EXHIBIT 1
XxXXXXXX'X CORPORATION
UNDERWRITING AGREEMENT
----------------------
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Dear Sirs:
1. Introductory. XxXxxxxx'x Corporation (the "Company"), a Delaware
corporation, proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives", which term may refer to a single Representative
if so indicated on Schedule I hereto), the principal amount of its
securities identified in Schedule I hereto (the ``Securities''), to be
issued under an Indenture, dated as of October 18, 1996 as supplemented
by Supplemental Indenture No. 3 to be dated as of September 24, 1997
(collectively, the ``Indenture''), between the Company and First Union
National Bank, as trustee (the `` Trustee''). (If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms ``Underwriters'' and ``Representatives,'' as used
herein, shall each be deemed to refer to such firm or firms.)
2. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the ``Commission'') a registration statement on Form S-3
under the Securities Act of 1933, as amended (the ``Securities Act'')
(File No. 333-14141), which has become effective, for the registration
under the Securities Act of the Securities. Such registration
statement meets the requirements set forth in Rule 415(a)(1)(i) under
the Securities Act and complies in all other material respects with
said Rule. The Company proposes to file with the Commission pursuant
to Rule 424(b)(2) or (b)(5) under the Securities Act a supplement to
the form of prospectus included in registration statement File No.
333-14141 relating to the Securities and the plan of distribution
thereof or, if the Company elects to rely on Rule 434 under the
Securities Act, a Term Sheet (as such term is hereinafter defined)
relating to the Securities that shall contain such information as is
required or permitted by Rules 434 and 424(b) under the Securities
Act. The registration statement File No. 333-14141, including the
exhibits thereto, is hereinafter called the ``Registration
Statement;'' the prospectus in the form in which it appears in
registration statement File No. 333-14141, is hereinafter called the
``Basic Prospectus;'' and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to Rule
424(b)(2) or (b)(5) (including the Basic Prospectus as so
supplemented) or, if the Company elects to rely on Rule 434 under the
Securities Act, in the form of the Term Sheet as first filed with the
Commission pursuant to Rule 424(b)(7) (together with the Basic
Prospectus), is hereinafter called the ``Final Prospectus.'' Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424(b) is hereinafter called the ``Preliminary
Final Prospectus. '' Any abbreviated term sheet that satisfies the
requirements of Rule 434 under the Securities Act is hereinafter
called the ``Term Sheet.'' Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934,
as amended (the ``Exchange Act '') on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms ``amend,'' ``amendment'' or
``supplement'' with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Securities Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement),
when any supplement to the Final Prospectus is filed with the
Commission and at the Closing Date (as hereinafter defined), (i) the
Registration Statement, as amended as of any such time, the Final
Prospectus, as amended or supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable
requirements of the Securities Act, the Trust Indenture Act of 1939,
as amended (the ``Trust Indenture Act '') and the Exchange Act and the
respective rules and regulations thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of any such time, will
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, however, that
the Company makes no representations or warranties as to (i) that part
of the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee,
(ii) information, if any, contained in the Registration Statement or
Final Prospectus relating to the Depository Trust Company ("DTC")
and its book-entry system, or (iii) the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
Statement and the Final Prospectus.
(c) The financial statements of the Company and its consolidated
subsidiaries included in the Registration Statement fairly present the
financial condition of the Company and its consolidated subsidiaries
as of the dates indicated and the results of operations and cash flow
for the periods therein specified; and said financial statements have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein. As used herein,
``consolidated subsidiaries '' means each subsidiary of the Company
which is included in the consolidated financial statements of the
Company contained in its annual report to shareholders for 1996 in
accordance with the consolidation policies set forth therein or which
would have been so included if it had been a subsidiary of the Company
as of the date of such consolidated financial statements, and each
other subsidiary of the Company which is included in consolidated
financial statements of the Company prepared from time to time
thereafter.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus and prior
to the Closing Date hereinafter mentioned, except as set forth or
contemplated in the Final Prospectus, (1) neither the Company nor any
of its consolidated subsidiaries has entered into any transaction not
in the ordinary course of business which is material to the Company
and its consolidated subsidiaries, considered as a whole, (2) there
has been no material adverse change in the properties, business,
financial condition or results of operations of the Company and its
consolidated subsidiaries, considered as a whole, and (3) no legal or
governmental proceeding, which has or will have materially affected
the Company or any of its consolidated subsidiaries, considered as a
whole, or the transactions contemplated by this Agreement, has been or
will have been instituted or threatened.
(e) The Company and each of its Significant Subsidiaries (herein
defined to mean the list of the Company's domestic and foreign
subsidiaries appearing in Exhibit 21 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996) have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective states or jurisdictions of
incorporation, with corporate power and authority to own their
properties and to conduct their business as described in the Basic
Prospectus and Final Prospectus. The Company and each of its
Significant Subsidiaries are duly qualified to do business as foreign
corporations and are in good standing in all states or jurisdictions
in which the ownership or lease of real property or the conduct of
business requires such qualifications, except where failure to be so
qualified cannot be reasonably expected to have a material adverse
effect on the financial condition of the Company and its consolidated
subsidiaries, considered as a whole. The Company owns all of the
issued and outstanding shares of capital stock of each of the
Significant Subsidiaries, directly or indirectly through one or more
Significant Subsidiaries (except XxXxxxxx'x Development Italy, Inc.,
McDonald's Properties (Australia) Pty., Ltd., McDonald's Development
Italia S.p.A, XxXxxxxx'x Restaurants (Swisse) S.A. and XxXxxxxx'x
Australia Limited, of which the Company directly or indirectly owns a
majority of the capital stock), and all of such shares of the
Significant Subsidiaries are owned free and clear of any liens,
charges and encumbrances.
(f) The consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not (i) conflict with or
result in a breach of any of the terms and provisions of, or
constitute a default under, the Restated Certificate of Incorporation
or By-Laws of the Company as presently in effect or (ii) conflict with
or result in a breach of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is a party, or any
order, rule or regulation applicable to the Company of any court or of
any federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or any of its
properties, except such conflicts, breaches or defaults referred to in
this subclause (ii) which would not materially and adversely affect
the Company and its consolidated subsidiaries considered as a whole.
(g) The Securities have been duly and validly authorized and, when
issued, authenticated and delivered against payment therefor in
accordance with the terms of the Indenture and this Agreement, will
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture, except as enforcement
thereof may be limited by applicable bankruptcy, insolvency,
moratorium and other laws affecting the enforceability of creditors'
rights and general principles of equity, and will conform to the
description thereof contained in the Final Prospectus. The Indenture
has been duly authorized by the Company and will be a valid and legal
instrument enforceable in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the enforceability of
creditors' rights and general principles of equity. The Indenture is
duly qualified under the Trust Indenture Act.
3. Sale, Purchase and Delivery of Securities. On the basis of the
representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company hereby agrees to sell to the
Underwriters, severally and not jointly, and each Underwriter, severally
and not jointly (unless otherwise indicated on Schedule I hereto), agrees
to purchase from the Company, at the purchase price set forth in Schedule
I hereto, the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I
hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II
hereto, less the respective amounts of Contract Securities determined as
provided below. Securities to be purchased by the Underwriters are herein
sometimes called the ``Underwriters' Securities'' and Securities to be
purchased pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called ``Contract Securities''.
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts (``Delayed Delivery Contracts ''),
substantially in the form of Schedule III hereto but with such changes
therein as the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation therefor, the
Company will pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth in Schedule I
hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and educational
and charitable institutions. The Company will make Delayed Delivery
Contracts in all cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not
less than the minimum principal amount set forth in Schedule I hereto and
the aggregate principal amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity
or performance of Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule
II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such
Underwriter bears to the aggregate principal amount set forth in Schedule
II hereto, except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the Company in
writing; provided, however, that the total principal amount of Securities
to be purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto, less the aggregate principal
amount of Contract Securities.
Delivery of and payment for the Underwriters' Securities shall be made
at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Underwriters' Securities
being herein called the ``Closing Date''). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to
or upon the order of the Company in Federal (same day) funds, or, if so
indicated on Schedule I hereto, in New York Clearinghouse (next day)
funds. Certificates for the Underwriters' Securities shall be registered
in such names and in such denominations as the Representatives may
request not less than two full business days in advance of the Closing
Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York,
New York, not later than 1:00 PM on the business day prior to the Closing
Date.
If so provided in Schedule I hereto, Underwriters' Securities will be
represented by one or more definitive global Securities in book-entry
form which will be deposited by or on behalf of the Company with DTC or
DTC's designated custodian. In such case, (a) delivery of the
Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters by causing DTC to credit
the Underwriters' Securities to the account of the Representatives at
DTC, and (b) the Company will cause the certificates representing the
Underwriters' Securities to be made available to the Representatives for
inspection not later than 1:00 p.m., New York City time, on the business
day prior to the Closing Date at the office of DTC or its designated
custodian.
4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing, and the Company will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 and/or Rule 434 under the
Securities Act. The Company will promptly advise the Representatives
(i) when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 and/or Rule 434 under the Securities
Act, (ii) when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any request by
the Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly
upon the request of the Representatives, any amendments or supplements
to the Registration Statement or Final Prospectus which, in the
opinion of counsel for the Underwriters, may be necessary to enable
the several Underwriters to continue the sale of the Securities, and
the Company will use its best efforts to cause any such amendments to
become effective and any such supplements to be filed with the
Commission and approved for use by the Underwriters as promptly as
possible. If at any time when a prospectus relating to the Securities
is required to be delivered under the Securities Act, any event
relating to or affecting the Company occurs as a result of which the
Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material
fact necessary to make the statement therein not misleading, or if it
is necessary at any time to amend or supplement the Final Prospectus
to comply with the Securities Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the first sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or which will effect such compliance. For
the purposes of this paragraph (b), the Company will furnish such
information with respect to itself as the Representatives may from
time to time reasonably request.
(c) As soon as practicable, but not later than 90 days after the
end of the 12-month period beginning at the end of the current fiscal
quarter of the Company, the Company will make generally available to
its security holders and you an earnings statement covering a period
of at least twelve months beginning not earlier than said effective
date which shall satisfy the provisions of Section 11(a) of the
Securities Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto and documents incorporated by reference
therein) and each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Securities Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing all documents relating to the offering.
(e) The Company will furnish such information and execute such
instruments as may be required to qualify the Securities for sale
under the securities or blue sky laws of such jurisdictions within the
United States as you designate, will continue such qualifications in
effect so long as required for distribution and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors. The Company shall not be required to register
or qualify as a foreign corporation nor, except as to matters and
transactions relating to the offer and sale of the Securities, consent
to service of process in any jurisdiction.
(f) So long as the Securities shall be outstanding, the Company
will deliver to you (i) as soon as practicable after the end of each
fiscal year, consolidated balance sheets, statements of income,
retained earnings and cash flows of the Company and its consolidated
subsidiaries, as at the end of and for such year and the last
preceding year, all in reasonable detail and audited by independent
public accountants, (ii) as soon as practicable after the end of each
of the first three quarterly periods in each fiscal year, unaudited
consolidated balance sheets, statements of income, retained earnings
and cash flows of the Company and its consolidated subsidiaries, as at
the end of and for such period and for the comparable period of the
preceding year, all in reasonable detail, (iii) as soon as available,
all such proxy statements, financial statements and reports as the
Company shall send or make available to its stockholders generally,
and (iv) copies of all such annual, periodic and current reports as
the Company or any subsidiary shall file with the Commission or any
securities exchange.
(g) The Company will apply for the listing of the Securities on the
New York Stock Exchange, Inc. if requested to do so by you.
(h) The Company will pay all costs and expenses in connection with
the transactions herein contemplated, including, but not limited to,
the fees and disbursements of its counsel; the fees, costs and
expenses of preparing, printing and delivering the Indenture and the
Securities; the fees, costs and expenses of the Trustee; accounting
fees and disbursements; the costs and expenses in connection with the
qualification or exemption of the Securities under state securities or
blue sky laws, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with any Blue Sky Memorandum; the costs and expenses
in connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto) and the Basic,
Preliminary Final, and Final Prospectus, the preparation and printing
of this Agreement and the furnishing to the Underwriters of such
copies of each prospectus as the Underwriters may reasonably require;
and the fees of rating agencies. It is understood, however, that,
except as provided in this Section and in Sections 7 and 8 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel and any advertising expenses connected with
any offers they may make.
(i) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell,
or announce the offering of, any debt securities (other than up to
$150,000,000 principal amount of the Company's medium term notes to be
issued pursuant to the Company's Registration Statements on Form S-3
(File Nos. 33-42642 and 33-60939)) covered by the Registration
Statement or any other registration statement filed under the
Securities Act.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities shall
be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the date hereof, as of the
date of the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to the
accuracy of the written statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or shall be
pending, or, to the knowledge of the Company, shall be contemplated by
the Commission.
(b) No event, nor any material adverse change in the condition of
the Company, financial or otherwise, shall have occurred, nor shall
any event exist which makes untrue or incorrect any material statement
or information contained in the Registration Statement or the Final
Prospectus or which is not reflected in the Registration Statement or
the Final Prospectus, but should be reflected therein in order to make
the statements or information contained therein not misleading.
(c) You shall not have advised the Company that the Registration
Statement or any prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which, in the opinion of counsel
for the Underwriters, is material, or omits to state a fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(d) You shall have received at the Closing Date (or prior thereto
as indicated) the following:
(i) An opinion from Xxxxxx Xxxxxxx, Vice President, Deputy
General Counsel and Secretary, or a Vice President and Assistant
General Counsel of the Company, dated the Closing Date, to the
effect that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware with corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus.
(B) The Indenture has been duly authorized, executed and
delivered by the Company and the Trustee, is duly qualified
under the Trust Indenture Act, and is a valid and legally
binding obligation of the Company enforceable in accordance with
its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, moratorium and other laws
affecting the enforceability of creditors' rights and general
principles of equity.
(C) The Securities have been duly and validly authorized by
all necessary corporate action and, when duly executed on behalf
of the Company, duly authenticated by the Trustee or the
Trustee's authenticating agent, and duly delivered to the
several Underwriters against payment therefor in accordance with
the provisions of this Agreement, in the case of the
Underwriters' Securities, or to the purchasers thereof pursuant
to Delayed Delivery Contracts, in the case of Contract
Securities, will constitute legal, valid and binding obligations
of the Company enforceable in accordance with their terms and
entitled to all the benefits of the Indenture, except as
enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of
equity.
(D) The Indenture and the Securities conform as to legal
matters with the statements concerning them made in the Final
Prospectus, and such statements accurately set forth the
provisions thereof required to be set forth in the Final
Prospectus.
(E) This Agreement and any Delayed Delivery Contracts have
been validly authorized, executed and delivered on behalf of the
Company.
(F) The Registration Statement and any amendments thereto
have become effective under the Securities Act, and, to the best
of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement, as amended, has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities
Act, and the Registration Statement, the Final Prospectus, and
each amendment thereof or supplement thereto (except for the
financial statements and other financial data included therein,
as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Securities Act and the Exchange Act and the respective rules
thereunder; such counsel has no reason to believe that either
the Registration Statement or the Final Prospectus, or any such
amendment or supplement, contains any untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; the descriptions in the Registration Statement and
Final Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel
does not know of any legal or governmental proceedings required
to be described in the Final Prospectus which are not described
as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Final
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
(G) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof or of any Delayed
Delivery Contracts will not result in a breach of any of the
terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or
instrument to which, to the knowledge of such counsel, the
Company is a party, or the Restated Certificate of Incorporation
or By-Laws of the Company as presently in effect or, to the
knowledge of such counsel, any order, rule or regulation
applicable to the Company of any court or of any federal or
state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or its
properties.
(H) No authorization, approval, consent or other action of
any governmental authority or agency is required in connection
with the sale of the Securities as contemplated by this
Agreement or in any Delayed Delivery Contracts except such as
may be required under the Securities Act or under state
securities or blue sky laws.
(ii) Such opinion or opinions of counsel for the Underwriters,
dated the Closing Date, with respect to the sufficiency of all
corporate proceedings and other legal matters relating to this
Agreement, any Delayed Delivery Contracts, the validity of the
Securities, the Registration Statement, the Final Prospectus and
other related matters as you may reasonably request. The Company
shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to render their
opinions. In connection with such opinions, such counsel may rely
on representations or certificates of officers of the Company.
(iii) A certificate of the President or a Vice President, and
the Chief Financial Officer of the Company or its Treasurer, dated
the Closing Date, to the effect that:
(A) The representations and warranties of the Company in
Section 2 of this Agreement are true and correct as of the
Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(B) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or, to the
knowledge of the respective signers of the certificate, are
contemplated under the Securities Act.
(C) The signers of the certificate have carefully examined
the Registration Statement and the Final Prospectus; neither the
Registration Statement, the Final Prospectus nor any amendment
or supplement thereto includes, as of the Closing Date, any
untrue statement of a material fact or omits, as of the Closing
Date, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
since the latest respective dates as of which information is
given in the Registration Statement, there has been no material
adverse change in the financial position, business or results of
operations of the Company and its consolidated subsidiaries,
considered as a whole, except as set forth in or contemplated by
the Final Prospectus; and since the effective date of the
Registration Statement, as amended, no event has occurred which
is required to be set forth in the Final Prospectus which has
not been so set forth.
(iv) A letter from Ernst & Young LLP, dated the Closing Date,
addressed to you substantially in the form heretofore approved by
you.
(e) Prior to the Closing Date, the Compan y shall have furnished to
you such further certificates and documents as you may reasonably
request.
(f) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any condition of the Underwriters' obligations hereunder required
to be satisfied prior to the Closing Date is not so satisfied, this
Agreement may be terminated by you by notice in writing or by facsimile
transmission to the Company.
In rendering the opinions described in Sections 5(d)(i) and (ii)
above, Xx. Xxxxxx Xxxxxxx, other counsel for the Company, and counsel for
the Underwriters may, as to matters involving the laws of any state other
than Illinois, rely upon the opinion or opinions of local counsel
satisfactory to you, but in such case a signed copy of each such opinion
shall be furnished to you.
All such opinions (including opinions, if any, of local counsel),
certificates, letters and documents will be in compliance with the
provisions hereof only if they are in all material respects satisfactory
to you and to counsel for the Underwriters, as to which both you and such
counsel shall act reasonably. The Company will furnish you with such
conformed copies of such opinions, certificates, letters and documents as
you request.
You, on behalf of the Underwriters, may waive in writing the
compliance by the Company of any one or more of the foregoing conditions
or extend the time for their performance.
6. Representat ion of the Underwriters. Each of the Underwriters
severally represents and warrants to the Company that the information
furnished to the Company in writing by such Underwriter or by you
expressly for use in the preparation of the Registration Statement or the
Final Prospectus does not, and any amendments thereof or supplements
thereto thus furnished 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.
7. Termination of Agreement. This Agreement may be terminated by you
on behalf of the Underwriters by notice in writing delivered to the
Company prior to the Closing Date if prior to such time (i) trading in
the Company's common stock shall have been suspended by the Commission on
the New York Stock Exchange for a period of twenty-four hours or more or
trading in securities generally on the New York Stock Exchange shall have
been suspended or materially limited, in either case to such a degree as
would in your judgment materially adversely affect the market for the
Securities; (ii) a general moratorium on commercial banking activities in
the State of New York or the United States shall have been declared by
Federal authorities; or (iii) there has occurred any material outbreak,
or material escalation, of hostilities involving the United States or
other national or international calamity or crisis, of such magnitude and
severity in its effect on the financial markets of the United States, in
your reasonable judgment, as to prevent or materially impair the
marketing, or enforcement of contracts for sale, of the Securities.
If this Agreement shall be terminated by you because of any failure on
the part of the Company to comply with any of the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement, the
Company shall pay, in addition to the costs and expenses referred to in
Section 4(h), all reasonable out-of-pocket expenses incurred by the
Underwriters in contemplation of the performance by them of their
obligations hereunder, including but not limited to the reasonable fees
and disbursements of counsel for the Underwriters, the Underwriters'
reasonable printing and traveling expenses, and postage and telephone
charges relating directly to the offering contemplated by the Final
Prospectus, and also including advertising expenses incurred after the
effective date of the Registration Statement, it being understood that
such out-of-pocket expenses shall not include any compensation, salaries
or wages of the officers, partners or employees of any of the
Underwriters.
The Company shall not in any event be liable to the several
Underwriters for damages on account of loss of anticipated profits
arising out of the transactions contemplated by this Agreement.
8. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter or such controlling person may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or
any amendment thereof, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse each Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the preparation thereof; and
provided, further, that the foregoing indemnification with respect to the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities, if such
Underwriter failed to send or give copies of the Final Prospectus, as
amended or supplemented, excluding documents incorporated therein by
reference, to such person at or prior to the written confirmation of the
sale of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus
as amended or supplemented). This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each person, if any, who controls the Company either within
the meaning of the Securities Act or the Exchange Act, each of its
directors and each of its officers who has signed the Registration
Statement, against any losses, claims, damages or liabilities to which
the Company, any such controlling person or any such director or officer
may become subject, under the Securities Act, the Exchange Act, or
otherwise, to the same extent as the foregoing indemnity from the Company
to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of
such Underwriter through you specifically for use in the preparation of
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in
the last paragraph of the cover page of the Final Prospectus and under
the heading ``Underwriting'' or ``Plan of Distribution'' and, if Schedule
I hereto provides for sale of Securities pursuant to delayed delivery
arrangements, in the last sentence under the heading ``Delayed Delivery
Arrangements'' in the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in the Final Prospectus, and you confirm that such statements
are correct. This indemnity agreement will be in addition to any
liability which each such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate in and, to the extent that it may elect
by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or in addition to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.
Upon receipt by such indemnified party of notice from the indemnifying
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party
shall have employed such counsel in connection with the assumption of
legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel,
approved by the Representatives of the Underwriters in the case of
subparagraph (a), representing the indemnified parties under subparagraph
(a) or (b), as the case may be, who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party
at the expense of the indemnifying party; provided, further, that, with
respect to legal and other expenses incurred by an indemnified party for
which an indemnifying party shall be liable hereunder, all such legal
fees and expenses shall be reimbursed by the indemnifying party as they
are incurred.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a)
of this Section 8 is due in accordance with its terms but is for any
reason held by a court to be unavailable from the Company on grounds of
policy or otherwise, the Company and the Underwriters shall contribute to
the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the Underwriters
may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount bears to the sum of such discount and the purchase
price of the Securities set forth in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (i) in no case shall
any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount applicable to the
Securities purchased by such Underwriter hereunder and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter
within the meaning of the Securities Act shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Securities Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (i) of this
paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be
made against another party or parties under this paragraph (d), notify
such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If the Underwriters' obligations to
purchase Securities pursuant to Section 3 hereof are several and not
joint and if any one or more Underwriters shall fail to purchase and pay
for any of the Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this
Agreement and unless otherwise provided in Schedule I hereto, the
remaining Underwriters shall be obligated severally to take up and pay
for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate
amount of Securities set opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in
the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations and warranties of the
Company and the several Underwriters, set forth in or made pursuant to
this Agreement, will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, the Company or any
of its officers or directors or any controlling person, and will survive
delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or sent by facsimile transmission and confirmed to
them, at the address specified in Schedule I hereto; or, if sent to the
Company, will be mailed, delivered or sent by facsimile transmission and
confirmed to the Company at Xxx XxXxxxxx'x Xxxxx, Xxx Xxxxx, Xxxxxxxx
00000, Attention of the Treasurer, with a copy to the Controller.
12. Successors; Governing Law. This Agreement will inure to the
benefit of and be binding upon the parties hereto and the officers and
directors and controlling persons referred to in Section 8 hereof and
their respective successors, assigns, heirs, executors and
administrators, and no other persons will have any right or obligation
hereunder. The terms ``successors'' and ``assigns'' as used herein shall
not include a purchaser as such from any Underwriter. This Agreement
shall be governed by and construed and enforced in accordance with, the
internal laws of the State of Illinois.
13. Business Day. For purposes of this Ag reement, ``business day ''
means any day on which the New York Stock Exchange is open for trading.
If the foregoing is in accordance with your understanding of our
agreement, sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
XxXXXXXX'X CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted by
us in Chicago, Illinois, acting on behalf of ourselves, the other
Representatives (if any), and the several Underwriters (if any) named in
Schedule II annexed hereto, as of the date first above written.
Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx X. Xxxxxxxxxx, III
-----------------------------
Date: September 19, 1997
SCHEDULE I
Underwriting Agreement dated September 19, 1997
Registration Statement No. 333-14141
Representatives:
Xxxxxx Xxxxxxx & Co. Incorporated
Title, Purchase Price and Description of Securities:
Title: 7.31% Subordinated Deferrable Interest
Debentures due 2027
Aggregate Principal Amount: $150,000,000
Price to Public: 100%
Purchase Price by Underwriter
(include accrued interest or
amortization if applicable): 99.125% plus accrued interest, if any,
from September 24, 1997
Maturity: September 15, 2027
Interest Rate: 7.31%
Interest Payment Dates: March 15 and September 15
Regular Record Dates: March 1 and September 1, except as
otherwise described in the
Prospectus Supplement
Redemption Provisions: At the option of the Company (i) in
whole or from time to time in part, on
at least 30 days' and not more than 60
days' notice, at any time on or after
September 15, 2007, at a redemption
price equal to 100% of the principal
amount together with accrued interest,
or (ii) in whole, but not in part, at
any time upon the occurrence of a Tax
Event, as described in the Prospectus
Statement, for the Make-Whole Amount,
as described in the Prospectus Supplement,
together with accrued interest
Sinking Fund Provisions: None
Other Provisions: Interest may be deferrable at the option
of the Company under circumstances
described in the Prospectus Supplement
for up to 10 consecutive semi-annual
interest payment periods
Sale and Delivery Provisions under Section 3:
Obligation to Purchase is: several and not joint / /
several and not joint; provided, however
that, notwithstanding the provisions of
Section 9 of the Underwriting Agreement,
the Representative(s) listed above will,
subject to the terms and conditions
hereof, purchase or cause to be
purchased any Securities which any
defaulting Underwriter or Underwriters
have agreed but failed or refused to
purchase pursuant to Section 3
hereof /X/
joint and several / /
Payment to Be Made in: New York Clearinghouse (next day) funds / /
or Federal (same day) funds / /
Delivery of Securities: Physical delivery to Underwriters through
Representatives / /
or delivery to Underwriters through
facilities of DTC by delivery to DTC
of one or more definitive global
securities in book-entry form /X/
Closing Date, Time and Location: September 24, 1997, 9:00 a.m.,
Xxxxxxx, Carton & Xxxxxxx,
000 X. Xxxxx Xxxxxx, Xxxxxxx, XX 00000
Address for Notice to Representatives:
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Debt Syndicate Department
SCHEDULE II
Underwriters Principal Amount
------------ ----------------
Xxxxxx Xxxxxxx & co. Incorporated $ 30,000,000
X.X. Xxxxxx Securities Inc. 30,000,000
Xxxxxxx, Xxxxx & Co 30,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 30,000,000
Salomon Brothers Inc. 30,000,000
$150,000,000
------------
------------
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from XxXxxxxx'x Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on
, 19 , (the "Delivery Date"),
$
principal amount of the Company's
(the "Securities") offered by the Company's Final Prospectus dated
, 19 , receipt of a copy of which is hereby acknowledged, at a purchase
price of % of the principal amount thereof, plus accrued interest, if
any, thereon from , 19 , to the date of payment and delivery,
and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM on the Delivery Date to or upon the order of
the Company in New York Clearinghouse (next day) funds or Federal (same
day) funds, as specified in Schedule I to the Underwriting Agreement
referred to in the Final Prospectus mentioned above, at your office or at
such other places as shall be agreed between the Company and the
undersigned upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written
communication addressed to the Company not less than five full business
days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued
in a denomination equal to the aggregate principal amount of Securities
to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to
sell and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the
failure thereof) and (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited
on the date hereof, shall not on the Delivery Date be prohibited under
the laws of the jurisdiction to which the undersigned is subject, and (2)
the Company, on or before the Delivery Date, shall have sold to certain
underwriters (the ``Underwriters'') such principal amount of the
Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above. Promptly
after completion of such sale to the Underwriters, the Company will mail
or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment for
the Securities, and the obligation of the Company to cause the Securities
to be sold and delivered, shall not be affected by the failure of any
purchaser to take delivery of and make payment for the Securities
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the
other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this
contract is acceptable to the Company, it is required that the Company
sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below.
This will become a binding contract between the Company and the
undersigned, as of the date first above written, when such counterpart is
so mailed or delivered.
This agreement shall be governed by and construed and enforced in
accordance with, the internal laws of the State of Illinois.
Very truly yours,
(Name of Purchaser)
By ----------------------------------
(Signature and Title of Officer)
(Address)
Accepted:
XxXXXXXX'X CORPORATION
By ------------------------------
(Authorized Signature)
