity agreement of the Underwriters contained in
Paragraph 7 of this Agreement shall be deemed to be for the benefit of directors
of the Company, officers of the Company who have signed either Registration
Statement and any person controlling the Company and (2) the indemnity agreement
of the Company contained in Paragraph 7 of this Agreement shall be deemed to be
for the benefit of directors, officers, employees and agents of each
Underwriters and any person controlling an Underwriter. Nothing in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding two sentences any legal or equitable rights,
remedy or claim under or in respect of this
29
23
Agreement or any provision contained herein.
13. CERTAIN DEFINITIONS. For purposes of this Agreement, (a)
"business day" means any day on which the New York Stock Exchange is open for
trading, (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations, (c) "Significant Subsidiary" shall mean each of the entities set
forth on Schedule 1 attached hereto and made a part hereof, as such list of
entities may be amended pursuant to a Terms Agreement, and (d) "Designated
Subsidiary" shall mean each of the entities set forth on Schedule 2, attached
hereto and made a part hereof, as such list of entities may be amended pursuant
to a Terms Agreement.
14. GOVERNING LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
The Terms Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall together
constitute a single instrument.
15. CURRENCY. To the fullest extent permitted bylaw, the
obligations of the Company in respect of any amount due under this Agreement
will, notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in U.S.
dollars or euro, as applicable, that the party entitled to receive such payment
may, in accordance with its normal procedures, purchase with the sum paid in
such other currency (after any premium and costs of exchange) on the business
day immediately following the day on which such party receives such payment. If
the amount in the relevant currency that may be so purchased for any reason
falls short of the amount originally due, the Company will pay such additional
amounts, in the relevant currency, as may be necessary to compensate for the
shortfall. Any obligation of the Company not discharged by such payment will, to
the fullest extent permitted by applicable law, be due as a separate and
independent obligation and, until discharged as provided herein, will continue
in full force and effect.
16. 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.
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24
SCHEDULE 1
SIGNIFICANT SUBSIDIARIES
SUBSIDIARY JURISDICTION OF
---------- INCORPORATION
-------------
Xxxxxxxx Brands, Inc. Delaware
American Produce Company Delaware
Great White Fleet, Ltd. Bermuda
DSF Ltd. Bermuda
Great White Fleet (US) Ltd. Bermuda
Xxxxxxxx Banana Company, B.V. Netherlands
Xxxxxxxx Italia, S.p.A Italy
Xxxxxxxx Frupac Inc. Delaware
Xxxxxxxx International Delaware
Trading Company
Xxxxxxxx International Bermuda
Limited
M.M. Holding Ltd. Bermuda
Chiriqui Land Company Delaware
Compania Agricola de Rio Tinto Delaware
Xxxxxxxx Processed Foods, L.L.C. Delaware
Tela Railroad Company Delaware
Bocas Fruit Co., Ltd. Panama
Xxxxxxxx Brands Company, North America Delaware
Puerto Armuelles Fruit Co., Ltd. Panama
Compania Bananera Atlantica Limitada Costa Rica
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25
SCHEDULE 2
DESIGNATED SUBSIDIARIES
SUBSIDIARY JURISDICTION OF
---------- INCORPORATION
---------------
Xxxxxxxx Brands, Inc. Delaware
American Produce Company Delaware
Great White Fleet, Ltd. Bermuda
Xxxxxxxx Banana Company, B.V. Netherlands
Xxxxxxxx Frupac Inc. Delaware
Xxxxxxxx International Delaware
Trading Company
Xxxxxxxx International Bermuda
Limited
Chiriqui Land Company Delaware
Compania Agricola de Rio Tinto Delaware
Xxxxxxxx Processed Foods, L.L.C. Delaware
Tela Railroad Company Delaware
Xxxxxxxx Brands Company, North America Delaware
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26
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on __________, ____.)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
XXXXXXXX BRANDS INTERNATIONAL, INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from XXXXXXXX BRANDS
INTERNATIONAL, INC. a New Jersey corporation ("Company"), and the Company agrees
to sell to the undersigned, [If one delayed closing, insert---as of the date
hereof, for delivery on _____________, ____ ("Delivery Date"),]
[$] ---------
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , and a Prospectus Supplement dated
_____, _________, relating thereto, receipt of copies of which is hereby
acknowledged,at __ % of the principal amount thereof plus accrued interest from
_______, _____, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
DELIVERY DATE PRINCIPAL AMOUNT
____________ [$] _______
____________ [$] _______
*/Insert date which is third full business day prior to Delivery Date under the
Terms Agreement.
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on---the--each--Delivery Date shall be made to the Company
or its order by
33
27
certified or official bank check in New York Clearing House (next day) funds at
the office of ____________ at ___.M. on--the--such--Delivery Date upon delivery
to the undersigned of the Securities to be purchased by the undersigned---for
delivery on such Delivery Date--in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to--the---such--Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on-- the--each--Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the 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.
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 the acceptance of any such Contract 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 requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
(Name of purchaser)
By
(Title of Signatory)
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28
(Address of Purchaser)
Accepted, as of the above date,
XXXXXXXX BRANDS INTERNATIONAL, INC.
By
Name:
Title:
35
XXXXX XX(A)
XXXXXXXX BRANDS INTERNATIONAL, INC. ("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
__________, __________
XXXXXXXX BRANDS INTERNATIONAL, INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Senior Vice President, General Counsel and Secretary
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement Basic Provisions
relating to the Debt Securities of Xxxxxxxx Brands International, Inc. dated
June 15, 1999 ("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Debt Securities
Title:
Rank: [Senior Debt] [Subordinated Debt] Securities
Principal Amount: $
Interest Rate: ___% from _______, ______, payable:
Maturity:
Form and Denomination:
Optional Redemption:
Sinking Fund:
Indenture:
Delayed Delivery Contracts: [authorized][not authorized]
Delivery Date:
Minimum Contract:
Maximum aggregate principal amount:
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30
Fee: _____%
Purchase Price: _____%, plus accrued interest, or amortized original
issue discount, if any, from 19____.
Expected Reoffering Price:
Names and Addresses of Representatives:
Statements provided to the Company by or on behalf of the Underwriters:
The respective principal amounts of the Debt Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Closing will take place at __ A.M., New York City time,
on _____ ,_____ at the offices of __________________.
The Securities will be made available for checking and
packaging at the office of not later than 2:00 p.m., New York City time, on the
business day prior to the Delivery Date.
Please signify your acceptance by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
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31
SCHEDULE A
DEBT SECURITIES
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
Total
38
32
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
__________, 19__, relating to shares of our [Insert title of Securities] (the
"Terms Agreement"). We also confirm that the representations and warranties of
the undersigned in the Underwriting Agreement Basic Provisions filed as an
exhibit to the undersigned's registration statement on Form S-3 (No.
33-_______) (together with the Terms Agreement, the "Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any
part thereof has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the respective dates of
the most recent financial statements in the Prospectus (as defined in the
Underwriting Agreement), there has been (or in the case of a form of prospectus
filed pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such
prospectus) no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
XXXXXXXX BRANDS
INTERNATIONAL, INC.
By
Name:
Title:
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33
XXXXX XX(B)
XXXXXXXX BRANDS INTERNATIONAL, INC.
("COMPANY")
EQUITY SECURITIES
TERMS AGREEMENT
XXXXXXXX BRANDS INTERNATIONAL, INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000 ______,_____,
Attention: Xxxxxx X. Xxxxx
Senior Vice President, General Counsel
and Secretary
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement Basic Provisions
relating to the Equity Securities of Xxxxxxxx Brands International Inc. dated
June 15, 1999 ("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Equity Securities
Title: [Common Stock, par value $.01 per share] [Non-Voting Preferred Stock, par
value $1.00 per share] [Preference Stock without par value]
Number of Shares to be issued: ___ shares
[For Preferred Stock:
Voting Rights:
Preferred Stock Dividends: cash dividends to accrue at an annual rate of $_____
per share, cumulative and payable quarterly in arrears on _____, _____, ______,
_____ and _______, _____.
Optional Redemption:
Mandatory Redemption/Sinking Fund:
Liquidation Preference: $_______ per share plus ___________.
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market
System] [American Stock Exchange] [Boston Stock Exchange] [Pacific Stock
Exchange]
Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement:
____________ days.
Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement:
_______ days
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34
Conversion Provisions:
Other Terms
Price to Public: $_______ per share
Underwriting Discounts and Commission:
Proceeds to Company:
Over-Allotment Option:
Delivery Date: _____ A.M. on ________, _______, at _________________
in New York [Clearing House (next day)][Federal (same-day)] funds.
Name of Transfer Agent and Registrar:
Names and Addresses of Representatives:
[For Common Stock:
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market
System] [American Stock Exchange] [Boston Stock Exchange] [Pacific Stock
Exchange]
Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement:
_____ days.
Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement:
_____ days.
Other Terms
Price to Public: $_____ per share
Underwriting Discounts and Commission:
Proceeds to Company:
Over-Allotment Option:
Delivery Date: _____ A.M. on ________, _______, at ______________________
in New York [Clearing House (next day)] [Federal (same-day)] funds.
Name of Transfer Agent and Registrar:
Names and Addresses of Representatives:]
Statements provided to the Company by or on behalf of the
Underwriters:
The respective shares of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
[It is understood that we may, with your consent, amend this
offer to add
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35
additional Underwriters and reduce the number of shares to be purchased by the
Underwriters listed in Schedule A hereto by the number of shares to be purchased
by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [except that the obligations and agreements set forth in
Paragraph 3 ("Conditions of Company's Obligations; Defaulting Underwriters") of
the Underwriting Agreement shall not apply to the obligations of the
Underwriters to purchase the above Securities].
The Securities will be made available for checking and
packaging at the office of _______ at least 24 hours prior to the Delivery Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return
wire not later than P.M. today.]
Very truly yours,
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36
SCHEDULE A
UNDERWRITER NUMBER OF
----------- SHARES
----------
Total
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37
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
_____________, 19__, relating to shares of our [Insert title of Securities]
(the "Terms Agreement"). We also confirm that the representations and
warranties of the undersigned in the Underwriting Agreement Basic Provisions
filed as an exhibit to the undersigned's registration statement on Form S-3
(No. 33-________) (together with the Terms Agreement, the "Underwriting
Agreement") are true and correct, no stop order suspending the effectiveness of
the Registration Statement (as defined in the Underwriting Agreement) or of any
part thereof has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the undersigned, are contemplated by the
Securities and Exchange Commission and, subsequent to the respective dates of
the most recent financial statements in the Prospectus (as defined in the
Underwriting Agreement), there has been (or in the case of a form of prospectus
filed pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such
prospectus) no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
XXXXXXXX BRANDS INTERNATIONAL, INC.
By
Name:
Title:
