EXHIBIT 1
XXXX XXXXX, INC.
(a Maryland corporation)
Debt Securities
FORM OF UNDERWRITING AGREEMENT
To the Underwriters
to be named in the applicable
Pricing Agreement supplemental hereto
Dear Sirs:
Xxxx Xxxxx, Inc., a Maryland corporation (the "Company"),
proposes to sell up to $________ aggregate principal amount, or its equivalent
based on the applicable exchange rate at the time of offering, in such foreign
currencies or units of two or more thereof as the Company shall designate at the
time of offering, of its senior debt securities ("Senior Debt Securities"), and
its subordinated debt securities ("Subordinated Debt Securities," and, together
with the Senior Debt Securities, the "Debt Securities"). Unless otherwise
specified in the applicable Pricing Agreement (as defined below), the Senior
Debt Securities are to be issued under an indenture (the "Senior Indenture")
between the Company and The Bank of New York, as trustee (the "Senior Debt
Trustee"). Unless otherwise specified in the applicable Pricing Agreement, the
Subordinated Debt Securities are to be issued under an indenture (the
"Subordinated Indenture") between the Company and The Bank of New York, as
trustee (the "Subordinated Debt Trustee"). The Senior Indenture and the
Subordinated Indenture are collectively referred to herein as the "Indentures"
and the Senior Debt Trustee and the Subordinated Debt Trustee are collectively
referred to herein as the "Trustees." Each issue of Debt Securities may vary,
where applicable, as to aggregate principal amount, maturity, interest rate or
rates and timing of payments thereof, redemption provisions, conversion
provisions and sinking fund requirements, if any, and any other variable terms
which the applicable Indenture contemplates may be set forth in the Debt
Securities as issued from time to time. As used herein, "Securities" shall mean
the Debt Securities covered by the applicable Pricing Agreement.
Whenever the Company determines to make an offering of Debt
Securities, it will enter into an agreement (a "Pricing Agreement") providing
for the sale of such Securities to, and the purchase and offering thereof by,
the underwriter or underwriters named therein (the
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"Underwriters" or "you," which terms shall include the underwriter or
underwriters named therein whether acting alone in the sale of Securities or as
members of an underwriting syndicate and any underwriters substituted pursuant
to Section 10 hereof). The Pricing Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. The Pricing
Agreement relating to each offering of Securities shall specify such applicable
information as is indicated in Exhibit A hereto. Each offering of Securities
will be governed by this Agreement, as supplemented by the applicable Pricing
Agreement, and this Agreement and such Pricing Agreement shall inure to the
benefit of and be binding upon each Underwriter participating in the offering of
such Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No. ______)
and Post-Effective Amendment No. 1 to its registration statement on Form S-3
(No. 333-00151) relating to the Debt Securities and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of 1933 (the
"1933 Act") and the rules and regulations thereunder (the "1933 Act
Regulations"), and has filed such amendments thereto as may have been required
to the date hereof. Such registration statements as amended have been declared
effective by the Commission, and the respective Indentures have been qualified
under the Trust Indenture Act of 1939 (the "1939 Act") and the rules and
regulations of the Commission thereunder (collectively, the "1939 Act
Regulations"). Such registration statements as amended and the prospectus
relating to the sale of Debt Securities by the Company constituting a part
thereof, including all documents incorporated therein by reference, as from time
to time amended or supplemented pursuant to the Securities Exchange Act of 1934
(the "1934 Act"), the 1933 Act or otherwise, are collectively referred to herein
as the "Registration Statement" and the "Prospectus," respectively; provided,
however, that a supplement of the Prospectus contemplated by Section 3(a) hereof
and any term sheet as contemplated by Rule 434 of the 1933 Act Regulations (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the offering of Securities to which it relates.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
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SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as
of the date hereof and as of the date of the execution of the Pricing Agreement
(such latter date being hereinafter referred to as the "Representation Date") as
follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and at the time the Registration Statement became
effective and as of the applicable Representation Date, the
Registration Statement and the Prospectus complied in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations, and did not,
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. The Prospectus, at the time
the Registration Statement became effective and as of the applicable
Representation Date and at the Closing Time referred to in Section 2,
did not, and 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, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter expressly for use in the
Registration Statement or the Prospectus (or to that part of the
Registration Statement that shall constitute the Statement of
Eligibility under the 1939 Act (Form T-1) of the respective Trustees).
(ii) The Accountants who certified the financial statements
and supporting schedules incorporated in the Registration Statement are
independent public accountants for the Company as required by the 1933
Act and the 1933 Act Regulations.
(iii) The financial statements, including the notes thereto,
incorporated in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved; and the supporting
schedules incorporated in the Registration Statement present fairly the
information required to be stated therein.
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, affairs
or business prospects of the Company and its Significant Subsidiaries
(as
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defined below), taken as a whole, whether or not arising in the
ordinary course of business, (B) there have been no transactions
entered into by the Company or any of its Significant Subsidiaries,
other than those in the ordinary course of business, that are material
to the Company and its Significant Subsidiaries, taken as a whole, and
(C) except for regular quarterly dividends, there has been no dividend
or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus or documents incorporated by reference therein; and the
Company is not required to be qualified as a foreign corporation to
transact business in any other jurisdiction except when the failure to
be so qualified would not have a material adverse effect on the Company
and its Subsidiaries, taken as a whole.
(vi) Each of the subsidiaries of the Company set forth on
Schedule I to the applicable Pricing Agreement (each a "Significant
Subsidiary") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described or
incorporated by reference in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, 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 Significant
Subsidiaries taken as a whole. All of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by
the Company, directly or indirectly, free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity except as set forth into the
pricing agreement.
(vii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under "Capitalization" or
in documents incorporated therein by reference (except for subsequent
issuances, if any, pursuant to reservations, agreements, employee
benefit plans or the exercise of convertible securities referred to in
the Prospectus or in documents incorporated therein by reference); the
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable; any shares of the Company's common stock, par value
$.10 per share (the "Common Stock"), initially issuable upon conversion
of Securities that are designated in a Pricing Agreement as being
convertible into Common Stock ("Convertible Debt Securities") have been
duly authorized and reserved for issuance (or will have been so
authorized or reserved prior to each issuance of such Securities), and
such shares when issued and delivered in accordance with the provisions
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of the Securities and Indenture, will be validly issued, fully paid and
non-assessable and conform to the description of the Common Stock in
the Prospectus.
(viii) The Securities have been duly authorized for issuance
pursuant to this Agreement (or will have been so authorized prior to
each issuance of Securities) and, when executed, issued and delivered
by the Company and authenticated by the Trustee pursuant to the
provisions of the applicable Indenture and this Agreement against
payment of the consideration set forth in the Pricing Agreement, will
have been duly executed, issued and delivered by the Company and will
constitute legal, valid and binding obligations of the Company entitled
to the benefits of the applicable Indenture and enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Indentures have
been duly authorized by the Company, will be substantially in the forms
heretofore delivered to you and, when duly executed and delivered by
the Company and the Trustees, will constitute legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their respective terms, except as the enforcement
thereof may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Securities and the
Indentures conform in all material respects to all statements relating
thereto contained in the Prospectus.
(ix) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter, or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or
any of its Significant Subsidiaries is a party or by which it or any of
them may be bound. The execution and delivery of this Agreement, the
applicable Indenture and the Pricing Agreement and the consummation of
the transactions contemplated herein have been, or will be, duly
authorized by all necessary corporate action and do not and will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Significant
Subsidiaries pursuant to, any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or
any of its Significant Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter or
by-laws of the
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Company or any applicable law or administrative regulation or any
administrative or court decree and no consent, approval, authorization
or order of any court or governmental authority or agency is required
for the consummation by the Company of the transactions contemplated by
this Agreement, except such as have been obtained under the 1933 Act,
the 1933 Act Regulations, the 1939 Act or the 1939 Act Regulations or
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(x) The Company and the Significant Subsidiaries own or
possess or have obtained all material governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to lease
or own, as the case may be, and to operate their respective properties
and to carry on their respective businesses as presently conducted.
(xi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting
the Company or any of its Significant Subsidiaries, which is required
to be disclosed in the Registration Statement (other than as disclosed
therein or in documents incorporated therein by reference) and is not
so disclosed, or which might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and its Significant Subsidiaries,
taken as a whole or which might materially and adversely affect the
properties or assets thereof or which might materially and adversely
affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Company or any Significant
Subsidiary is a party or of which any of their property is the subject
which are not described in the Registration Statement or documents
incorporated therein by reference, including ordinary routine
litigation incidental to the business, are, considered in the
aggregate, not material to the Company and its Significant
Subsidiaries, taken as a whole; and there are no contracts or documents
of the Company or any of its Significant Subsidiaries which are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations which have not been so filed.
(xii) The Company and its Significant Subsidiaries own or
possess, or can acquire on reasonable terms, adequate trademarks,
service marks and trade names necessary to conduct the business now
operated by them, and neither the Company nor any of its Significant
Subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
affairs or business prospects of the Company and its Significant
Subsidiaries, taken as a whole.
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(xiii) (a) Each of the broker-dealers listed in Schedule I
hereto has been duly registered as a broker-dealer under the 1934 Act
and is duly licensed or qualified as such, is a member of the National
Association of Securities Dealers, Inc. ("NASD"), the Securities
Investor Protection Corporation ("SIPC") and the Stock Exchanges
indicated in the documents incorporated by reference in the
Registration Statement and is in compliance in all material respects
with all applicable laws, rules, regulations, orders, by-laws and
similar requirements in connection with such registration, licenses,
qualifications or memberships, in all states in which the conduct of
each of its businesses as presently conducted requires such
registration, licensing or qualification; and (b) each of the
investment advisers listed in Schedule II hereto has been duly
registered as an investment adviser under the Investment Advisers Act
and is duly licensed or qualified as such, and is in compliance in all
material respects with all applicable laws, rules, regulations, orders
and similar requirements in connection with such registration, licenses
or qualifications, in all states in which the conduct of each of its
businesses as presently conducted requires such registration, licensing
or qualification.
(xiv) The Company has not taken and will not take, directly or
indirectly, any action designed to, or which might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Securities or, in the case of an offering of Convertible
Debt Securities, the Common Stock.
(xv) The Company has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida statutes, as contemplated by the regulations promulgated
thereunder relating to issuers doing business with Cuba.
(xvi) The documents (as amended prior to the date hereof, as
the case may be) incorporated or deemed to be incorporated by reference
in the Prospectus, 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 under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereto become effective
and at the Closing Time (as defined below), 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, in
the light of the circumstances under which they were made, not
misleading.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
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SECTION 2. Purchase and Sale. The several commitments of the
Underwriters to purchase Securities pursuant to any Pricing Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
Payment of the purchase price for, and delivery of, the
Securities shall be made at the date, time and location specified in the
applicable Pricing Agreement relating to the Securities, or at such other date,
time and location as shall be agreed upon by the representatives (as defined in
Section 3 below) and the Company, or as shall be otherwise be provided in
Section 10 (such time and date of payment and delivery being herein called the
"Closing Time"). Unless otherwise specified in the applicable Pricing Agreement,
payment shall be made to the Company by wire transfer of same-day funds at the
Closing Time to an account or accounts designated by the Company against
delivery to the Representatives for the respective accounts of the Underwriters
of the Securities to be purchased by them (unless such Securities are issuable
only in the form of one or more global Securities registered in the name of a
depository or a nominee of a depository, in which event the Underwriters'
interest in such global certificate shall be noted in a manner satisfactory to
the Underwriters and their counsel). Such Securities shall be in such authorized
denominations and registered in such names as the Representatives may request in
writing at least two business days prior to the applicable Closing Time. Such
Securities, which may be in temporary form, will be made available for
examination and packaging by the Representatives on or before the first business
day prior to Closing Time.
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Immediately following the execution of each Pricing
Agreement, the Company will prepare a Prospectus Supplement setting forth the
principal amount of Debt Securities covered thereby and their terms not
otherwise specified in the applicable Indenture, whether the Debt Securities
will be Senior Debt Securities or Subordinated Debt Securities, the names of the
Underwriters participating in the offering and the principal amount of Debt
Securities which each severally has agreed to purchase, the names of any
Underwriters acting as manager or co-managers in connection with the offering
(the "Representatives" which term shall include each Underwriter in the event
that there be no manager or co-manager), the price at which the Securities are
to be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, and such other
information as you and the Company deem appropriate in connection with the
offering of the Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the
Regulations and will furnish to the Underwriters named therein as many copies of
the Prospectus and such Prospectus Supplement as the Representatives shall
reasonably request.
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(b) The Company will notify the Underwriters promptly, and
confirm the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the receipt of any comments from the Commission
with respect to the Registration Statement, the Prospectus or any Prospectus
Supplement, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose and (v) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(c) The Company will give the Underwriters notice of its
intention to file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Underwriters with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Representatives or counsel to
the Underwriters shall reasonably object, unless required to do so pursuant to
the applicable federal securities laws.
(d) The Company will deliver to the Representatives signed
copies of the Registration Statement as initially filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and will also deliver to the Underwriters as many conformed copies of the
Registration Statement as initially filed and of each amendment thereto (without
exhibits) as the Underwriters may reasonably request.
(e) If at any time when the Prospectus is required by the
1933 Act to be delivered in connection with sales of Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser or if it shall be necessary, in the view of such
counsel, at any such time to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1934 Act or the
1934 Act Regulations, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant to
the 1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission or make the Registration Statement comply with such requirements.
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(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Representatives may designate and will maintain such qualification
in effect for as long as may be required for the distribution of the Securities;
provided, however, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement.
(g) With respect to each sale of Securities, the Company will
make generally available to its security holders as soon as practicable, but not
later than 60 days after the close of the period covered thereby, an earnings
statement (in a form which complies with the provisions of Rule 158 under the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the "Effective
Date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus under "Use
of Proceeds."
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file all documents required
to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(j) Between the date of any Pricing Agreement and the later
of termination of any trading restrictions or Closing Time with respect to the
Securities, the Company will not, without your prior written consent, directly
or indirectly, offer to sell, sell, enter into an agreement to sell, grant any
option for the sale of, or otherwise dispose of, any new issue of debt
securities of the Company with a maturity of more than one year, including
additional Debt Securities (except for (i) any debt securities issued upon
exercise of warrants, (ii) any debt securities of the Company denominated in a
currency other than the currency in which the Securities subject to such Pricing
Agreement shall be denominated) or any warrants for the purchase of debt
securities of the Company with a maturity of more than one year. If the
Securities designated in the applicable Pricing Agreement are convertible into
Comon Stock, for a period of 90 days from the date of the applicable Pricing
Agreement, the Company will not, without your prior written consent, directly or
indirectly, offer to sell, sell, enter into an agreement to sell, grant any
option for the sale of, or otherwise dispose of, any Common Stock, or security
convertible into or exchangeable for Common Stock, of the Company other than
pursuant to existing employee incentive plans as set forth in the Registration
Statement or documents incorporated by reference therein or in connection with
an acquisition.
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(k) If any Securities are designated by the applicable
Pricing Agreement to be convertible into Common Stock, the Company will reserve
and keep available at all times, free of preemptive rights, shares of Common
Stock of the Company for the purpose of enabling the Company to satisfy any
obligations to issue shares of its Common stock upon conversion of the
Securities.
SECTION 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the printing of this
Agreement and each Pricing Agreement covered below, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
Legal Investment Survey, (vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement as
originally filed and of each amendment thereto, of any preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto, (vii) the fees
and expenses of the applicable Trustee, (viii) the printing and delivery to the
underwriters of copies of the Blue Sky Survey, the applicable Indenture and any
Legal Investment Survey, (ix) the fees charged by the rating agencies in
connection with the rating of the Securities, (x) the fee of the National
Association of Securities Dealers, Inc. and (xi) the fees and expenses, if any,
incurred in connection with the listing of the Securities on the New York Stock
Exchange or any other national exchange.
If a Pricing Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters named in such Pricing Agreement for all
of their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase Securities pursuant to any Pricing
Agreement are subject to the accuracy of the representations and warranties of
the Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act, and no proceedings under the 1933 Act therefor shall
have been initiated or threatened by the Commission, and (ii) the rating
assigned by any nationally recognized securities rating agency to
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any debt securities, preferred stock or other obligations of the Company as of
the date of the applicable Pricing Agreement shall not have been lowered since
the execution of such Pricing Agreement and no notice shall have been given of
any intended or potential down-grading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the 1933 Act.
(b) At Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Xxxxxx X. Xxxxx, General Counsel of the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, 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 Maryland.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement.
(iii) To the best of his knowledge and information, the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
the conduct of its business requires such qualification and
the failure to so qualify would not have a material adverse
effect on the Company.
(iv) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus under
"Capitalization" or in documents incorporated therein by
reference (except for subsequent issuances, if any, pursuant
to reservations, agreements, employee benefit plans or the
exercise of convertible securities referred to in the
Prospectus or in documents incorporated therein by reference),
and the shares of issued and outstanding Common Stock have
been duly authorized and validly issued and are fully paid and
nonassessable.
(v) The Securities, including any Securities in global
form, are in the form contemplated by the applicable Indenture
and have been duly authorized for issuance and sale to the
Underwriters by all necessary corporate action. The Securities
have been duly executed, issued and delivered by the Company
and, when authenticated as specified in the applicable
Indenture and delivered against payment pursuant to this
Agreement, as supplemented by the applicable Pricing
13
Agreement, will be legal, valid and binding obligations of the
Company entitled to the benefits of the applicable Indenture
and enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or similar laws now or hereafter in effect relating
to creditors' rights generally, (b) general principles of
equity (regardless of whether enforceability is considered in
a proceeding at law or in equity) and (c) requirements that a
claim (or a foreign currency judgment in respect of such
claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law. The definitive Securities in bearer form
issuable in exchange for any global Security, when duly
executed, authenticated, issued and delivered in exchange for
such global Security as specified in the applicable Indenture,
will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as the
enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
similar laws now or hereafter in effect relating to creditors'
rights generally, (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law
or in equity) and (c) requirements that a claim (or a foreign
currency judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law. The applicable
Indenture has been duly authorized, executed and delivered by
the Company, and, assuming due authorization, execution and
delivery by the applicable Trustee, constitutes a legal, valid
and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as the
enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity).
(vi) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and, to the best of
his knowledge, is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which the conduct of its business requires such
qualification and the failure to so qualify would have a
material adverse effect on such Significant Subsidiary. All of
the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, and is
fully paid and nonassessable, and all of such capital stock
is, to the best of his knowledge and
14
information, owned by the Company, directly or indirectly,
free and clear of any pledge, lien, encumbrance, claim or
equity.
(vii) (a) Each of the broker-dealers listed in Schedule I
hereto has been duly registered as a broker-dealer under the
1934 Act and is duly licensed or qualified as such, is a
member of the NASD, the SIPC and the Stock Exchanges indicated
in the documents incorporated by reference in the Registration
Statement and, to the best of his knowledge, is in compliance
in all material respects with all material applicable laws,
rules, regulations, orders, by-laws and similar requirements
in connection with such registration, licenses, qualifications
or memberships, in all states in which the conduct of each of
its businesses as presently conducted requires such
registration, licensing or qualification; and (b) each of the
investment advisers listed in Schedule II hereto has been duly
registered as an investment adviser under the Investment
Advisers Act and is duly licensed or qualified as such, and,
to the best of his knowledge, in compliance in all material
respects with all material applicable laws, rules,
regulations, orders and similar requirements in connection
with such registration, licenses or qualifications, in all
states in which the conduct of each of its businesses as
presently conducted requires such registration, licensing or
qualification.
(viii) This Agreement and the applicable Pricing
Agreement have been duly authorized, executed and delivered by
the Company.
(ix) At the time the Registration Statement became
effective and at the Representation Date, the Registration
Statement (other than the financial statements and supporting
schedules and any other financial or statistical data included
or incorporated by reference therein, as to which no opinion
need be rendered) compiled as to form in all material respects
with the applicable requirements of the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the 1939 Act Regulations.
(x) The applicable Indenture and Securities conform in
all materials respects to the description thereof contained in
the Prospectus.
(xi) The Registration Statement is effective under the
1933 Act and, to the best of his knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(xii) The applicable Indenture is qualified under the
1939 Act.
15
(xiii) Any shares of Common Stock initially issuable
upon conversion of Securities will be, when the Securities are
issued, validly authorized and reserved for issuance, and such
shares, when issued and delivered in accordance with the
provisions of the Securities and the applicable Indenture,
will be duly and validly issued and fully paid and
non-assessable; the issuance of such shares upon conversion
will not be subject to preemptive rights; and the Common Stock
conforms in all material respects to the description thereof
in the Prospectus.
(xiv) To the best of his knowledge, there are no legal or
governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other
than those disclosed therein or in documents incorporated by
reference therein, and all pending legal or governmental
proceedings to which the Company or any Significant Subsidiary
is a party or to which any of their property is subject which
are not described in the Registration Statement or documents
incorporated by reference therein, including ordinary routine
litigation incidental to the business are considered in the
aggregate, not material.
(xv) To the best of his knowledge and information, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments or documents required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references
thereto are correct, and no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, filed or incorporated by
reference.
(xvi) No authorization, approval, consent or order of
any court or governmental agency is required in connection
with the sale of the Securities to the Underwriters, except
such as may be required under the 1933 Act, the 1933 Act
Regulations, the 1939 Act, the 1939 Act Regulations or state
securities laws or the NYSE; and, to the best of his
knowledge, the execution and delivery of this Agreement, the
Pricing Agreement, the applicable Indenture and the
consummation of the transactions contemplated herein will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of them is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of them is
subject; nor will such action
16
result in any violation of the provisions of the charter or
by-laws of the Company, or any applicable law, administrative
regulation or administrative or court decree.
(xvii) Each document filed pursuant to the 1934 Act
(other than the financial statements and supporting schedules
included therein, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the
Prospectus complied when so filed as to form in all material
respects with the 1934 Act and the 1934 Act Regulations.
In rendering the opinions set forth in this paragraph, Xxxxxx
X. Xxxxx may rely on such opinions of counsel as he may reasonably request,
provided that such counsel is reasonably satisfactory to counsel for the
Underwriters and that copies of such opinions are attached to his opinion.
(2) The favorable opinion, dated as of Closing Time, of
Shearman & Sterling, counsel for the Company, with respect to the matters set
forth in (i), (v), (viii) through (xiii) and (xvii) of subsection (b)(1) of this
Section. In rendering such opinion, Shearman & Sterling may rely as to the
matters set forth in (xvii) of subsection (b)(1) of this Section and the
incorporation of the Company and all other matters governed by Maryland law upon
the opinion of Xxxxxx X. Xxxxx referred to above.
(3) The favorable opinion, dated as of Closing Time,
_____________, counsel for the Underwriters, with respect to the matters set
forth in (i), (v) and (viii) through (xiii) of subsection (b)(1) of this
Section. In rendering such opinion, _____________ may rely as to the
incorporation of the Company and all other matters governed by Maryland law upon
the opinion of Xxxxxx X. Xxxxx referred to above.
(4) In giving their opinions required by subsections (b)(1),
(b)(2) and (b)(3) of this Section, Xxxxxx X. Xxxxx, Xxxxxxxx & Sterling and
counsel to the Underwriters, respectively, shall each additionally state that
although they are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus and have not made any independent check or
verification thereof, on the basis of the foregoing (relying as to materiality
upon the opinions of officers and other representatives of the Company) nothing
has come to their respective attention that would lead them to believe that the
Registration Statement, at the time it became effective, 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 or
that the Prospectus, at Closing Time, included an untrue statement of a material
fact or omitted 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 (it being understood that none of them expresses any belief
with respect to the financial statements and related schedules or other
financial and statistical data included or
17
incorporated by reference in the Registration Statement or the Prospectus or
with respect to the Statement of Eligibility on Form T-1 of the Trustee).
(c) At Closing Time, there shall not have been, since the
date of the applicable Pricing Agreement or since the respective dates as of
which information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Significant Subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the Chairman of the Board, the President or a Vice President of
the Company and of the chief financial officer or chief accounting officer of
the Company, dated as of 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 Closing Time, (iii) the Company has complied in all material
respects with all agreements and satisfied all conditions on its part to be
performed or satisfied by it at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(d) The Underwriters shall have received from
PricewaterhouseCoopers LLP or other independent certified public accountants
acceptable to the Representatives letters dated as of the date of the applicable
Pricing Agreement and as of the date of the applicable Closing Time,
respectively, in form and substance reasonably satisfactory to the
Representatives.
(e) At Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Securities as herein contemplated and related proceedings, 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 reasonably satisfactory in form and substance to
the Underwriters and their counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Pricing Agreement
may be terminated by the Representatives by written notice to the Company at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof. Notwithstanding any such termination, the provisions of Sections 6, 7, 8
and 13 shall remain in effect.
SECTION 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
18
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(d) hereof, the reasonable fees and
disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any
19
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) The Company agrees to indemnify and hold harmless each
Underwriter against any documentary stamp or similar issue tax and any related
interest or penalties on the issue or sale of the Securities to the Underwriters
which are due in the United States of America, the United Kingdom or any other
jurisdiction.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought hereunder, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") as promptly as reasonably practicable, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. 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 the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties, except that the Company shall be liable for the fees and expenses of
one counsel representing Xxxx Xxxxx Xxxx Xxxxxx Incorporated and one counsel
representing the other Underwriters and the persons controlling the other
Underwriters.
Insofar as this indemnity may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an Underwriter
or who controls an Underwriter within the meaning of Section 15 of the 1933 Act
and who, at the date of the applicable Pricing Agreement, is a director, officer
or controlling person of the Company, such indemnity agreement is subject to the
undertaking of the Company in the Registration Statement.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity
20
agreement incurred by the Company and one or more of the Underwriters, as
incurred, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount set forth
in the applicable Pricing Agreement bears to the initial public offering price
set forth in the applicable Pricing Agreement and the Company is responsible for
the balance; provided, however, that 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. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement. (a) The Representatives
may terminate the applicable Pricing Agreement, by notice to the Company, at any
time at or prior to the applicable Closing Time (i) if there has been, since the
date of the applicable Pricing Agreement or since the respective dates as of
which information is given in the Registration Statement or documents
incorporated by reference therein, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Significant Subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis, the effect of which is such as to make it, in the
judgment of the Underwriters, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Common Stock has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal, New York or Maryland
authorities or if a banking moratorium has been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies underlying the Securities.
(b) 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.
21
Notwithstanding any such termination, the provisions of Sections 6, 7, 8 and 13
shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters participating in an offering of Securities shall
fail at the applicable Closing Time to purchase the Securities which it or they
are obligated to purchase hereunder and under the applicable Pricing Agreement
(the "Defaulted Securities"), then you, as the Representatives of the
Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company such amounts as may be agreed upon and upon the terms set forth
therein and in the applicable Pricing Agreement, the Securities which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Securities agreed to be purchased
by the defaulting Underwriter or Underwriters, then (a) if the aggregate amount
of the Defaulted Securities does not exceed 10% of the Securities covered by the
applicable Pricing Agreement, the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Securities which they are
obligated to purchase under such Pricing Agreement, to purchase the Securities
which such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate amount of the Defaulted Securities exceeds 10% of the Securities
covered by the applicable Pricing Agreement, the Company or you as the
Representatives of the Underwriters will have the right, by written notice given
within the next 36-hour period to the parties to the applicable Pricing
Agreement, to terminate the applicable Pricing Agreement without liability on
the part of any nondefaulting Underwriter.
No action pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of the applicable Pricing Agreement, either the non-defaulting
Underwriter or Underwriters, as the case may be, 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 Registration Statement or Prospectus
or in any other documents or arrangement.
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
Underwriters shall be directed as set forth in the applicable Pricing Agreement;
notices to the Company shall be directed to it at Xxxx Xxxxx, Inc., 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, attention of Xxxxxx X. Xxxxx, Senior Vice
President and General Counsel.
SECTION 12. Parties. This Agreement and each applicable
Pricing Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company and
22
their respective successors. Nothing expressed or mentioned in this Agreement or
any such Pricing Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any Pricing Agreement or any provision herein or therein contained. This
Agreement and each applicable Pricing Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters 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 Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the
Pricing Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Except as otherwise set forth herein, specified times of day refer
to New York time.
Very truly yours,
XXXX XXXXX, INC.
By:
-----------------------------
Name:
Title:
23
SCHEDULE I
[LIST OF BROKER-DEALERS]
24
SCHEDULE II
[LIST OF INVESTMENT ADVISERS]
Exhibit A
XXXX XXXXX, INC.
(a Maryland corporation)
___% Debt Securities due _____
PRICING AGREEMENT
-----------, ----
[Name and address of the
Underwriter(s) or Representative(s)
of the Underwriter(s), if any]
Dear Sirs:
Xxxx Xxxxx, Inc., a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated __________, ____ (the "Underwriting Agreement"),
to issue and sell to [___________ (the "Underwriter(s)")] [the several
Underwriters listed on Schedule I hereto, for whom ____________ is/are acting as
representative(s) (the "Representative(s)")], the Securities specified herein
(the "Securities"). This agreement is the Pricing Agreement relating to the
Securities referred to in the Underwriting Agreement.
Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had been
set forth in full herein. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The address of the
Underwriter(s) referred to in Section 11 of the Underwriting Agreement is
______________________, Attention: ______________.
An amendment to the Registration Statement, or the Prospectus
Supplement, as the case may be, relating to the Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
[LIST OF "SIGNIFICANT SUBSIDIARIES NOT OWNED FREE AND CLEAR
OF ENCUMBRANCES"]
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and to sell to the
A-1
Underwriters, and the Underwriters agree to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth herein,
the aggregate principal amount of Securities.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with the Underwriters as follows:
Title of Debt Securities:
Whether Senior or Subordinated Debt Securities:
Indenture (if other than as specified in the Underwriting
Agreement):
Principal amount to be issued: $
Current ratings:
Interest rate: % Payable
Date of maturity:
[Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agent:]
Redemption provisions:
Conversion:
Sinking fund requirements:
[Public offering price: %, plus accrued interest, or
amortized original issue discount, if any,
from , 19 .]
Purchase price: %, plus accrued interest, or amortized
original issue discount, if any, from ______, ____
(payable in next day funds).
Closing date and location:
This Agreement shall be governed by the laws of the State of
New York.
--------------------
If the foregoing is in accordance with your understanding of
the agreement between you and the Company, please sign and return to the Company
a counterpart hereof, whereupon this instrument along with all counterparts
(including the provisions of the Underwriting Agreement incorporated by
reference herein) shall be a binding agreement between the Underwriter and the
Company in accordance with its terms and the terms of the Underwriting
Agreement.
A-2
Very truly yours,
XXXX XXXXX, INC.
By:
-----------------------------
Name:
Title:
Accepted as of the date first above written:
UNDERWRITER(S) or
REPRESENTATIVE(S),
on behalf of the several Underwriters
named in Schedule I hereto
By:
-----------------------------------
Name:
Title:
Aggregate
Principal
Amount
Name of Underwriter of Securities
------------------ --------------
Total.....................................................
A-3
SCHEDULE I
TO THE PRICING AGREEMENT
Significant Subsidiaries of the Company
A-4