[THIS IS THE FORM OF UNDERWRITING AGREEMENT TO BE USED
FOR ▇▇▇▇▇▇ ▇▇▇▇▇▇ SHELF TRANSACTIONS.]
▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
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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
Dear Sirs:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation, 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 October 3, 1996, as amended or supplemented from time to
time (the "Indenture") between the Company and The First National Bank of
Chicago, 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) [ ] registration statements (File Nos. _______), including a
preliminary prospectus for use in connection with the Securities pursuant
to Rule 429 under the Securities and Exchange Act of 1933, as amended (the
"Act") in respect of the Securities, have been filed with the Securities
and Exchange Commission (the "Commission") each in the form heretofore
delivered to you and, excluding exhibits to such registration statements,
but including all documents incorporated by reference therein, to you for
each of the other Underwriters; such registration statements, each in such
form, have been declared effective by the Commission; no stop orders
suspending the effectiveness of such registration statements have been
issued and no proceeding for that purpose has been initiated or threatened
by the Commission; no amendment or supplement thereto or to any document
incorporated by reference therein has heretofore been filed with the
Commission; such
preliminary prospectus included for use in connection with the Securities
pursuant to Rule 429 under the Act meets the requirements of the Act and
the rules and regulations thereunder for use for such preliminary
prospectus in connection with the Securities; and a supplemented prospectus
relating to the Securities, in the form heretofore delivered to you, is now
proposed to be filed with the Commission pursuant to Rule 424 under the Act
(any such preliminary prospectus, or any preliminary prospectus supplement
relating to the Securities, being hereinafter called a "Preliminary
Prospectus"; such registration statements, including all exhibits thereto
and the documents incorporated therein by reference but excluding Form T-1,
as amended at the time each such registration statement became effective,
being hereinafter called the "Registration Statement"; and such
supplemented prospectus being hereinafter called the "Prospectus"; and any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be, and any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus, shall be deemed to refer to and include any documents filed
after such date under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference);
(b) 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, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder, and 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
you expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act 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, when they are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act 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 you expressly for use therein;
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(d) The Registration Statement, as of the applicable effective
date, conformed and the Prospectus and any 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 Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and did not and will
not, as of the applicable effective date of the Registration Statement and
any amendment thereto and as of the applicable filing date of the
Prospectus or any supplement thereto, 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
you expressly for use therein;
(e) Since the respective dates as of which information is given in
the Registration Statement and in the Prospectus, there have not been, and
prior to the Time of Delivery (as defined in Section 4 hereof) there will
not be, any changes in the capital stock (other than issuances of Common
Stock upon exercises of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
preferred stock) or any increases in the long-term debt (excluding capital
leases) of the Company or any of its subsidiaries or any material 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, otherwise than as set forth or contemplated in the
Prospectus;
(f) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(g) 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 operation or its right to enforce
a material contract against others or expose it to
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substantial liabilities in such jurisdiction; and each 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 operation or its
right to enforce a material contract against others or expose it to
substantial liabilities in such jurisdiction;
(h) 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
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable, and (except for directors' qualifying
shares, certain outstanding shares of non-voting common stock of The
Associated Merchandising Corporation and certain outstanding shares of
preferred stock of Dayton Development Company) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(i) 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 entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized, executed
and delivered and constitutes 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 Securities and the Indenture will conform to the
description thereof 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 authorized by the Company
and, when executed and delivered by the Company and the purchaser named
therein, will constitute 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 Contract will conform
to the description thereof in the Prospectus;
(j) 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, if any, and this Agreement 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
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encumbrance upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its 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 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 of
the other transactions contemplated by this Agreement or any Delayed
Delivery Contract or the Indenture, except such as have been obtained, or
will have been obtained at the Time of Delivery, 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 in connection with the purchase and/or distribution of the
Securities by the Underwriters;
(k) 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 incident to the kind of business conducted by the Company and
its subsidiaries which, if determined adversely to the Company and its
subsidiaries, would not individually or in the aggregate have a material
adverse effect on the financial position, shareholders' investment or
results of operations of the Company and its subsidiaries; and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
(l) Ernst & Young 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.
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 you 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 IV
attached hereto, but with such changes therein as the Underwriters and the
Company may authorize or
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approve. If so specified, the Underwriters will endeavor to make such
arrangements, and as compensation therefor the Company will pay to the
Underwriters, for their respective accounts, 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 Underwriters 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 Underwriters 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 Underwriters not later than 3:30 p.m., New York City time, on the
third business day preceding the Time of Delivery (or such other time and date
as the Underwriters 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 you for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor in same-day funds, at the office of King & ▇▇▇▇▇▇▇▇,
▇▇▇▇ Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:30 a.m., New York
City time, on [CLOSING DATE], or at such other time and date as you 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 you in the form of global Securities, representing all of the
Securities, which will be deposited by you on behalf of the Underwriters, with
The Depository Trust Company, or its nominee, for credit to the respective
accounts of the Underwriters.
Concurrently with the delivery of any Contract Securities to the purchasers
thereof pursuant to Delayed Delivery Contracts, the Company will deliver to the
Underwriters for their respective accounts 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 make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the Time of Delivery which shall be
disapproved by you
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promptly after reasonable notice thereof; to advise you promptly of any
such amendment or supplement after the Time of Delivery and furnish you
with copies thereof and 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; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
become effective or any supplement to the Prospectus or any amended
Prospectus has been filed, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, 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 preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as you 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, PROVIDED 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) To furnish the Underwriters with copies of the Prospectus in
such quantities as you may from time to time 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 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 you and upon your 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 you 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 your request but at
the expense of such Underwriter, to prepare and deliver
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to such Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act; and
(e) During the period beginning from the date hereof and continuing
to and including the later of the Time of Delivery or such earlier time as
you may notify the Company, 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.
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, 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, 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 Trustees 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
their discretion, 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) 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
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by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable
satisfaction;
(b) King & Spalding, counsel for the Underwriters, shall have
furnished to you 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;
(c) ▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Senior Vice President and Secretary of the
Company, shall have furnished to you his written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, 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 its right to enforce a material contract against others
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 he believes that both you and he are
justified in relying upon such opinions and certificates);
(iii) Each 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 its right to enforce a material
contract against others or expose it to substantial liabilities in
such jurisdiction; all of the issued shares of capital stock of each
subsidiary 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 subsidiary (except for directors'
qualifying shares, certain outstanding shares of non-
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voting common stock of The Associated Merchandising Corporation and
certain outstanding shares of preferred stock of Dayton Development
Company) 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 subsidiaries, PROVIDED
that such counsel shall state that he believes that both you and he
are justified in relying upon such opinions and certificates); and
(iv) 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; and to the best of such counsel's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(d) Faegre & ▇▇▇▇▇▇ LLP, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, 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) 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 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; and to the best of such counsels'
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iii) This Agreement 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
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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;
(iv) 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; 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; and the Securities and the Indenture conform to the
descriptions thereof in the Prospectus;
(v) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes 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 has been
duly qualified under the Trust Indenture Act;
(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 and this Agreement
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 indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
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
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; 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 of the other
transactions contemplated by this Agreement or the Indenture 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 in
-11-
connection with the purchase and/or distribution of the Securities by
the Underwriters;
(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
were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and such counsel have no
reason to believe that any of such documents, when they were so filed,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading;
(viii) 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,
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; such counsel
have no reason to believe that the Registration Statement contained as
of its effective date or that the Prospectus contained as of the date
of the supplement comprising a part thereof, or that either the
Registration Statement or the Prospectus contains as of the Time of
Delivery (or that any further amendment or supplement thereto made by
the Company prior to the Time of Delivery contained as of its date or
contains as of the Time of Delivery) an untrue statement of material
fact or that the Registration Statement omitted as of such effective
date, or that the Prospectus 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; 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 in the Prospectus which are
not filed or incorporated by reference or described as required; and
(ix) The Company has an authorized capitalization as set
forth in the Prospectus;
(e) At the Time of Delivery, Ernst & Young LLP shall have furnished
to you a letter or letters, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect set forth in Schedule III
hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the
-12-
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,
other than as set forth or contemplated in the Prospectus; and (ii) since
the respective dates as of which information is given in the Prospectus
there shall not have been any decrease in the capital stock or any increase
in the long-term debt (excluding capital leases) of the Company or any of
its 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, 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 New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) an outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, the effect of any such
event specified in this clause (iii) in your judgment 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; and
(h) On or after the date of this Agreement (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities or
preferred stock 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
or preferred stock the effect of which, in any event specified in clause
(i) or (ii), in your judgment 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; and
(i) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of the Company
satisfactory to you 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 you a certificate of officers of the Company satisfactory
to you as to the matters set forth in subsections (a), (f) and (h) of this
Section.
-13-
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, the Registration Statement in the form in which it
was initially declared effective, or the Prospectus, 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; 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, the Registration Statement or such Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you
expressly for use therein.
(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, the Registration Statement in
the form in which it was initially declared effective, or the Prospectus,
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, the Registration Statement
or such Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through you 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.
(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,
-14-
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.
(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 relates to information supplied by the
Company or the Underwriters 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 offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to
-15-
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, you may in your discretion arrange for you 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 you 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 you to purchase such Underwriters' Securities on such
terms. In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such
Underwriters' Securities, or the Company notifies you that it has so
arranged for the purchase of such Underwriters' Securities, you 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 your 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
you 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 purchase hereunder) of the Underwriters'
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have
-16-
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
you 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, 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 you for all
out-of-pocket expenses approved in writing by you, 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, you 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 you jointly or by [LEAD UNDERWRITER] on behalf of you as 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 telegram if promptly confirmed in writing, and if to the
Underwriters, shall be sufficient in all respects if delivered or sent by
registered mail to you as the Representatives in care of [NAME AND ADDRESS OF
LEAD UNDERWRITER], Attention: __________________; and if to the Company, shall
be sufficient in all respects if delivered or sent by registered mail to ▇▇▇▇▇▇
▇▇▇▇▇▇ Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer; 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.
15. This Agreement shall be 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.
-18-
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon the acceptance hereof by you, 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 your 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 your part as to the
authority of the senders thereof.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
By:
------------------------------
Accepted as of the date hereof at New York,
New York:
[REPRESENTATIVE(S)]
By:
---------------------------------
On behalf of each of the Underwriters
-19-
SCHEDULE I
Underwriting Agreement dated [PRICING DATE]
Registration Statement Nos.[____________]
Representatives:
Description of Securities:
Title:
Maturity:
Interest Rate:
Interest Payment Dates:
Aggregate principal amount and currency:
Purchase price and currency: $______________ plus accrued interest from
[INITIAL INTEREST ACCRUAL DATE]
Sinking fund provisions: [The Securities shall not be entitled to any
sinking fund.]
Redemption provisions: [The Securities are not redeemable prior to
maturity.]
Other provisions: [Defeasance provisions set forth in Articles Four and
Fifteen of the Indenture shall apply to the Securities]
Closing Date, Time and Location: [CLOSING DATE] at 9:30 a.m. at the
office of King & ▇▇▇▇▇▇▇▇, ▇▇▇▇ Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇.
SCHEDULE II
PRINCIPAL AMOUNT
UNDERWRITER OF SECURITIES
----------- TO BE PURCHASED
----------------
............................................................ $_____________
............................................................
Total....................................................... $
--------------
--------------
SCHEDULE III
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the Representatives;
(iii) In their opinion, the unaudited selected financial information
with respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included in
the Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
changes in financial position included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act as its
applies to Form 10-Q and the related published rules and regulations
thereunder or are not in conformity with generally accepted accounting
principles for interim financial statements applied on a basis
substantially consistent with the basis for the audited consolidated
statements of income, consolidated balance sheets and consolidated
statements of changes in financial position included or incorporated
by reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder;
(E) as of a specified date not more than five days prior to
the date of such letter, when compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, there have been
- any changes in the consolidated capital stock (other than
issuances of capital stock upon the exercise of stock
options, pursuant to performance shares or restricted
stock awards and upon the conversion of convertible
securities, in each case which were outstanding on the
date of the latest balance sheet included or incorporated
by reference in the Prospectus), or
- any increase in the consolidated long-term debt
(excluding capital leases) of the Company and its
subsidiaries, or
S-2
- any decrease in consolidated working capital greater
than 1.5% of the Company's most recent fiscal year-end
total consolidated assets (treating all commercial
paper as a current liability), or
- any decreases in consolidated shareholders' investment
greater than 0.5% of the Company's most recent fiscal
year-end total consolidated assets (excluding decreases
resulting from normally recurring dividends), or
- any decreases or increases in other items specified by
the Representatives
in each case except for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E), when compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, there were
- any decreases in consolidated net sales or earnings
before income taxes and extraordinary charges, or
- any decreases in the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or
- any increases in any items specified by the
Representatives
in each case except for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents
S-3
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
S-4
SCHEDULE IV
DELAYED DELIVERY CONTRACT
▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
c/o
-----------------------
-----------------------
Attention:
-----------------
Dear Sirs:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
(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 _______,
19__ (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 or its order by certified or
official bank check in New York Clearing House funds at the office of
_______________________________________, or by wire transfer 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.
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:____________________, 19__
▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
By:
-------------------------------
[Title]
S-2
