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EXHIBIT 1(a)
FORM OF
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
December 1, 1997
To the Representative or Representatives named in the Terms Agreement referred
to below:
Xxxxxxx Xxxxx Barney Holdings Inc., a Delaware corporation (the
"Company"), may issue and sell from time to time series of its debt securities
registered under the registration statement referred to in Section 2(a) hereof.
Such debt securities may have varying designations, denominations, currencies,
interest rates and payment dates, maturities, redemption provisions and selling
prices. The basic provisions set forth herein are intended to be incorporated by
reference in a terms agreement of the type referred to in Section l hereof
relating to the specific series of debt securities to be issued and sold by the
Company pursuant thereto (the "Securities") to the several underwriters named
therein (the "Underwriters"). Unless otherwise specified in the applicable terms
agreement, the Securities will be issued under (i) in the case of senior debt
securities, an indenture dated as of December 1, 1988, between the Company and
Citibank, N.A., as trustee (such trustee or such other replacement or successor
trustee as may be named for such senior debt securities being hereinafter
referred to as the "Senior Debt Trustee") (such indenture, as amended and
supplemented, and as it may from time to time be further amended or supplemented
by one or more indentures supplemental thereto, the "Senior Debt Indenture") or
(ii) in the case of subordinated debt securities, an indenture dated as of
December 1, 1988, between the Company and Bankers Trust Company, as trustee
(such trustee or such other replacement or successor trustee as may be named for
such senior debt securities being hereinafter referred to as the "Subordinated
Debt Trustee", and together with the Senior Debt Trustee, the "Trustee") (such
indenture, as amended and supplemented, and as it may from time to time be
further amended or supplemented by one or more indentures supplemental thereto,
the "Subordinated Debt Indenture", and together with the Senior Debt Indenture,
the "Indenture"). The Terms Agreement relating to the Securities (the "Terms
Agreement"), together with the provisions hereof incorporated therein by
reference, is herein referred to as this "Agreement." If the Underwriters
consist only of the firm or firms referred to in the Terms Agreement as
Representative or Representatives, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
1. TERMS AGREEMENT. The obligation of the Underwriters to
purchase, and the Company to sell, the Securities is evidenced by the Terms
Agreement delivered at the time the Company determines to sell the Securities.
The Terms Agreement specifies the Indenture under which the Securities are to be
issued, the Trustee, the firm or firms which will be Underwriters, the principal
amount of the Securities to be purchased by each Underwriter, the purchase price
to be paid by the Underwriters for the Securities, the public offering price, if
any, of the Securities, whether the Underwriters are authorized to solicit
institutional investors to purchase Securities pursuant to Delayed Delivery
Contracts, certain terms thereof and the Underwriters' compensation therefor,
and any terms of the Securities not otherwise specified in the Indenture
(including,
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but not limited to, designations, denominations, currencies, interest rates and
payment dates, maturity, redemption provisions and sinking fund requirements).
The Terms Agreement specifies any details of the terms of the offering that
should be reflected in a post-effective amendment to the Registration Statement
or the Prospectus Supplement (each as hereinafter defined).
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No.
333-38931), including a prospectus, relating to the Securities has been
prepared by the Company in conformity in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Act"), the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, and
has been filed with the Commission and has become effective. Such
registration statement and prospectus may have been amended or
supplemented from time to time prior to the date of this Agreement; any
such amendment to the Registration Statement was so prepared and filed
and any such amendment has become effective. A prospectus supplement
(the "Prospectus Supplement"), including a prospectus, relating to the
Securities has been so prepared and will be filed pursuant to Rule 424
under the Act. Copies of such registration statement and prospectus,
any such amendment or supplement, the Prospectus Supplement and all
documents incorporated by reference therein which were filed with the
Commission on or prior to the date of the Terms Agreement have been
delivered to you. Such registration statement and prospectuses, as
amended or supplemented to the date of the Terms Agreement and as
supplemented by the Prospectus Supplement, are herein collectively
referred to as the "Registration Statement" and the "Prospectus",
respectively. Any references herein to the Registration Statement or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein which were filed with the Commission
on or prior to the date of the Terms Agreement, and any reference to
the terms "amend", "amendment" or supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer to
and include the filing of any document with the Commission deemed to be
incorporated by reference therein after the date of the Terms
Agreement.
(b) The Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Registration Statement and the Prospectus, as of the
date of the Terms Agreement and at the Closing Date (as hereinafter
defined), and any amendment or supplement thereto, conformed or will
conform in all material respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations; and no such document
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
except that the foregoing shall not apply to (i) statements in or
omissions from any such document in reliance upon, and in con-
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formity with, written information furnished to the Company by or on
behalf of any Underwriter through you, specifically for use in the
preparation thereof or (ii) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of the Trustee.
(c) The documents incorporated by reference in the
Registration Statement or the Prospectus, when they became effective or
were filed with the Commission, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
conformed, and any documents so filed and incorporated by reference
after the date of the Terms Agreement will, when they are filed with
the Commission, conform, in all material respects to the requirements
of the Act and the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES. If so authorized in
the Terms Agreement, the Underwriters may solicit offers from investors of the
types set forth in the Prospectus to purchase Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"). Such
contracts shall be substantially in the form of Exhibit I hereto but with such
changes therein as the Company may approve. Securities to be purchased pursuant
to Delayed Delivery Contracts are herein called "Contract Securities." When
Delayed Delivery Contracts are authorized in the Terms Agreement, the Company
will enter into a Delayed Delivery Contract in each case where a sale of
Contract Securities arranged through you has been approved by the Company but,
except as the Company may otherwise agree, such Delayed Delivery Contracts must
be for at least the minimum amount of Contract Securities set forth in the Terms
Agreement, and the aggregate amount of Contract Securities may not exceed the
amount set forth in the Terms Agreement. The Company will advise you not later
than 10:00 A.M., New York City time, on the third full business day preceding
the Closing Date (or at such later time as you may otherwise agree) of the sales
of the Contract Securities which have been so approved. You and the other
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts.
The amount of Securities to be purchased by each Underwriter
as set forth in the Terms Agreement shall be reduced by an amount which shall
bear the same proportion to the total amount of Contract Securities as the
amount of Securities set forth opposite the name of such Underwriter bears to
the total amount of Securities set forth in the Terms Agreement, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company; provided, however, that the total amount
of Securities to be purchased by all Underwriters shall be the total amount of
Securities set forth in the Terms Agreement less the aggregate amount of
Contract Securities.
The Securities to be purchased by the Underwriters will be
delivered by the Company to you for the accounts of the several Underwriters at
the office specified in the Terms Agreement against payment of the purchase
price therefor by certified or official bank check or checks in New York
Clearing House (next day) funds (or as otherwise specified in the Terms
Agreement) payable to the order of the Company on the date and at the time
specified in the Terms Agreement, or at such other time not later than eight
full business days thereafter as you
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and the Company determine, such time being herein referred to as the "Closing
Date." The obligations of the Underwriters to purchase the Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Securities for sale as set forth in the Prospectus. The Securities will be
prepared in definitive form and in such authorized denominations and registered
in such names as you may request upon at least two business days' prior notice
to the Company and will be made available for checking and packaging at the
office at which they are to be delivered on the Closing Date (or such other
office as may be specified for that purpose in the Terms Agreement) at least one
business day prior to the Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to the
Company on behalf of any other Underwriter for Securities to be purchased by
such Underwriter. Any such payment by you shall not relieve any such Underwriter
of any of its obligations hereunder.
The Company will pay to you on the Closing Date for the
accounts of the underwriters any fee, commission or other compensation specified
in the Terms Agreement. Such payment will be made by certified or official bank
check in New York Clearing House (next day) funds.
4. COVENANTS. The Company covenants and agrees with each
Underwriter that:
(a) The Company will cause the Prospectus Supplement to
be filed pursuant to Rule 424 under the Act and will notify you
promptly of such filing. During the period in which a prospectus
relating to the Securities is required to be delivered under the Act,
the Company will notify you promptly of the time when any amendment to
the Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed and of any request by the
Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for additional information; it will
prepare and file with the Commission, promptly upon your request, any
amendments or supplements to the Registration Statement or Prospectus,
which, in your opinion, may be necessary or advisable in connection
with the distribution of the Securities by the Underwriters; it will
file no amendment or supplement to the Registration Statement or the
Prospectus (other than any prospectus supplement relating to the
offering of securities other than the Securities registered under the
Registration Statement or any document required to be filed under the
Exchange Act which upon filing is deemed to be incorporated by
reference therein) to which you shall reasonably object by notice to
the Company after having been furnished a copy a reasonable time prior
to the filing; and it will furnish to you at or prior to the filing
thereof a copy of any such prospectus supplement or any document which
upon filing is deemed to be incorporated by reference in the
Registration Statement or Prospectus.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of
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the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose; and it will promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(c) Within the time during which a prospectus relating to
the Securities is required to be delivered under the Act, the Company
will comply with all requirements imposed upon it by the Act, as now
and hereafter amended, and by the Rules and Regulations, as from time
to time in force, so far as necessary to permit the continuance of
sales of or dealings in the Securities as contemplated by the
provisions hereof and the Prospectus. If during such period any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the Act, the
Company will promptly notify you and you will amend or supplement the
Registration Statement or the Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such
compliance.
(d) The Company will use its best efforts to qualify the
Securities for sale under the securities laws of such jurisdictions as
you reasonably designate, to maintain such qualifications in effect so
long as required for the distribution of the Securities and, if
requested by the Underwriters, to arrange for the determination of the
legality of the Securities for purchase by institutional investors,
except that the Company shall not be required in connection therewith
to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(e) The Company will furnish to the Underwriters copies
of the Registration Statement and the Prospectus (including all
documents incorporated by reference therein), and all amendments and
supplements to the Registration Statement or the Prospectus which are
filed with the Commission during the period in which a prospectus
relating to the Securities is required to be delivered under the Act
(including all documents filed with the Commission during such period
which are deemed to be incorporated by reference therein), in each case
in such quantities as you may from time to time reasonably request.
(f) So long as any of the Securities are outstanding, the
Company agrees to furnish to you, upon your request (i) as soon as
available, copies of all reports to the Company's security holders
generally and (ii) all reports and financial statements filed by or on
behalf of the Company with the Commission or any national securities
exchange.
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(g) The Company will make generally available to its
security holders and to you as soon as practicable, but in any event
not later than 15 months after the end of the Company's current fiscal
quarter, an earnings statement (which need not be audited) covering a
12-month period beginning after the date upon which the Prospectus
Supplement is filed pursuant to Rule 424 under the Act, which shall
satisfy the provisions of Section ll(a) of the Act.
(h) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is terminated,
will pay all expenses incident to the performance of its obligations
hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issue and delivery of the
Securities, all fees and expenses of the Company's counsel and
accountants, and all costs and expenses incident to the preparing,
printing, filing and distributing of all documents relating to the
offering, and will reimburse the Underwriters for any expenses
(including fees and disbursements of counsel not exceeding the amount,
if any, specified in the Terms Agreement) incurred by them in
connection with the matters referred to in Section 4(d) hereof and the
preparation of memoranda relating thereto, for any filing fee of the
National Association of Securities Dealers, Inc. relating to the
Securities, and for any fees charged by investment rating agencies for
rating the Securities. If the sale of Securities provided for in this
Agreement is not consummated by reason of any failure, refusal or
inability on the part of the Company to perform any agreement on its
part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the
Company is not fulfilled, the Company will reimburse the Underwriters
for all reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection
with the proposed purchase and sale of the Securities.
(i) If so stated in the Terms Agreement, the Company will
use its best efforts to cause an application for the listing of the
Securities on the New York Stock Exchange or such other securities
exchange specified in the Terms Agreement and for the registration of
the Securities under the Exchange Act to become effective.
(j) The Company will not, without your consent, offer or
sell, or publicly announce its intention to offer or sell, any debt
securities denominated in the currency in which the Securities are
denominated having a maturity of more than one year (except under prior
contractual commitments or pursuant to bank credit agreements) during
the period beginning the date of the Terms Agreement and ending the
business day following the Closing Date.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Securities as provided therein
shall be subject to the accuracy, as of the date of the Terms Agreement and the
Closing Date (as if made at the Closing Date), of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder, and to the following additional conditions:
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(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have
been complied with to your satisfaction.
(b) From and after the execution of the Terms Agreement
and until the Closing Date, there shall not have occurred (i) any
change, or any development involving a prospective change, in or
affecting particularly the business or properties of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters, including any Representatives, materially impairs the
investment quality of the Securities; (ii) any downgrading in the
rating of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters, including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(c) The Company shall have furnished to you the opinion,
dated the Closing Date, of the General Counsel of the Company or
counsel specified in the Terms Agreement to the effect that:
(i) The Company has been duly incorporated and
is an existing 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 Prospectus;
(ii) The Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement, to
applicable bankruptcy, reorganization, insolvency, moratorium
and other similar laws affecting creditors' rights generally
and to general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
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(iii) The Securities have been validly authorized
and, when duly executed by the proper officers of the Company,
duly authenticated by the Trustee and delivered as
contemplated hereby and by the Indenture (and, in the case of
any Contract Securities, as contemplated by the Delayed
Delivery Contracts with respect thereto), will be validly
issued and outstanding obligations of the Company enforceable
in accordance with their terms and entitled to the benefits of
the Indenture (subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and conform in all material respects to the description
thereof in the Prospectus;
(iv) The Indenture conforms in all material
respects to the description thereof in the Prospectus;
(v) The Registration Statement has become
effective under the Act and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose
have been initiated or are pending or threatened under the
Act, and the Registration Statement, as of its effective date,
the Prospectus as of the date of the Terms Agreement and the
Closing Date and any amendment or supplement thereto, as of
its date, comply as to form in all material respects with the
requirements of the Act, the Exchange Act and the Trust
Indenture Act and the applicable rules and regulations
thereunder (except that such counsel need express no opinion
as to the financial statements or other data of a financial or
statistical nature or the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee); such counsel
has no reason to believe that either such registration
statement as of its effective date or the Prospectus, as of
the date of the Terms Agreement or the Closing Date, or any
such amendment or supplement as of its date and the Closing
Date contained 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
(except as aforesaid); the descriptions in the Registration
Statement and 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 Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or other data of a
financial or statistical nature contained in the Registration
Statement or the Prospectus;
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(vi) The Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by
the Company;
(vii) No consent, approval, authorization or order
of any court or governmental agency, authority or body is
required for the consummation by the Company of the
transactions contemplated herein, in any Delayed Delivery
Contract or in the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such as
may be required under the securities or blue sky laws of any
jurisdiction in connection with the sale of the Securities;
and
(viii) The execution, delivery and performance of
the Indenture, the Terms Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under any statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over the Company or any material subsidiary of
the Company or any of their properties or any agreement or
instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the
properties of the Company is subject, or the charter or
by-laws of the Company.
(d) The Company shall have furnished you an opinion,
dated the Closing Date, of the General Counsel of the Company, to the
effect as stated in subparagraph (c)(v) above and to the further effect
that:
(i) The Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires
such qualification and the failure so to qualify would have a
material adverse effect on the Company;
(ii) The execution, delivery and performance of
the Indenture, the Terms Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts and the
issuance and sale of the Securities and compliance with the
terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, any agreement or instrument
known to such counsel to which the Company or any subsidiary
of the Company is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary; and
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(iii) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement.
(e) You shall have received from your counsel, as
specified in the Terms Agreement, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities,
the Registration Statement, the Prospectus and other related matters as
you may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(f) The Company shall have furnished to you a
certificate, dated the Closing Date, of the Chairman of the Board, any
Vice Chairman, the President or any Vice President and of the principal
financial or accounting officer of the Company to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied in all material
respects with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or, to their
knowledge, threatened;
(iii) the Registration Statement, including any
supplements or amendments thereto, does not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, including
any supplements or amendments thereto, does not contain any
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; and since the
effective date of the Registration Statement there has not
occurred any event concerning which information is required to
be contained in an amended or supplemented Prospectus
concerning which such information is not contained therein;
and
(iv) there have been no material adverse changes
in the general affairs of the Company and its subsidiaries
taken as a whole or in the financial position as shown by
information contained in the Registration
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Statement and the Prospectus, other than changes disclosed in
or contemplated by the Registration Statement and the
Prospectus.
(g) You shall have received on the Closing Date a letter
from Coopers & Xxxxxxx, dated the Closing Date, to the effect set forth
in Exhibit II hereto, with respect to the Registration Statement and
the Prospectus at the time of the Terms Agreement.
(h) Prior to the Closing Date, the Company shall have
furnished to you such further information, certificates and documents
as you may reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject under the Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in such registration statement when it became effective, or
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus supplement,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against
such loss, claim damage, liability or action; provided, however, that
the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through you, specifically for use in the preparation thereof.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any part of such registration
statement when it became effective, or in the Registration Statement,
the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any
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Underwriter, through you, specifically for use in the preparation
thereof, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending against any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party, and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent that it shall wish, jointly with any
other indemnifying party, similarly notified to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnified party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 6
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the
Securities, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Securities (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus
Supplement. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent
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such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant
to this subsection (d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in the first sentence of this
subsection (d). The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim (which
shall be limited as provided in subsection (c) above if the
indemnifying party has assumed the defense of any such action in
accordance with the provisions thereof) which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section ll(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute shall be several in
proportion to their respective underwriting obligations and not joint.
Promptly after receipt by an indemnified party under this subsection
(d) of the notice of the commencement of any action against such party
in respect of which a claim for contribution may be made against an
indemnifying party under this subsection (d), such indemnified party
shall notify the indemnifying party in writing of the commencement
thereof if the notice specified in subsection (c) above has not been
given with respect to such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under this subsection (d).
(e) The obligations of the Company under this Section 6
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the
Act or the Exchange Act; and the obligations of the Underwriters under
this Section 6 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company (including
any person who, with his consent, is named in the Registration
Statement as about to become a director of the Company), to each
officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the
Act or the Exchange Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters contained in Section 6 hereof,
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shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling
persons, or the Company or any of its officers, directors or any controlling
persons, and shall survive delivery of and payment for the Securities.
8. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter or Underwriters shall fail to take
up and pay for the principal amount of Securities agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of
such Securities in accordance with the terms hereof, and the principal
amount of Securities not purchased does not aggregate more than 10% of
the total principal amount of the Securities set forth in the Terms
Agreement, the remaining Underwriters shall be obligated to take up and
pay for (in proportion to the respective underwriting obligations
hereunder as set forth in the Terms Agreement, except as may otherwise
be determined by you) the Securities which the withdrawing or
defaulting Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take
up and pay for the principal amount of Securities agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of
such Securities in accordance with the terms hereof, and the principal
amount of Securities not purchased aggregates more than 10% of the
total principal amount of Securities set forth in the Terms Agreement
hereto, and arrangements satisfactory to you and the Company for the
purchase of such Securities by other persons are not made within 36
hours thereafter, this Agreement shall terminate. In the event of a
default by any Underwriter as set forth in this Section 8, the Closing
Date shall be postponed for such period, not to exceed seven full
business days, as you shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 4(h) and Section
6 hereof) nor shall any Underwriter (other than an Underwriter who
shall have failed, otherwise than for some reason permitted under this
Agreement, to purchase the principal amount of Securities agreed by
such Underwriter to be purchased under this Agreement) be under any
liability to the Company (except to the extent provided in Section 6
hereof). Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default
hereunder.
9. TERMINATION. You shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior to
the Closing Date if (i) the Company shall have failed, refused or been unable,
at or prior to the Closing Date, to perform, in any material respect, any
agreement on its part to be performed hereunder, or (ii) any other condition of
the Underwriters' obligations is not fulfilled in all material respects. Any
such termination shall be without liability of any party to any other party
except that the provisions of Section 4(h) and Section 6 shall at all times be
effective. If you elect to terminate this Agreement as provided in
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this Section, the Company shall be notified promptly by you by telephone or
telegram, confirmed by letter.
10. NOTICES. All notices or communications hereunder shall be in
writing and, if sent to you, shall be mailed, delivered or telegraphed and
confirmed to you at your address set forth for that purpose in the Terms
Agreement, or, if sent to the Company shall be mailed, delivered or telegraphed
and confirmed to the Company, Xxxxxxx Xxxxx Barney Holdings Inc., at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer. Notices to any
Underwriter pursuant to Section 6 hereof shall be mailed, delivered or
telegraphed and confirmed to such Underwriters address furnished to the Company
in writing for the purpose of communications hereunder. Any party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
11. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company and the Underwriters and their respective successors
and the controlling persons, officers and directors referred to in Section 6
hereof, and no other person shall have any right or obligation hereunder.
In all dealings with the Company under this Agreement, you shall act on behalf
of each of the several Underwriters, and any action under this Agreement taken
by you or by any one of you designated in the Terms Agreement will be binding
upon all the Underwriters.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13. COUNTERPARTS. The Terms Agreement may be executed by one or
more of you and the Company in one or more counterparts, each of which shall
constitute an original and all of which taken together shall constitute one and
the same Agreement.
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XXXXXXX XXXXX XXXXXX HOLDINGS INC.
[Insert specific title of securities]
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]*
XXXXXXX XXXXX BARNEY HOLDINGS INC.
c/o*
Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxxx Xxxxx Xxxxxx
Holdings Inc. (hereinafter called the "Company"), and the Company agrees to
sell to the undersigned, [if one delayed closing, insert: as of the date
hereof, for delivery on 19_ ("Delivery Date")]
[$]_________________________
principal amount of the Company's [title of Securities] (the "Securities"),
offered by the Company's Prospectus relating thereto, receipt of a copy of which
is hereby acknowledged, at a purchase price of ___% of the principal amount
thereof plus accrued interest, if any, and on the further terms and conditions
set forth in this contract.
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company, as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
_____________ ________________
_____________ ________________
Each of such delivery dates is hereinafter referred to as a [Delivery Date.]
Payment for the securities which the undersigned has agreed to purchase for
delivery on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day) funds
(or as otherwise specified in the Terms Agreement) at the office of __________
at [A.][P.]M.,__________ time, on such Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned for delivery on
such Delivery Date in definitive form and in such denominations and registered
in such names as the undersigned may designate by written or telegraphic
communications addressed to the Company not less than five full business days
prior to such Delivery Date. If no designation is received, the Securities will
be registered in the name of the undersigned and issued in the de-
* To be completed when the Terms Agreement is executed by the parties thereto.
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nomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on such Delivery Date.
The obligation of the undersigned to take delivery of, and make payment for,
Securities on [the] [each] Delivery Date shall be subject only to the conditions
that (i) investment in the Securities shall not at such Delivery Date be
prohibited under the laws of any jurisdiction in the United States to which the
undersigned is subject, which investment the undersigned represents is not
prohibited on the date hereof, and (ii) the Company shall have delivered to the
Underwriters the principal amount of the Securities to be purchased by the
Underwriters the principal amount of the Securities to be purchased by them
pursuant to the Underwriting Agreement referred to in the Prospectus mentioned
above and received payment therefor.
Promptly after completion of the sale to the Underwriters, the Company will mail
or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
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 the acceptance of this contract and any 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 requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is mailed or
delivered.
THIS CONTRACT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
Very truly yours,
-------------------------
(Name of Purchaser)
By:
-------------------------
(Title of Signatory)
-------------------------
-------------------------
(Address of Purchaser)
Accepted as of the above date.
XXXXXXX XXXXX BARNEY HOLDINGS INC.
By:
-------------------------------
Name:
Title:
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EXHIBIT II
COMFORT LETTER PROVISIONS
1. They are independent auditors with respect to the Company
within the meaning of the Act and the applicable published rules and
regulations thereunder.
2. In their opinion, the consolidated financial statements and
financial statement schedules audited by them and incorporated by
reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Securities Exchange Act of 1934 and the related published
rules and regulations.
3. They have read the minutes of the meetings of the board of
directors of the Company and its subsidiaries as set forth in the
minute books of all such meetings through the date as set forth
therein.
a. With respect to the unaudited financial statements,
if any, included or incorporated by reference in the
Registration Statement, they have
(i) Performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial statement information as described
in SAS No. 71, Interim Financial Information, on the unaudited
condensed consolidated financial statements for these periods,
described in 3.
(ii) Inquired of certain officials of the Company
who have responsibility for financial statement and accounting
matters whether the unaudited condensed consolidated financial
statements referred to in a(i) comply as to form in all
material respects with the applicable accounting requirements
of the Securities Exchange Act of 1934 as it applies to Form
10-Q and the related published rules and regulations.
4. Nothing came to their attention as a result of the foregoing
procedures, however, that caused them to believe that--
a. (i) Any material modifications should be made to
the unaudited condensed consolidated financial statements
described in 3, incorporated by reference in the Registration
Statement, for them to be in conformity with generally
accepted accounting principles.
(ii) The unaudited condensed consolidated
financial statements described in 3 do not comply as to form
in all material respects with the applicable accounting
requirements of the Securities Exchange Act of 1934 as it
applies to Form 10-Q and the related published rules and
regulations.
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b. (i) At the date of the most recent interim period
financial statement, there was any change in the capital
stock, increase in long-term debt, or any decreases in the
consolidated net current assets or stockholders' equity of the
consolidated companies as compared with amounts shown in the
most recent quarter end unaudited condensed financial balance
sheet incorporated by reference in the Registration Statement
or (ii) for the period from the most recent quarter end to a
subsequent specified date not more than five business days
prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year,
in consolidated revenues, or income before extraordinary
items, except in all instances for changes, increases, or
decreases that the Registration Statement discloses have
occurred or may occur.
5. In addition to the procedures performed above, they have
carried out certain other specified procedures, not constituting an
audit, with respect to certain dollar amounts, percentages and ratios
which are included in the Prospectus and which are specified by the
Underwriters and have found such dollar amounts, percentages and ratios
to be in agreement, except as noted in such letter, with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
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