Exhibit 1(a)
X.X. XXXXXX COMPANY
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Underwriting Agreement
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[Trade Date]
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
X.X. Xxxxxx Company, a Minnesota corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule II hereto (the "Underwriters"), the principal
amount set forth in Schedule II hereto of its debt securities identified on
Schedule I hereto (the "Securities"), to be issued under an indenture, dated as
of __________, ____, as amended or supplemented from time to time (the
"Indenture") between the Company and _______________________, as Trustee (the
"Trustee"), less the principal amount of Securities covered by Delayed Delivery
Contracts (as defined in Section 3 hereof), if any, as provided in Section 3
hereof and as may be specified in Schedule II hereto (any Securities to be
covered by Delayed Delivery Contracts being herein sometimes referred to as
"Contract Securities" and the Securities to be purchased by the Underwriters
(after giving effect to the deduction, if any, for Contract Securities) being
herein sometimes referred to as "Underwriters' Securities"). If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" as used
herein shall each be deemed to refer to such firm or firms.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. ___________) (the
"Initial Registration Statement") relating to certain securities (the
"Shelf Securities") to be issued from time to time by the Company has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial Registration
Statement and any post-effective amendment thereto, but including all
documents incorporated by reference in the prospectus contained therein, to
the Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration
Statement, any post-effective amendment thereto or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission; the Initial Registration Statement, any post-effective
amendment thereto and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by reference
in the prospectus contained in the Initial Registration Statement at the
time the Initial Registration Statement became effective but excluding Form
T-1, each as amended at the time the Initial Registration Statement or any
post-effective amendment thereto became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration Statement"
and the related prospectus covering Shelf Securities in the form first used
to confirm sales of the Securities is hereinafter called the "Base
Prospectus"; the Base Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used
to confirm sales of the Securities is hereinafter called the "Prospectus";
any reference in this Agreement to the Registration Statement, the Base
Prospectus, any preliminary form of the Prospectus filed with the
Commission pursuant to Rule 424 (a "Preliminary Prospectus") or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein that were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission thereunder on or before the date of this
Agreement or the date of the Base Prospectus, any Preliminary Prospectus or
the Prospectus, as the case may be; and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed under the Exchange Act
after the date of this Agreement, or the date of the Base Prospectus, any
Preliminary Prospectus or the Prospectus, as the case may be, which are
deemed to be incorporated by reference therein;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use in the
Prospectus;
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(c) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, (i) conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and (ii) did not contain an untrue statement of
a material fact or omit to state a 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein;
(d) The Registration Statement, as of its effective date, and the
Prospectus, as of its filing date and the Time of Delivery, conformed or
will conform, and any further amendments or supplements to the Registration
Statement or the Prospectus, when they become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), the Act, the rules and regulations of the
Commission thereunder and (i) the Registration Statement and any amendment
thereto, as of the applicable effective date of the Registration Statement
or any such amendment, did not contain any untrue statement of material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Prospectus and any amendment or supplement thereto, as of the date of the
Prospectus or any such amendment or supplement, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (iii) the Prospectus, as
amended or supplemented, if applicable, at the Time of Delivery, will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein;
(e) Neither the Company nor any of its Significant Subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus (as used herein, "Significant
Subsidiaries" shall mean _______________); and, since the respective dates
as of which information is given in the Registration Statement and in the
Prospectus, there has not been, and prior to the Time of Delivery (as
defined in Section 4 hereof) there will not be, any change in the capital
stock (other than issuances of common stock pursuant to stock option and
other compensatory plans and arrangements adopted by the Board of Directors
of the Company and repurchases of common stock by the Company under its
publicly announced stock buy back programs authorized by the Company's
Board of Directors or any increase in the long-term debt of the Company or
any of its Significant Subsidiaries or any material
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adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' investment or results of operations of the Company
and its subsidiaries taken as whole, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Minnesota,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction where, in light
of the nature of the business transacted or the property owned by it, such
qualification is necessary and the failure so to qualify might permanently
impair title to property material to its operations or expose it to
substantial liabilities in such jurisdiction; and each Significant
Subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction where, in light of the nature of the
business transacted or the property owned by it, such qualification is
necessary and the failure so to qualify might permanently impair title to
property material to its operations or expose it to substantial liabilities
in such jurisdiction;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable, and (except for directors'
qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement, and, in the case of any Contract
Securities, pursuant to Delayed Delivery Contracts (as defined in Section 3
hereof) with respect to such Contract Securities, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles and will be
entitled to the benefits provided by the Indenture, which Indenture will be
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery, the Indenture will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Securities will conform, to the descriptions
thereof contained in the Prospectus; and in the event any of the Securities
are purchased pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly
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authorized by the Company and, when executed and delivered by the Company
and the purchaser named therein, will constitute a valid and legally
binding instrument of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and any Delayed Delivery Contract
will conform to the description thereof in the Prospectus;
(i) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, the
Letter of Representations among the Company, the Trustee and The Depository
Trust Company (the "Letter of Representations"), each of the Delayed
Delivery Contracts, if any, and this Agreement and the consummation of the
transactions herein and therein contemplated will not result in a breach of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Company or any of its Significant
Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by which
the Company or any of its Significant Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation of
the provisions of the Restated Articles of Incorporation or the By-Laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its Significant Subsidiaries or any of their properties; and no consent,
approval authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Delayed Delivery Contract or the
Indenture or the Letter of Representations, except such as have been, or
will have been prior to the Time of Delivery, obtained under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws or NASD regulations in connection with the purchase and/or
distribution of the Securities by the Underwriters;
(j) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject, other than as set
forth in the Prospectus and other than litigation or governmental
proceedings which individually or in the aggregate do not and will not have
a material adverse effect on the financial position, shareholders'
investment or results of operations of the Company and its subsidiaries
taken as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; and
(k) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
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2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price set forth in Schedule I hereto the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II
hereto, which principal amount shall be subject to reduction pursuant to Section
3 hereof.
3. Upon the authorization by the Representatives of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus. The Company may
specify in Schedule I hereto that the Underwriters are authorized to solicit
offers to purchase Securities from the Company pursuant to delayed delivery
contracts (herein called "Delayed Delivery Contracts"), substantially in the
form of Schedule III attached hereto, but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the time specified in Section 4 hereof, such commission, if
any, as may be set forth in Schedule I. Delayed Delivery Contracts, if any, are
to be with the investors of the types described in the Prospectus and subject to
other conditions therein set forth. The Underwriters will not have any
responsibility in respect of the validity or performance of any Delayed Delivery
Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the Representatives have been
attributed to such Underwriter, provided that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in each
case, that proportion of Contract Securities which the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II hereto
bears to the total principal amount of the Securities set forth in Schedule II
hereto (rounded as the Representatives may determine). The total principal
amount of Underwriters' Securities to be purchased by all the Underwriters
hereunder shall be the total principal amount of Securities set forth in
Schedule II hereto less the principal amount of the Contract Securities. The
Company will deliver to the Representatives not later than 3:30 p.m. or as soon
thereafter as is reasonably practicable, New York City time, on the third
business day preceding the Time of Delivery (or such other time and date as the
Representatives and the Company may agree upon in writing) a written notice
setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter hereunder
shall be delivered by or on behalf of the Company to the Representatives for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer of Federal (same-day)
funds at the office of ____________________________ at 9:30 a.m., New York City
time, on [Closing Date], or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date being herein
called the "Time of Delivery." The Underwriters' Securities will be delivered by
the Company to the Representatives in the form of global Securities,
representing all of the Securities, which will be deposited by the
Representatives on behalf of the Underwriters, with The Depository Trust
Company, or its nominee, for credit to the respective accounts of the
Underwriters.
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Concurrently with the delivery and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of [lead underwriter] in the
amount of any compensation payable by the Company to the Underwriters in respect
of any Delayed Delivery Contracts as provided in Section 3 hereof and in
Schedule I hereto.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 424(b); to make no
further amendment or supplement to the Registration Statement or Prospectus
after the date of this Agreement and prior to the Time of Delivery which
shall be disapproved by the Representatives promptly after reasonable
notice thereof unless in the opinion of counsel to the Company such
amendment or supplement is required by law, provided, however, that the
Company shall only be required to provide the Company's periodic filings to
be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act to [Underwriters' Counsel], counsel to the
Underwriters, on behalf of the Representatives, on the business day prior
to the date on which such filings are to be transmitted for filing with the
Commission and no consent on the part of the Representatives shall be
required; to advise the Representatives promptly of any such amendment or
supplement after the Time of Delivery and furnish the Representatives with
copies thereof; to file promptly all reports and definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities; and, during the same period, to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or of the Prospectus or for additional information;
and, in the event of the issuance of any stop order or any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution or sale of the
Securities, provided,
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however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to ____________, New York City time, on the __________ New
York Business Day (as defined in Section 14) succeeding the date of this
Agreement and from time to time, to furnish the Underwriters with copies of
the Prospectus in New York City in such quantities as the Representatives
may reasonably request, and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the time of issue of
the Prospectus and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same time period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Securities at any time nine months or more after the time of
issue of the Prospectus, upon the Representatives' request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as
many copies as the Representatives may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the Time of Delivery, not to offer, sell, contract to sell
or otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Securities (including,
but not limited to, with respect to the maturity, interest rate and other
material terms of the Securities) without the prior written consent of the
Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
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6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, the Base Prospectus, any Preliminary Prospectus and the
Prospectus and (except as otherwise expressly provided in Section 5(c) hereof)
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing this
Agreement, the Indenture, the Letter of Representations, any Delayed Delivery
Contracts, and the Blue Sky and Legal Investment Memoranda; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee and any such agent in connection with the Indenture and the
Securities; and (vii) all of the other costs and expenses incident to the
performance of its obligations hereunder and under any Delayed Delivery
Contracts which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the Time
of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) [Underwriters' Counsel], counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the Time
of Delivery, with respect to the incorporation of the Company, the validity
of the Indenture, the Securities, the Delayed Delivery Contracts, if any,
the Registration Statement, the Prospectus, and other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
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(c) Xxxxxxx X. Xxxxx, Esq., Corporate Secretary, Vice President and
General Counsel of the Company, or another of the Company's counsel
satisfactory to the Representatives, shall have furnished to the
Representatives his or her written opinion, dated the Time of Delivery, in
form and substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Minnesota, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction where, in light of the
nature of the business transacted or the property owned by it, such
qualification is necessary and the failure so to qualify might in such
counsel's opinion permanently impair title to property material to its
operations or expose it to substantial liabilities in such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that such counsel believes that
both the Representatives and such counsel are justified in relying
upon such opinions and certificates);
(iii) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction where,
in light of the nature of the business transacted or the property
owned by it, such qualification is necessary and the failure so to
qualify might in such counsel's opinion permanently impair title to
property material to its operations or expose it to substantial
liabilities in such jurisdiction (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company or its Significant Subsidiaries, provided that
such counsel shall state that such counsel believes that both the
Representatives and such counsel are justified in relying upon such
opinions and certificates);
(iv) All of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable; and all
of the outstanding shares of capital stock of each such Significant
Subsidiary (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company or its Significant Subsidiaries, provided that
such counsel shall state that such counsel believes that both the
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Representatives and such counsel are justified in relying upon such
opinions and certificates);
(v) To the best of such counsel's knowledge there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, other than as set forth in the
Prospectus and other than litigation or governmental proceedings which
individually and in the aggregate are not material to the Company and
its subsidiaries taken as a whole; and to the best of such counsel's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture, each of the Delayed Delivery Contracts, this Agreement, the
Letter of Representations and the consummation of the transactions
therein and herein contemplated will not result in a breach of any of
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company or any of its Significant
Subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument
known to such counsel to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is
subject; and
(vii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading; and such counsel
does not know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or
required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or
described as required.
(d) _____________________, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Representatives, to the
effect that:
11
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Minnesota, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus;
(iii) To the best of such counsels' knowledge there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any
of its subsidiaries is the subject, other than as set forth in the
Prospectus and other than litigation or governmental proceedings which
individually and in the aggregate are not material to the Company and
its subsidiaries; and to the best of such counsels' knowledge no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(iv) This Agreement and the Letter of Representations has been
duly authorized, executed and delivered by the Company; and in the
event any of the Securities are to be purchased pursuant to Delayed
Delivery Contracts, each of the Delayed Delivery Contracts has been
duly authorized, executed and delivered by the Company and, assuming
such contract has been duly executed and delivered by the purchaser
named therein, constitutes a valid and legally binding agreement of
the Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; and any Delayed Delivery Contracts
conform to the description thereof in the Prospectus;
(v) The Securities have been duly authorized; the Underwriters'
Securities have been duly executed, authenticated, issued and
delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; the Contract Securities, if any, when
executed, authenticated, issued and delivered pursuant to the
Indenture and the Delayed Delivery Contracts, if any, will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Indenture conform to the descriptions thereof in
the Prospectus;
(vi) Each of the Indenture and the Letter of Representations has
been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument enforceable against
the Company in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency,
12
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance by
the Company with all of the provisions of the Securities, the
Indenture, each of the Delayed Delivery Contracts, this Agreement and
the Letter of Representations and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any
of its subsidiaries pursuant to the terms of, any document filed or
incorporated by reference by the Company as an exhibit to its most
recent Annual Report on Form 10-K or any subsequent Quarterly Report
on Form 10-Q or Current Report on Form 8-K or any other material
contract known to such counsel, nor will such action result in any
violation of the provisions of the Restated Articles of Incorporation
or the By-Laws of the Company or any statute or any order, rule or
regulation applicable to the Company and known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
is required for the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by
this Agreement, the Indenture, the Letter of Representations or any of
the Delayed Delivery Contracts, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws or NASD regulations
in connection with the purchase and/or distribution of the Securities
by the Underwriters; and
(ix) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to the Time of Delivery (other than the financial statements therein
and documents incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Trust Indenture Act, the Act and
the rules and regulations of the Commission thereunder and, although
such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, such counsel has no reason
to believe that the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Company prior to
the Time of Delivery contained, as of its effective date or issue
date, as the case may be, or that either the Registration Statement or
the Prospectus or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery contains, as of the Time of
Delivery, an untrue statement of material fact or that the
Registration Statement or any further amendment or supplement thereto
made by the Company prior to the Time of
13
Delivery omitted as of such effective date, or that the Prospectus or
any further amendment or supplement thereto made by the Company prior
to the Time of Delivery omits as of the Time of Delivery to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading (in each case, other than the
financial statements therein, as to which such counsel need express no
opinion).
(e) At the Time of Delivery, PricewaterhouseCoopers LLP shall have
furnished to you a letter or letters, dated the Time of Delivery, in form
and substance satisfactory to you, containing statements and information of
the type customarily included in accountants "comfort letters" to
underwriters with respect to financial statements contained and
incorporated by reference in the Prospectus;
(f) (i) Neither the Company nor any of its Significant Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, other than as set forth or
contemplated in the Prospectus; and (ii) since the respective dates as of
which information is given in the Registration Statement and the Prospectus
there shall not have been any change in the capital stock (other than
issuances of common stock pursuant to stock option and other compensatory
plans and arrangements adopted by the Board of Directors of the Company and
repurchases of common stock by the Company under its publicly announced
stock buy back programs authorized by the Company's Board of Directors) or
any increase in the long-term debt of the Company or any of its Significant
Subsidiaries or a change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' investment or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus;
(g) On or after the date of this Agreement there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the Nasdaq National Market; (ii) a
suspension or material limitation in trading of any securities issued by
the Company; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; (iv) the outbreak
or escalation of hostilities involving the United States or the declaration
by the United States of a national emergency or war or (v) any material
adverse change in financial conditions in the United States or a disruption
in commercial banking or securities settlement or clearance services in the
United States, if the effect of any such event specified in clause (iv) or
(v) in the judgment of the Representatives makes it impractical or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated by the
Prospectus;
14
(h) On or after the date of this Agreement (i) no downgrading shall
have occurred in the rating accorded the Company's debt 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, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities, the effect of which, in any event
specified in clause (i) or (ii), in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery certificates of officers of the
Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of the Time
of Delivery and as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Time of Delivery
and the Company also shall have furnished to the Representatives a
certificate of officers of the Company satisfactory to the Representatives
as to the matters set forth in subsections (a), (f) and (h) of this
Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus or any other prospectus relating to the
Securities, or any such amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein. With
respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from the Prospectus, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from or through whom the
person asserting any such losses, claims, damages or liabilities purchased
the Securities concerned, to the extent that the Prospectus relating to
such Securities was required to be delivered by such Underwriter under the
Act in connection
15
with such purchase and was not so delivered at or prior to the written
confirmation of the sale of such Securities to such person and the untrue
statement or omission of a material fact contained in the Prospectus was
corrected in an amendment or supplement if the Company had previously
furnished copies of the Prospectus as so amended or supplemented (exclusive
of material incorporated by reference) to such Underwriter. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus or any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus or any other prospectus relating to the
Securities, or any such amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. An
indemnifying party shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any
losses, claims, damages
16
or liabilities by reason of such settlement or judgment. No indemnifying
party shall, without the written consent of the indemnified party, effect
the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to, or
an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions 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 shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by the Underwriters
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
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 account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include 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 subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and distributed to the public were
17
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Underwriters' Securities which it has agreed to purchase hereunder, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Underwriters' Securities on the
terms contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such
Underwriters' Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Underwriters'
Securities on such terms. In the event that, within the respective
prescribed periods, the Representatives notify the Company that the
Representatives have so arranged for the purchase of such Underwriters'
Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Underwriters' Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments to the Registration
Statement or the Prospectus which in the Representatives' opinion may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under the Section with like effect as
if such person had originally been a party to this Agreement with respect
to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Underwriters' Securities which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of all the Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Securities
which such Underwriter agreed to
18
purchase hereunder) of the Underwriters' Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Underwriters' Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all
the Securities, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Underwriters' Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Section 6 and Section 8 hereof; but if for any other reason the
Underwriters' Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Securities, but the Company shall then be under no further
liability to any Underwriter except as provided in Section 6 and Section 8
hereof.
12. In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the Company shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made or
given by the Representatives jointly or by [Lead Underwriter Name] on behalf of
the Representatives and may assume that such statement, request, notice or
agreement has been duly authorized by such Underwriter.
All statements, requests, notices and agreements hereunder shall be in
writing or by telephone if promptly confirmed in writing, and if to the
Underwriters, shall be sufficient in all respects if delivered or sent by
facsimile transmission or registered mail to the Representatives in care of
[Lead Underwriter Name and Address], Attention: _____________________, Telephone
No. ____________, Facsimile No. ____________, and if to the Company, shall be
19
sufficient in all respects if delivered or sent by facsimile transmission or
registered mail to X.X. Xxxxxx Company, 0000 Xxxxxx Xxxx Xxxxxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000-0000, Attention: ________________; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire or telex constituting such Questionnaire delivered
to the Company.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term (a) "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business and (b) "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
20
If the foregoing is in accordance with the Representatives' understanding,
please sign and return to us two counterparts hereof, and upon the acceptance
hereof by the Representatives, on behalf of each of the Underwriters, this
letter and such acceptance hereof shall constitute a binding agreement between
each of the Underwriters and the Company.
It is understood that the Representatives' acceptance of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of a telex, copies of which, to the extent practicable and upon request,
shall be submitted to the Company for examination, but without warranty on the
Representatives' part as to the authority of the senders thereof.
Very truly yours,
X.X. XXXXXX COMPANY
By:___________________________
Accepted as of the date hereof at New York,
New York:
[Underwriter Names]
By:_______________________________________
Authorized Signatory
[Lead Underwriter]
(On behalf of each of the Underwriters)
SCHEDULE I
I-1
SCHEDULE II
II-1
SCHEDULE III
DELAYED DELIVERY CONTRACT
X.X. Xxxxxx Company
c/o __________________________
Attention: _________________
Dear Sirs:
The undersigned hereby agrees to purchase from X.X. Xxxxxx Company (hereinafter
called the "Company"), and the Company agrees to sell to the undersigned,
$__________ principal amount of the Company's ____________ (hereinafter called
the "Securities"), offered by the Company's Prospectus dated _________ and
Prospectus Supplement dated _____________, receipt of a copy of which is hereby
acknowledged, at a purchase price of _______% of the principal amount thereof,
plus accrued interest from the date from which interest accrues as set forth
below, and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Securities from the Company on _______,
20__ (the "Delivery Date") and interest on the Securities so purchased will
accrue from ___________.
Payment for the Securities which the undersigned has agreed to purchase on the
Delivery Date shall be made to the Company by wire transfer of Federal
(same-day) funds to a bank account specified by the Company, on the Delivery
Date upon delivery to the undersigned of the Securities then to be purchased by
the undersigned 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 Delivery Date.
The obligation of the undersigned to take delivery of and make payment for the
Securities on the Delivery Date shall be subject to the condition that the
purchase of the Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject. The obligation of the undersigned to take delivery of
and make payment for the Securities shall not be affected by the failure of any
purchaser to take delivery of and make payment for the Securities pursuant to
other contracts similar to this contract.
The undersigned understands that underwriters (the "Underwriters") are also
purchasing Securities from the Company, but that the obligations of the
undersigned hereunder are not contingent on such purchases. 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.
III-1
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction to which
the undersigned is subject.
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.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts 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 by the Company.
Yours very truly,
_____________________________________
By:__________________________________
(Signature)
_____________________________________
(Name and Title)
_____________________________________
(Address)
Accepted: _______________, 20__
X.X. Xxxxxx Company
By:_______________________________
[Title]
III-2
