Exhibit 1
EXECUTION COPY
XXXX'X CORPORATION
(a Wisconsin corporation)
7 1/4% Debentures due 2029
PURCHASE AGREEMENT
Dated: May 26, 1999
Table of Contents
SECTION 1. Representations and Warranties by the Company 2
(a) Representations and Warranties 2
(i) Offering Memorandum 2
(ii) Incorporated Documents 3
(iii) Independent Accountants 3
(iv) Financial Statements 3
(v) No Material Adverse Change in Business 3
(vi) Good Standing of the Company 4
(vii) Good Standing of Designated Subsidiaries 4
(viii) Capitalization 4
(ix) Authorization of Agreement 4
(x) Authorization of the Indenture 4
(xi) Authorization of the Supplemental Indenture 4
(xii) Authorization of the Securities 5
(xiii) Authorization of the Registration Rights Agreement 5
(xiv) Absence of Defaults and Conflicts;
Absence of Further Requirements 5
(xv) Absence of Proceedings 5
(xvi) Possession of Licenses and Permits 6
(xvii) Environmental Laws 6
(xviii)Investment Company Act 6
xix) Similar Offerings 6
(xx) Rule 144A Eligibility 6
(xxi) No General Solicitation 7
(xxii) No Registration Required 7
(xxiii)Reporting Company 7
(xxiv) No Directed Selling Efforts 7
(xxv) No Stabilization or Manipulation 7
(xxvi) Year 2000. 7
(b) Officer's Certificates 8
SECTION 2. Sale and Delivery to Initial Purchasers; Closing 8
(a) Securities 8
(b) Payment 8
(c) Denominations; Registration 8
SECTION 3. Covenants of the Company 9
(a) Offering Memorandum 9
(b) Notice and Effect of Material Events 9
(c) Amendment to Offering Memorandum and Supplements 9
(d) Qualification of Securities for Offer and Sale 9
(e) Rating of Securities 10
(f) DTC 10
(g) Use of Proceeds 10
(h) Restriction on Sale of Securities 10
SECTION 4. Payment of Expenses 10
(a) Expenses 10
(b) Termination of Agreement 11
SECTION 5. Conditions of Initial Purchasers' Obligations 11
(a) Opinion of Counsel for Company 11
(b) Opinion of General Counsel for Company 11
(c) Opinion of Counsel for Initial Purchasers 11
(d) Officers' Certificate 11
(e) Accountants' Comfort Letter 12
(f) Bring-down Comfort Letter 12
(g) Maintenance of Rating 12
(h) Additional Documents 12
(i) Termination of Agreement 12
SECTION 6. Subsequent Offers and Resales of the Securities 13
(a) Offer and Sale Procedures 13
(i) Offers and Sales only to Qualified Institutional Buyers
and Institutional Accredited Investors 13
(ii) No General Solicitation 13
(iii) No Directed Selling Efforts 13
(iv) Purchases by Non-Bank Fiduciaries 13
(v) Subsequent Purchaser Notification 13
(vi) Minimum Denomination Amount 14
(vii) Restrictions on Transfer 14
(b) Covenants of the Company 14
(i) Integration 14
(ii) Rule 144A Information 14
(iii) Restriction on Resales 14
(c) Qualified Institutional Buyer 15
(d) Resale Pursuant to Rule 903 of Regulation S or Rule 144A 15
SECTION 7. Indemnification and Contribution 15
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery 18
SECTION 9. Termination of Agreement 19
(a) Termination; General 19
(b) Liabilities 19
SECTION 10. Default by One or More of the Initial Purchasers 19
SECTION 11. Notices 20
SECTION 12. Parties 20
SECTION 13. GOVERNING LAW AND TIME 20
SECTION 14. Effect of Headings 20
SCHEDULES
Schedule A - List of Initial Purchasers Sch A-1
Schedule B - Pricing Information Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel A-1
Exhibit B - Form of Opinion of Company's General Counsel B-1
ANNEXES
Annex A - Form of Accountants' Comfort Letter Annex A-1
XXXX'X CORPORATION
(a Wisconsin corporation)
$200,000,000
7 1/4% Debentures due 2029
PURCHASE AGREEMENT
May 26, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
BNY Capital Markets, Inc.
Banc One Capital Markets, Inc.
as Representative(s) of the several Initial Purchasers
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxx'x Corporation, a Wisconsin corporation (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") and each of the other Initial
Purchasers named in Schedule A hereto (collectively,
the "Initial Purchasers", which term shall also include
any initial purchaser substituted as hereinafter
provided in Section 11 hereof), for whom Xxxxxxx Xxxxx,
Xxxxxx Xxxxxxx & Co. Incorporated, BNY Capital Markets,
Inc. and Banc One Capital Markets, Inc., acting as
representative(s) (in such capacity, the
"Representative(s)"), with respect to the issue and
sale by the Company and the purchase by the Initial
Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule
A of $200,000,000 aggregate principal amount of the
Company's 7 1/4% Debentures due 2029 (the "Securities").
The Securities are to be issued pursuant to an
indenture dated as of December 1, 1995 (the
"Indenture") , as amended by the First Supplemental
Indenture dated as of June 1, 1999 (the "Supplemental
Indenture") between the Company and The Bank of New
York, as trustee (the "Trustee"). Securities issued in
book-entry form will be issued to Cede & Co. as nominee
of The Depository Trust Company ("DTC") pursuant to a
letter agreement, to be dated as of the Closing Time
(as defined in Section 2(b)) (the "DTC Agreement"),
among the Company, the Trustee and DTC.
The Company understands that the Initial
Purchasers propose to make an offering of the
Securities on the terms and in the manner set forth
herein and agrees that the Initial Purchasers may
resell, subject to the conditions set forth herein, all
or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after this
Agreement has been executed and delivered. The
Securities are to be offered and sold through the
Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the "1933 Act"), in
reliance upon exemptions therefrom. Pursuant to the
terms of the Securities, the Indenture and the
Supplemental Indenture, investors that acquire
Securities may only resell or otherwise transfer such
Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the
registration requirements of the 1933 Act is available
(including the exemption afforded by Rule 144A ("Rule
144A") or Regulation S ("Regulation S") of the rules
and regulations promulgated under the 1933 Act by the
Securities and Exchange Commission (the "Commission")).
The Company has prepared and delivered to each
Initial Purchaser copies of a preliminary offering
memorandum dated May 20, 1999 (the "Preliminary
Offering Memorandum") and has prepared and will deliver
to each Initial Purchaser, on the date hereof or the
next succeeding day, copies of a final offering
memorandum dated May 26, 1999 (the "Final Offering
Memorandum"), each for use by such Initial Purchaser in
connection with its solicitation of purchases of, or
offering of, the Securities. "Offering Memorandum"
means, with respect to any date or time referred to in
this Agreement, the most recent offering memorandum
(whether the Preliminary Offering Memorandum or the
Final Offering Memorandum, or any amendment or
supplement to either such document), including exhibits
thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the
Company to the Initial Purchasers in connection with
their solicitation of purchases of, or offering of, the
Securities.
All references in this Agreement to financial
statements and schedules and other information which is
"contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall
be deemed to mean and include all such financial
statements and schedules and other information which
are incorporated by reference in the Offering
Memorandum; and all references in this Agreement to
amendments or supplements to the Offering Memorandum
shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the
"1934 Act") which is incorporated by reference in the
Offering Memorandum.
SECTION 1. Representations and Warranties by
the Company.
(a) Representations and Warranties. The Company
represents and warrants to each Initial Purchaser as of
the date hereof and as of the Closing Time referred to
in Section 2(b) hereof, and agrees with each Initial
Purchaser, as follows:
(i) Offering Memorandum. The Offering
Memorandum does not, and at the Closing Time will
not, include an untrue statement of a material
fact or omit to state a
material fact necessary in
order to make the statements therein, in the light
of the circumstances under which they were made,
not misleading; provided that this representation,
warranty and agreement shall not apply to
statements in or omissions from the Offering
Memorandum made in reliance upon and in conformity
with information furnished to the Company in
writing by any Initial Purchaser through Xxxxxxx
Xxxxx expressly for use in the Offering
Memorandum.
(ii) Incorporated Documents. The Offering
Memorandum as delivered from time to time shall
incorporate by reference the most recent Annual
Report of the Company on Form 10-K filed with the
Commission and each Quarterly Report of the
Company on Form 10-Q and each Current Report of
the Company on Form 8-K filed with the Commission
since the filing of the end of the fiscal year to
which such Annual Report relates. The documents
incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time
they were or hereafter are filed with the
Commission complied and will comply in all
material respects with the requirements of the
1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act
Regulations"), and, when read together with the
other information in the Offering Memorandum, at
the time the Offering Memorandum was issued and at
the Closing Time, did not and will not include 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.
(iii) Independent Accountants. The
accountants who certified the financial statements
and supporting schedules included in the Offering
Memorandum are independent public accountants with
respect to the Company and its subsidiaries within
the meaning of Regulation S-X under the 1933 Act.
(iv) Financial Statements. The financial
statements, together with the related schedules
and notes, included in the Offering Memorandum
present fairly the financial position of the
Company and its consolidated subsidiaries at the
dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods
specified; said financial statements have been
prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved,
except as stated therein, and, with respect to
interim financial statements, subject to year-end
adjustments and the absence of complete footnotes.
The supporting schedules, if any, included in the
Offering Memorandum present fairly in accordance
with GAAP the information required to be stated
therein. The selected financial data and the
summary financial information included in the
Offering Memorandum present fairly the information
shown therein and have been compiled on a basis
consistent with that of the audited financial
statements included in the Offering Memorandum.
(v) No Material Adverse Change in Business.
There has not occurred any material adverse
change, or any development involving a prospective
material adverse
change in the condition,
financial or otherwise, or in the earnings,
business or operations of the Company and its
subsidiaries, taken as a whole ("Material Adverse
Effect"), from
that set forth in the Offering Memorandum
(exclusive of any amendments or supplements
thereto effected subsequent to the date of this
Agreement).
(vi) Good Standing of the Company. The
Company is validly existing as a corporation in
good standing under the laws of the State of
Wisconsin, has the corporate power and authority
to own its property and to conduct its business as
described in the Offering Memorandum and is duly
qualified to transact business and is in good
standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of
property requires such qualification, except to
the extent that the failure to be so qualified or
be in good standing would not have a Material
Adverse Effect.
(vii) Good Standing of Designated
Subsidiaries. Xxxx'x Department Stores, Inc., a
Delaware corporation, Kohl's Receivables
Corporation, a Wisconsin corporation, Kohl's
Investment Corp., a Delaware corporation, Xxxx'x
Pennsylvania, Inc., a Pennsylvania corporation and
Kohl's Illinois, Inc., a Nevada corporation, are
the only "significant subsidiaries" of the Company
(as such term is defined under Regulation S-X) and
each is validly existing as a corporation in good
standing under the laws of the State of its
incorporation, has the corporate power and
authority to own its property and to conduct its
business as described in the Offering Memorandum
and is duly qualified to transact business and is
in good standing in each jurisdiction in which the
conduct of its business or its ownership or
leasing of property requires such qualification,
except to the extent that the failure to be so
qualified or be in good standing would not have a
Material Adverse Effect.
(viii) Capitalization. All the
outstanding shares of common stock have been duly
authorized and are validly issued, fully paid and,
subject to Wisconsin Business Corporation Law
180.0622(2)(b), nonassessable.
(ix) Authorization of Agreement. This
Agreement has been duly authorized, executed and
delivered by the Company.
(x) Authorization of the Indenture. The
Indenture has been duly authorized, executed and
delivered by the Company and is a valid and
binding agreement of the Company, enforceable in
accordance with its terms, as limited by (i)
bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws
affecting the enforcement of creditors' rights and
(ii) the effect of general principles of equity
(regardless of whether enforceability is
considered in a proceeding in equity or at law).
(xi) Authorization of the Supplemental
Indenture. The Supplemental Indenture has been
duly authorized by the Company, and, when executed
and delivered by the Company and the Trustee, will
constitute a valid and binding agreement of the
Company, enforceable in accordance with its terms,
as limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws affecting the enforcement of
creditors' rights and (ii) the effect of general
principles of equity (regardless of whether
enforceability is considered in a proceeding in
equity or at law).
(xii) Authorization of the Securities.
The Securities have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and the Supplemental
Indenture delivered to and paid for by the Initial
Purchasers in accordance with the terms of the
Purchase Agreement, will be entitled to the
benefits of the Indenture and Supplemental
Indenture and will be valid and binding
obligations of the Company, enforceable in
accordance with their terms, as limited by (i)
bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws
affecting the enforcement of creditors' rights and
(ii) the effect of general principles of equity
(regardless of whether enforceability is
considered in a proceeding in equity or at law).
(xiii) Authorization of the Registration
Rights Agreement. The Registration Rights
Agreement has been duly authorized by the Company,
and, when executed and delivered by the Company,
will constitute a valid and binding agreement of
the Company, enforceable in accordance with its
terms, as limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws affecting the enforcement of
creditors' rights and (ii) the effect of general
principles of equity (regardless of whether
enforceability is considered in a proceeding in
equity or at law); provided that no representation
is made with respect to Section 5 of the
Registration Rights Agreement.
(xiv) Absence of Defaults and Conflicts;
Absence of Further Requirements. The execution
and delivery by the Company of, and the
performance by the Company of its obligations
under, this Agreement, the Indenture, the
Supplemental Indenture, the Securities and the
Registration Rights Agreement will not contravene
any provision of applicable federal or state law
or the articles of incorporation or by-laws of the
Company or any agreement or other instrument
binding upon the Company or any of its
subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any
judgment, order or decree of any federal or state
governmental body, agency or court having
jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order
of or qualification with any federal or state
governmental body or agency is required for the
performance by the Company of its obligations
under this Agreement, the Indenture, the
Supplemental Indenture, the Securities and the
Registration Rights Agreement, except such as may
be required by the securities or Blue Sky laws of
the various states in connection with the offer
and sale of the Securities or by the 1933 Act and
the Trust Indenture Act of 1939, as amended (the
"1939 Act"), in connection with the exchange offer
as contemplated by the Registration Rights
Agreement.
(xv) Absence of Proceedings. There are no
legal or governmental proceedings pending, and the
Company does not know of any proceedings that are
threatened, to
which the Company or any of its
subsidiaries is a party or to which any of the
properties of the Company or any of its
subsidiaries is subject that are required to be
described in the documents incorporated by
reference in the Offering Memorandum and are not
so described or any statutes, regulations,
material contracts or other documents that are
required to be described in the documents
incorporated by reference in the Offering
Memorandum or to be filed or incorporated by
reference as exhibits to such incorporated
documents that are not described, filed or
incorporated as required.
(xvi) Possession of Licenses and Permits.
Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and
has made all declarations and filings with, all
federal, state, local and other governmental,
administrative or regulatory authorities, all self-
regulatory organizations and all courts and other
tribunals, to own, lease, license and use its
properties and assets and to conduct its business
in the manner described in the Offering
Memorandum, except to the extent that the failure
to obtain or file would not have a Material
Adverse Effect.
(xvii) Environmental Laws. The Company
and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and
local laws and regulations relating to the
protection of human health and safety, the
environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses
or other approvals required of them under
applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance
with all terms and conditions of any such permit,
license or approval, except where such
noncompliance with Environmental Laws, failure to
receive required permits, licenses or other
approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a
Material Adverse Effect.
(xviii) Investment Company Act. The
Company is not an "investment company" or an
entity "controlled" by an "investment company", as
such terms are defined in the Investment Company
Act of 1940, as amended.
(xix) Similar Offerings. Neither the
Company nor any of its affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each,
an "Affiliate"), has, directly or indirectly,
solicited any offer to buy, sold or offered to
sell or otherwise negotiated in respect of, or
will solicit any offer to buy, sell or offer to
sell or otherwise negotiate in respect of, in the
United States or to any United States citizen or
resident, any security which is or would be
integrated with the sale of the Securities in a
manner that would require the Securities to be
registered under the 0000 Xxx.
(xx) Rule 144A Eligibility. The Securities
are eligible for resale pursuant to Rule 144A and
will not be, at the Closing Time, of the same
class as securities listed on a
national securities exchange registered under Section 6
of the 1934 Act, or quoted in a U.S. automated
interdealer quotation system.
(xxi) No General Solicitation. None of
the Company, its Affiliates or any person acting
on its or any of their behalf (other than the
Initial Purchasers, as to whom the Company makes
no representation) has engaged or will engage, in
connection with the offering of the Securities, in
any form of general solicitation or general
advertising within the meaning of Rule 502(c)
under the 1933 Act.
(xxii) No Registration Required. Subject
to compliance by the Initial Purchasers with the
representations, warranties and agreements set
forth in Sections 2 and 6 and the procedures and
agreements set forth in Section 6 hereof, it is
not necessary in connection with the offer, sale
and delivery of the Securities to the Initial
Purchasers and to each Subsequent Purchaser in the
manner contemplated by this Agreement and the
Offering Memorandum to register the Securities
under the 1933 Act or to qualify the Indenture
under the 1939 Act.
(xxiii) Reporting Company. The Company is
subject to the reporting requirements of Section
13 or Section 15(d) of the 1934 Act.
(xxiv) No Directed Selling Efforts. With
respect to those Securities sold in reliance on
Regulation S, (A) none of the Company, its
Affiliates or any person acting on its or their
behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has
engaged or will engage in any directed selling
efforts within the meaning of Regulation S and (B)
each of the Company and its Affiliates and any
person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company
makes no representation) has complied and will
comply with the offering restrictions requirement
of Regulation S.
(xxv) No Stabilization or Manipulation.
None of the Company, its subsidiaries, or any of
their respective officers, directors or
controlling persons has taken, directly or
indirectly, any action designed to cause or to
result in, or that has constituted or might
reasonably be expected to constitute, the
stabilization or manipulation of the price of any
security of the Company to facilitate the sale or
resale of the Securities.
(xxvi) Year 2000. The Company has reviewed
its operations and that of its subsidiaries to
evaluate the extent to which the business or
operations of the Company or any of its
subsidiaries will be affected by the Year 2000
Problem (that is, any significant risk that
computer hardware or software applications used by
the Company and its subsidiaries will not, in the
case of dates or time periods occurring after
December 31, 1999, function at least as
effectively as in the case of dates or time
periods occurring prior to January 1, 2000); as a
result of such review, (i) the Company has no
reason to believe, and does not believe, that (A)
there are any issues related to the Company's
preparedness to address the Year 2000 Problem that
are of a character required to be described or
referred to in the documents incorporated by
reference in the Offering Memorandum which have
not been accurately described in such documents or
the Offering Memorandum and (B) the Year 2000
Problem will have a Material Adverse Effect or
result in any material loss or interference with
the business or operations of the Company and its
subsidiaries, taken as a whole; and (ii) the
Company reasonably believes, after due inquiry,
that the suppliers, vendors, customers or other
material third parties used or served by the
Company and such subsidiaries are addressing or
will address the Year 2000 Problem in a timely
manner, except to the extent that a failure to
address the Year 2000 Problem by any supplier,
vendor, customer or material third party would not
have a Material Adverse Effect.
(b) Officer's Certificates. Any certificate
signed by any officer of the Company or any of its
subsidiaries delivered to the Representative(s) or to
counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company to each
Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial
Purchasers; Closing.
(a) Securities. On the basis of the
representations and warranties herein contained and
subject to the terms and conditions herein set forth,
the Company agrees to sell to each Initial Purchaser,
severally and not jointly, and each Initial Purchaser,
severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in
Schedule A opposite the name of such Initial Purchaser,
plus any additional principal amount of Securities
which such Initial Purchaser may become obligated to
purchase pursuant to the provisions of Section 10
hereof.
(b) Payment. Payment of the purchase price for,
and delivery of certificates for, the Securities shall
be made at the office of Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the
Representative(s) and the Company, at 9:00 A.M.
(eastern time) on the third business day after the date
hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later
than ten business days after such date as shall be
agreed upon by the Representative(s) and the Company
(such time and date of payment and delivery being
herein called the "Closing Time").
Payment shall be made to the Company by wire
transfer of immediately available funds to a bank
account designated by the Company, against delivery to
the Representative(s) for the respective accounts of
the Initial Purchasers of certificates for the
Securities to be purchased by them. It is understood
that each Initial Purchaser has authorized the
Representative(s), for its account, to accept delivery
of, receipt for, and make payment of the purchase price
for, the Securities which it has agreed to purchase.
Xxxxxxx Xxxxx, individually and not as representative
of the Initial Purchasers, may (but shall not be
obligated to) make payment of the purchase price for
the Securities to be purchased by any Initial Purchaser
whose funds have not been received by the Closing Time,
but such payment shall not relieve such Initial
Purchaser from its obligations hereunder.
(c) Denominations; Registration. Certificates
for the Securities shall be in such denominations
($100,000 or integral multiples of $1,000 in excess
thereof) and registered in such names as the
Representative(s) may request in writing at least one
full business day before the Closing Time. The
certificates representing the Securities shall be made
available for examination and packaging by the Initial
Purchasers in The City of New York not later than 10:00
A.M. on the last business day prior to the Closing
Time.
SECTION 3. Covenants of the Company. The
Company covenants with each Initial Purchaser as
follows:
(a) Offering Memorandum. The Company, as
promptly as possible, will furnish to each Initial
Purchaser, without charge, such number of copies of the
Preliminary Offering Memorandum, the Final Offering
Memorandum and any amendments and supplements thereto
and documents incorporated by reference therein as such
Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The
Company will immediately notify each Initial Purchaser,
and confirm such notice in writing, of (x) any filing
made by the Company of information relating to the
offering of the Securities with any securities exchange
or any other regulatory body in the United States or
any other jurisdiction, and (y) prior to the completion
of the placement of the Securities by the Initial
Purchasers as evidenced by a notice in writing from the
Initial Purchasers to the Company, any changes, or any
development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its
subsidiaries, taken as a whole, that is material and
adverse and which (i) make any statement in the
Offering Memorandum false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or
if during such time any event shall occur as a result
of which it is necessary, in the reasonable opinion of
any of the Company, its counsel, the Initial Purchasers
or counsel for the Initial Purchasers, to amend or
supplement the Final Offering Memorandum in order that
the Final Offering Memorandum not include any untrue
statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein not misleading in the light of the
circumstances then existing, the Company will forthwith
amend or supplement the Final Offering Memorandum by
preparing and furnishing to each Initial Purchaser an
amendment or amendments of, or a supplement or
supplements to, the Final Offering Memorandum (in form
and substance satisfactory in the reasonable opinion of
counsel for the Initial Purchasers) so that, as so
amended or supplemented, the Final Offering Memorandum
will not include an 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 existing at the time it is delivered to a
Subsequent Purchaser, not misleading.
(c) Amendment to Offering Memorandum and
Supplements. The Company will advise each Initial
Purchaser promptly of any proposal to amend or
supplement the Offering Memorandum and will not effect
such amendment or supplement without the consent of the
Initial Purchasers. Neither the consent of the Initial
Purchasers, nor the Initial Purchaser's
delivery of any
such amendment or supplement, shall constitute a waiver
of any of the conditions set forth in Section 5 hereof.
(d) Qualification of Securities for Offer and
Sale. The Company will use its best efforts, in
cooperation with the Initial Purchasers, to qualify the
Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions
as the Representative(s) may reasonably designate and
will maintain such qualifications in effect as long as
required for the sale of the Securities; provided,
however, that the Company shall not be obligated to
file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is
not otherwise so subject.
(e) Rating of Securities. The Company shall
take all reasonable action necessary to enable Standard
& Poor's Ratings Services, a division of XxXxxx-Xxxx,
Inc. ("S&P"), and Xxxxx'x Investors Service Inc.
("Moody's") to provide their respective credit ratings
of the Securities.
(f) DTC. The Company will cooperate with the
Representative(s) and use its best efforts to permit
the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the
net proceeds received by it from the sale of the
Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds".
(h) Restriction on Sale of Securities. During a
period of 60 days from the date of the Offering
Memorandum, the Company will not, without the prior
written consent of Xxxxxxx Xxxxx, directly or
indirectly, issue, sell, offer or agree to sell, grant
any option for the sale of, or otherwise dispose of,
any other debt securities of the Company or securities
of the Company that are convertible into, or
exchangeable for, the Securities or such other debt
securities.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses
incident to the performance of its obligations under
this Agreement, including (i) the preparation,
printing, delivery to the Initial Purchasers and any
filing of the Offering Memorandum (including financial
statements and any schedules or exhibits and any
document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the preparation,
printing and delivery to the Initial Purchasers of this
Agreement, any Agreement among Initial Purchasers, the
Indenture and such other documents as may be required
in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates
for the Securities to the Initial Purchasers, including
any transfer taxes, any stamp or other duties payable
upon the sale, issuance and delivery of the Securities
to the Initial Purchasers and any charges of DTC in
connection therewith, (iv) the fees and disbursements
of the Company's
counsel, accountants and other
advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of
Section 3(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the
Initial Purchasers in connection therewith and in
connection with the preparation of the Blue Sky Survey,
any supplement thereto, (vi) the fees and expenses of
the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the
Indenture and the Securities, and (vii) any fees
payable in connection with the rating of the
Securities.
(b) Termination of Agreement. If this Agreement
is terminated by the Representative(s) in accordance
with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Initial
Purchasers for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of
counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers'
Obligations. The obligations of the several Initial
Purchasers hereunder are subject to the accuracy of the
representations and warranties of the Company contained
in Section 1 hereof or in certificates of any officer
of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the performance
by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Opinion of Counsel for Company. At the
Closing Time, the Representative(s) shall have received
the favorable opinion, dated as of the Closing Time, of
Xxxxxxx & Xxxx, S.C., counsel for the Company, in form
and substance satisfactory to counsel for the Initial
Purchasers, together with signed or reproduced copies
of such letter for each of the other Initial Purchasers
to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the Initial Purchasers may
reasonably request.
(b) Opinion of General Counsel for Company. At
the Closing Time, the Representative(s) shall have
received the favorable opinion, dated as of the Closing
Date, of Xxxxxx X. Xxxxx, Esq., General Counsel for the
Company, in form and substance satisfactory to counsel
for the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other
Initial Purchasers to the effect set forth in Exhibit B
hereto and to such further effect as counsel to the
Initial Purchasers may reasonably request.
(c) Opinion of Counsel for Initial Purchasers.
At the Closing Time, the Representative(s) shall have
received the favorable opinion, dated as of the Closing
Time, of Shearman & Sterling, counsel for the Initial
Purchasers, together with signed or reproduced copies
of such letter for each of the other Initial Purchasers
with respect to the matters set forth in (iii) through
(vii), inclusive, (xii) and (xiv) of Exhibit A hereto.
In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal
law of the United States, upon the opinions of counsel
satisfactory to the Representative(s). Such counsel
may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At the Closing Time,
there shall not have been, since the date hereof or
since the respective dates as of which information is
given in the Offering Memorandum, any change, or any
development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its
subsidiaries, taken as a whole, that is material and
adverse, and the Representative(s) shall have received
a certificate of the President or a Vice President of
the Company and of the chief financial or chief
accounting officer of the Company, dated as of the
Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations
and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made
at and as of the Closing Time, and (iii) the Company
has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at
or prior to the Closing Time.
(e) Accountants' Comfort Letter. At the time of
the execution of this Agreement, the Representative(s)
shall have received from Ernst & Young LLP a letter
dated such date, in form and substance satisfactory to
the Representative(s), together with signed or
reproduced copies of such letter for each of the other
Initial Purchasers containing statements and
information of the type ordinarily included in
accountants' "comfort letters" to Initial Purchasers
with respect to the financial statements and certain
financial information contained in the Offering
Memorandum.
(f) Bring-down Comfort Letter. At the Closing
Time, the Representative(s) shall have received from
Ernst & Young LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (d)
of this Section, except that the specified date
referred to shall be a date not more than three
business days prior to the Closing Time.
(g) Maintenance of Rating. At the Closing Time,
the Securities shall be rated at least A3 by Moody's
and BBB+ by S&P, and since the date of this Agreement,
there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the
Company's other securities by any "nationally
recognized statistical rating agency", as that term is
defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such securities
rating agency shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of the Securities or any of
the Company's other securities.
(h) Additional Documents. At the Closing Time,
counsel for the Initial Purchasers shall have been
furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and
substance to the Representative(s) and counsel for the
Initial Purchasers.
(i) Termination of Agreement. If any condition
specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement
may be terminated by the
Representative(s) by notice to
the Company at any time at or prior to the Closing
Time, and such termination shall be without liability
of any party to any other party except as provided in
Section 4 and except that Sections 1, 7 and 8 shall
survive any such termination and remain in full force
and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the
Initial Purchasers and the Company hereby establish and
agree to observe the following procedures in connection
with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified
Institutional Buyers and Institutional Accredited
Investors. Offers and sales of the Securities
have been and shall only be made (A) to persons
whom the offeror or seller reasonably believes to
be qualified institutional buyers, as defined in
Rule 144A under the 1933 Act ("Qualified
Institutional Buyers"), (B) to a limited number of
persons who are institutional accredited
investors, as such term is defined in Rule
501(a)(1), (2), (3) and (7) under the 1933 Act,
that the offeror reasonable believes to be and,
with respect to sales and deliveries, that are
such institutional accredited investors
("Institutional Accredited Investors"), or (C) non-
U.S. persons outside the United States, as defined
in Regulation S under the 1933 Act, to whom the
offeror or seller reasonably believes offers and
sales of the Securities may be made in reliance
upon Regulation S under the 1933 Act. Each
Initial Purchaser severally agrees that it will
not offer, sell or deliver any of the Securities
in any jurisdiction outside the United States
except under circumstances that will result in
compliance with the applicable laws thereof, and
that it will take at its own expense whatever
action is required to permit its purchase and
resale of the Securities in such jurisdictions.
(ii) No General Solicitation. No general
solicitation or general advertising (within the
meaning of Rule 502(c) under the 0000 Xxx) has
been or will be used in the United States in
connection with the offering or sale of the
Securities.
(iii) No Directed Selling Efforts. With
respect to those Securities sold in reliance on
Regulation S, (A) none of the Initial Purchasers
or any person acting on its behalf has engaged or
will engage in any directed selling efforts within
the meaning of Regulation S and (B) each of the
Initial Purchasers and any person acting on its
behalf has complied and will comply with the
offering restrictions requirement of Regulation S.
(iv) Purchases by Non-Bank Fiduciaries. In
the case of a non-bank Subsequent Purchaser of a
Security acting as a fiduciary for one or more
third parties, each third party shall, in the
judgment of the applicable Initial Purchaser, be a
Qualified Institutional Buyer or an Institutional
Accredited Investor or a non-U.S. person outside
the United States.
(v) Subsequent Purchaser Notification.
Each Initial Purchaser will take reasonable steps
to inform, and cause each of its U.S. Affiliates
to take reasonable steps to inform, persons
acquiring Securities from such Initial Purchaser
or affiliate, as the case may be, in the United
States that the Securities (A) have not been and
will not be registered under the 1933 Act, (B) are
being sold to them without registration under the
1933 Act in reliance on Rule 144A or in accordance
with another exemption from registration under the
1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1)
to the Company, (2) outside the United States in
accordance with Regulation S, or (3) inside the
United States in accordance with (x) Rule 144A to
a person whom the seller reasonably believes is a
Qualified Institutional Buyer that is purchasing
such Securities for its own account or for the
account of a Qualified Institutional Buyer to whom
notice is given that the offer, sale or transfer
is being made in reliance on Rule 144A or (y)
pursuant to another available exemption from
registration under the 1933 Act.
(vi) Minimum Denomination Amount. No sale
of the Securities to any one Subsequent Purchaser
will be in denominations less than U.S. $100,000
and integral multiples of $1,000. If the
Subsequent Purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom
it is acting must purchase the Securities in
denominations not less than U.S. $100,000 and
integral multiples of $1,000.
(vii) Restrictions on Transfer. The
transfer restrictions and the other provisions set
forth in the Offering Memorandum under the heading
"Notice to Investors", including the legend
required thereby, shall apply to the Securities
except as otherwise agreed by the Company and the
Initial Purchasers.
(b) Covenants of the Company. The Company
covenants with each Initial Purchaser as follows:
(i) Integration. The Company agrees that
it will not and will cause its Affiliates not to,
directly or indirectly, solicit any offer to buy,
sell or make any offer or sale of, or otherwise
negotiate in respect of, securities of the Company
of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the
1933 Act, such offer or sale would render invalid
(for the purpose of (i) the sale of the Securities
by the Company to the Initial Purchasers, (ii) the
resale of the Securities by the Initial Purchasers
to Subsequent Purchasers or (iii) the resale of
the Securities by such Subsequent Purchasers to
others) the exemption from the registration
requirements of the 1933 Act provided by Section
4(2) thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(ii) Rule 144A Information. The Company
agrees that, in order to render the Securities
eligible for resale pursuant to Rule 144A under
the 1933 Act, while any of the Securities remain
outstanding, it will make available, upon request,
to any holder of Securities or prospective
purchasers of Securities the information specified
in Rule
144A(d)(4), unless the Company furnishes
information to the Commission pursuant to Section
13 or 15(d) of the 1934 Act.
(iii) Restriction on Resales. Until the
expiration of two years after the original
issuance of the Securities, the Company will not,
and will cause its Affiliates not to, resell any
Securities which are "restricted securities" (as
such term is defined under Rule 144(a)(3) under
the 1933 Act), whether as beneficial owner or
otherwise (except as agent acting as a securities
broker on behalf of and for the account of
customers in the ordinary course of business in
unsolicited broker's transactions).
(c) Qualified Institutional Buyer. Each Initial
Purchaser severally and not jointly represents and
warrants to, and agrees with, the Company that it is a
Qualified Institutional Buyer and an "accredited
investor" within the meaning of Rule 501(a) under the
1933 Act (an "Accredited Investor").
(d) Resale Pursuant to Rule 903 of Regulation S
or Rule 144A. Each Initial Purchaser understands that
the Securities have not been and will not be registered
under the 1933 Act and may not be offered or sold
within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with
Regulation S under the 1933 Act or pursuant to an
exemption from the registration requirements of the
1933 Act. Each Initial Purchaser severally represents
and agrees, that, except as permitted by Section 6(a)
above, it has offered and sold Securities and will
offer and sell Securities (i) as part of their
distribution at any time and (ii) otherwise until forty
days after the later of the date upon which the
offering of the Securities commences and the Closing
Time, only in accordance with Rule 903 of Regulation S,
Rule 144A under the 1933 Act or another applicable
exemption from the registration requirements of the
1933 Act. Accordingly, neither the Initial Purchasers,
their affiliates nor any persons acting on their behalf
have engaged or will engage in any directed selling
efforts with respect to Securities sold hereunder
pursuant to Regulation S, and the Initial Purchasers,
their affiliates and any person acting on their behalf
have complied and will comply with the offering
restriction requirements of Regulation S. Each Initial
Purchaser severally agrees that, at or prior to
confirmation of a sale of Securities pursuant to
Regulation S it will have sent to each distributor,
dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it or
through it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not
been registered under the United States
Securities Act of 1933 (the "Securities Act")
and may not be offered or sold within the
United States or to or for the account or
benefit of U.S. persons (i) as part of their
distribution at any time and (ii) otherwise
until forty days after the later of the date
upon which the offering of the Securities
commenced and the date of closing, except in
either case in accordance with Regulation S
or Rule 144A under the Securities Act. Terms
used above have the meaning given to them by
Regulation S."
SECTION 7. Indemnification and Contribution.
The Company agrees to indemnify and hold harmless
each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of
either Section 15 of the 1933 Act or Section 20 of the
1934 Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in
connection with defending or investigating any such
action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained
in any Preliminary Offering Memorandum or the Final
Offering Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or
supplements thereto), or caused by any omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged
untrue statement or omission based upon information
relating to any Initial Purchaser furnished to the
Company in writing by such Initial Purchaser through
you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any
Preliminary Offering Memorandum shall not inure to the
benefit of any Initial Purchaser from whom the person
asserting any such losses, claims, damages or
liabilities purchased Securities, or any person
controlling such Initial Purchaser, if (i) a copy of
the Final Offering Memorandum (as then amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or
given by or on behalf of such Initial Purchaser to such
person, at or prior to the written confirmation of the
sale of the Securities to such person, (ii) such person
maintains a customer account with an address in the
United States, and (iii) the Final Offering Memorandum
(as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or
liabilities.
Each Initial Purchaser agrees, severally and
not jointly, to indemnify and hold harmless the
Company, the directors of the Company, and each person,
if any, who controls the Company within the meaning of
either Section 15 of the 1933 Act or Section 20 of the
1934 Act from and against any and all losses, claims,
damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in
connection with defending or investigating any such
action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained
in any Preliminary Offering Memorandum or the Final
Offering Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or
supplements thereto), or caused by any omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, but only with
reference to information relating to such Initial
Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use in any
Preliminary Offering Memorandum or the Final Offering
Memorandum or any amendments or supplements thereto.
In case any proceeding (including any
governmental investigation) shall be instituted
involving any person in respect of which indemnity may
be sought pursuant to any of the two preceding
paragraphs, such person (the "indemnified party") shall
promptly notify the
person against whom such indemnity
may be sought (the "indemnifying party") in writing
(but the failure to so notify the indemnifying party
will not relieve it from any liability which it may
have to any indemnified party otherwise than under this
Section 7) and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel
would be inappropriate due to actual or potential
differing interests between them. It is understood
that the indemnifying party shall not, in respect of
the legal expenses of any indemnified party in
connection with any proceeding or related proceedings
in the same jurisdiction, be liable for (a) the fees
and expenses of more than one separate firm (in
addition to any local counsel) for all Initial
Purchasers and all persons, if any, who control any
Initial Purchaser within the meaning of either Section
15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (x)
the fees and expenses of more than one separate firm
(in addition to any local counsel) for the Company, its
directors, and each person, if any, who controls the
Company within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate
firm for the Initial Purchasers and such control
persons of Initial Purchasers, such firm shall be
designated in writing by Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated. In the case of any such separate
firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying
party shall not be liable for any settlement of any
proceeding effected without its 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 loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party
shall, without the prior written consent of the
indemnified party, which consent shall not be
unreasonably withheld, effect any settlement of any
pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such
indemnified party, unless such settlement (i) includes
an unconditional release of such indemnified party from
all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement
as to an admission of fault, culpability or failure to
act by or on behalf of any indemnified party.
If the indemnification provided for in the
first or second paragraph of this Section 7 is
unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party or
parties on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or
parties on the other hand in connection with the
statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative
benefits received by the Company on the one hand and
the Initial Purchasers on the other hand in connection
with the offering of the Securities shall be deemed to
be in the same respective proportions as the net
proceeds from the offering of the Securities (before
deducting expenses) received by the Company and the
total underwriting discounts and commissions received
by the Initial Purchasers, in each case as set forth in
the table on the cover of the Final Offering
Memorandum, bear to the aggregate initial offering
price of the Securities. The relative fault of the
Company on the one hand and the Initial Purchasers on
the other hand 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 Initial
Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or
prevent such statement or omission. The Initial
Purchasers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to
the respective principal amount of Securities they have
purchased hereunder, and not joint.
The Company and the Initial Purchasers agree
that it would not be just or equitable if contribution
pursuant to this Section 7 were determined by pro rata
allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method
of allocation that does not take account of the
equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject
to the limitations set forth above, 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 Section 7, no Initial Purchaser 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
that such Initial Purchaser 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 0000 Xxx) shall be
entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 7 are not
exclusive and
shall not limit any rights or remedies
which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution provisions
contained in this Section 7 and the representations and
warranties of the Company contained in this Agreement
shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any
Initial Purchaser or any person controlling any Initial
Purchaser, or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance
of and payment for any of the Securities.
SECTION 8. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of
its subsidiaries submitted pursuant hereto shall remain
operative and in full force and effect, regardless of
any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of
the Company, and shall survive delivery of the
Securities to the Initial Purchasers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative(s)
may terminate this Agreement, by notice to the Company,
at any time at or prior to the Closing Time (i) if
there has been, since the time of execution of this
Agreement or since the respective dates as of which
information is given in the Offering Memorandum, any
change, or any development involving a prospective
change, in the condition, financial or otherwise, or in
the earnings, business affairs or operations of the
Company and its subsidiaries, taken as a whole, that is
material and adverse, or (ii) if there has occurred any
material adverse change in the financial markets in the
United States or the international financial markets,
any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or development
involving a prospective change in national or
international political, financial or economic
conditions, in each case the effect of which is such as
to make it, in the reasonable judgment of the
Representative(s), impracticable to market the
Securities or to enforce contracts for the sale of the
Securities on the terms and in the manner contemplated
in the Offering Memorandum, or (iii) if trading in any
securities of the Company has been suspended or
materially limited by the Commission or if trading
generally on the American Stock Exchange or the New
York Stock Exchange or in the NASDAQ System has been
suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges
for prices have been required, by any of said exchanges
or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any
other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is
terminated pursuant to this Section, such termination
shall be without liability of any party to any other
party except as provided in Section 4 hereof, and
provided further that Sections 1, 7 and 8 shall survive
such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Initial
Purchasers. If one or more of the Initial Purchasers
shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the
Representative(s) shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the
non-defaulting Initial Purchasers, or any other initial
purchasers, to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if,
however, the Representative(s) shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities
does not exceed 10% of the aggregate principal
amount of the Securities to be purchased
hereunder, each of the non-defaulting Initial
Purchasers shall be obligated, severally and not
jointly, to purchase the full amount thereof in
the proportions that their respective underwriting
obligations hereunder bear to the underwriting
obligations of all non-defaulting Initial
Purchasers, or
(b) if the number of Defaulted Securities
exceeds 10% of the aggregate principal amount of
the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the
part of any non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall
relieve any defaulting Initial Purchaser from liability
in respect of its default.
In the event of any such default which does not
result in a termination of this Agreement, either the
Representative(s) or the Company shall have the right
to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in
the Offering Memorandum or in any other documents or
arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an
Initial Purchaser under this Section.
SECTION 11. Notices. All notices and other
communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication.
Notices to the Initial Purchasers shall be directed to
the Representative(s) at Xxxxx Xxxxx, Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxx
Xxxx; notices to the Company shall be directed to it at
Xxxx'x Corporation, N56 W 00000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx Xxxxx, Xxxxxxxxx 00000, attention of Xxxxxx
Xxxxx, with a copy to Xxxxxxx & Xxxx, S.C., 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000,
attention of Xxxxx X. Xxxxxxxxxxxx.
SECTION 12. Parties. This Agreement shall inure
to the benefit of and be binding upon the Initial
Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Initial
Purchasers and the Company and their respective
successors and the controlling persons and officers and
directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right,
remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Initial
Purchasers and the Company and their respective
successors, and said controlling persons and officers
and directors and their heirs and legal
representatives, and for the benefit of no other
person, firm or corporation. No purchaser of
Securities from any Initial Purchaser shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and
Section headings herein and the Table of Contents are
for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return
to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a
binding agreement between the Initial Purchasers and
the Company in accordance with its terms.
Very truly yours,
XXXX'X CORPORATION
By: /s/R. Xxxxxxxx Xxxxxxxxxx
Name: R.Xxxxxxxx Xxxxxxxxxx
Title: Vice Chairman and
Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
BNY CAPITAL MARKETS, INC.
BANC ONE CAPITAL MARKETS, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ A. Xxxxx Xxxxxx
Authorized Signatory
For itself and as Representative of the other
Initial Purchasers named in Schedule A hereto.
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Securities
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $124,000,000
Xxxxxx Xxxxxxx & Co. Incorporated 64,000,000
BNY Capital Markets, Inc. 6,000,000
Banc One Capital Markets, Inc. 6,000,000
Total $200,000,000
SCHEDULE B
XXXX'X CORPORATION
$200,000,000 7 1/4% Debentures due 2029
1. The initial public offering price of the
Securities shall be 98.629% of the principal amount
thereof, plus accrued interest, if any, from the date
of issuance.
2. The purchase price to be paid by the Initial
Purchasers for the Securities shall be 97.754% of the
principal amount thereof.
3. The interest rate on the Securities shall be 7 1/4% per annum.
4. The Securities are redeemable prior to
maturity as set forth in the Offering Memorandum.
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) the Company is validly existing as a corporation
in good standing under the laws of the State of
Wisconsin and has the corporate power and authority to
own its property and to conduct its business as
described in the Offering Memorandum;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and (assuming due
authorization, execution and delivery thereof by the
Trustee), constitutes a valid and binding agreement of
the Company, enforceable in accordance with its terms;
(iv) the Supplemental Indenture has been duly
authorized, executed and delivered by the Company and
(assuming due authorization, execution and delivery
thereof by the Trustee), constitutes a valid and
binding agreement of the Company, enforceable in
accordance with its terms;
(v) the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and the Supplemental
Indenture, and delivered to and paid for by the Initial
Purchasers in accordance with the terms of the Purchase
Agreement, will be entitled to the benefits of the
Indenture and the Supplemental Indenture and will be
valid and binding obligations of the Company,
enforceable in accordance with their terms;
(vi) the Registration Rights Agreement has been
duly authorized, executed and delivered by the Company
and constitutes a valid and binding agreement of the
Company, enforceable in accordance with its terms;
(vii) the Securities, the Indenture and the
Supplemental Indenture conform in all material respects
to the descriptions thereof contained in the Offering
Memorandum;
(viii) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture, the
Supplemental Indenture and the Registration Rights
Agreement will not contravene any provision of the law
of the State of Wisconsin or the federal laws of the
United States applicable to the Company or the articles
of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its
subsidiaries which has been identified to such counsel
by the Company as one of such agreements or instruments
that is material to the Company and its subsidiaries,
taken as a whole, or, to the best of such counsel's
knowledge, without independent investigation other than
inquiries of responsible officers of the Company, any
judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization
or order of or qualification with any federal or State
of Wisconsin governmental body or agency is required
for the performance by the Company of its obligations
under this Agreement or the Indenture or the
Supplemental Indenture or the Registration Rights
Agreement, except such as have been obtained or may be
required by securities or Blue Sky laws of the various
states in connection with the offer and sale of the
Securities or by the 1933 Act and the Trust Indenture
Act of 1939, as amended (the "1939 Act"), in connection
with the exchange offer as contemplated by the
Registration Rights Agreement;
(ix) the statements (1) in the Offering Memorandum
under the caption "Description of Debentures" (2) to
such counsel's knowledge, after due inquiry of
responsible officers of the Company, under the caption
"Executive Compensation-Employment Agreements" and
"-Other Agreements" in the Company's Proxy Statement
for the Annual Meeting of Shareholders held on May 25,
1999, in each case insofar as such statements
constitute summaries of the legal matters or documents
referred to therein, fairly present the information
called for with respect to such legal matters and
documents and fairly summarize the matters referred to
therein;
(x) the Company is not an "investment company" or
an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of
1940, as amended;
(xi) the statements in the Offering Memorandum
under the caption "Certain United States Tax
Consequences to Non-United States Holders" insofar as
such statements constitute a summary of the United
States federal tax laws referred to therein, are
accurate and fairly summarize the United States federal
tax laws referred to therein;
(xii) based upon the representations,
warranties and agreements of the Company and the
Initial Purchasers in the Purchase Agreement, it is not
necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers
under the Purchase Agreement or in connection with the
initial resale of such Securities by the Initial
Purchasers in accordance with the Purchase Agreement to
register the Securities under the 1933 Act or to
qualify the Indenture or the Supplemental Indenture
under the 1939 Act, it being understood that such
counsel need express no opinion as to any subsequent
resales of any Security;
(xiii) each document filed pursuant to the 1934
Act and incorporated by reference in the Offering
Memorandum complied when so filed as to form in all
material respects with the 1934 Act and the applicable
rules and regulations of the Commission thereunder and
such counsel need not express any opinion as to the
financial statements, schedules and other financial
data included in or excluded from such documents filed
pursuant to the 1934 Act and such counsel need not
assume any responsibility for the accuracy,
completeness or fairness of the statements contained in
such documents filed pursuant to the 1934 Act (other
than as specified in
subparagraph (ix) above insofar
as the statements referred to therein relate to
provisions of documents and other legal matters); and
(xiv) in addition, such opinion shall state that
such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants
for the Company, and with your representatives and your
counsel at which the contents of the Offering
Memorandum and related matters were discussed and,
although such counsel need not pass upon or assume any
responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering
Memorandum and need not make any independent check or
verification thereof (other than as specified in
subparagraphs (vii), (ix) and (xi) above insofar as the
captions referred to therein relate to provisions of
documents), on the basis of the foregoing, no facts
have come to the attention of such counsel which have
led such counsel to believe that the Offering
Memorandum, as of its date and as of the Closing Date,
contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in light of the
circumstances under which they were made, not
misleading, except that such counsel need not express
any opinion as to the financial statements, schedules
and other financial data included in or excluded from
the Offering Memorandum. Such counsel may also state in
such opinion that (i) such opinion is limited to the
laws of the United States, the State of Wisconsin and
the General Corporation Law of the State of Delaware,
and (ii) each of subparagraphs (iii), (iv), (v) and
(vi) is limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws affecting the enforcement of creditors'
rights and (ii) the effect of general principles of
equity (regardless of whether enforceability is
considered in a proceeding in equity or at law),
including without limitation concepts of materiality,
reasonableness, good faith and fair dealing. In
applying such principles, a court, among other things,
might not allow the Trustee to take action based upon
the occurrence of a default deemed immaterial, and such
counsel may assume that the Trustee will at all times
act in good faith, in a commercially reasonable manner
and in compliance with all laws and regulations. Such
counsel need not express an opinion in subparagraph
(vi) as to the enforceability of Section 5 of the
Registration Rights Agreement. Such counsel may assume
that the laws of the State of New York are identical to
the laws of the State of Wisconsin. (xiv)
Exhibit B
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) the Company is duly qualified to transact
business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership
or leasing of property requires such qualification,
except to the extent that the failure to be so
qualified or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) each of Xxxx'x Department Stores, Inc.,
Kohl's Receivables Corporation, Kohl's Investment
Corp., Xxxx'x Pennsylvania, Inc. and Kohl's Illinois,
Inc. is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that
the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(iii) each of Xxxx'x Department Stores, Inc.,
Kohl's Receivables Corporation, Kohl's Investment
Corp., Xxxx'x Pennsylvania, Inc. and Kohl's Illinois,
Inc. is validly existing as a corporation in good
standing under the laws of its state of incorporation,
and has the corporate power and authority to own its
property and to conduct its business as described in
the Offering Memorandum;
(iv) the statements, to such counsel's knowledge,
after due inquiry, in "Item 3 - Legal Proceedings" of
the Company's Annual Report on Form 10-K for the fiscal
year ended January 30, 1999, insofar as such statements
constitute summaries of the legal matters or
proceedings referred to therein, fairly present the
information called for with respect to such legal
matters and proceedings and fairly summarize the
matters referred to therein; and
(v) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or
threatened to which the Company or any of its
subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is
subject that is required to be described in the
documents incorporated by reference in the Offering
Memorandum and is not so described or of any statutes,
regulations, material contracts or other documents that
are required to be described in the documents
incorporated by reference in the Offering Memorandum or
to be filed or incorporated by reference as exhibits to
such incorporated documents that are not described,
filed or incorporated as required.
Annex A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
