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DRAFT: MAY 19, 1997
XXXXXX & XXXXXXXX CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
To the Underwriter or
Underwriters Named in
the within mentioned
Terms Agreement
__________, 1997
Ladies and Gentlemen:
1. Introductory. Xxxxxx & Xxxxxxxx Corporation, a Wisconsin corporation
(the "Company"), proposes to issue and sell from time to time certain of its
unsecured and unsubordinated debt securities registered under the registration
statement referred to in Section 2(a) (the "Registered Securities"). The
Registered Securities will be issued under an indenture, dated as of ______,
1997 (the "Indenture"), between the Company and Bank One, N.A., as Trustee
(the "Trustee"), in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms, with
all such terms for any particular series of the Registered Securities being
determined at the time of sale. Particular series of the Registered Securities
will be sold pursuant to a Terms Agreement referred to in Section 3, for resale
in accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such Offered Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement
referred to in Section 3 are hereinafter referred to as the "Representatives";
provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term "Representatives", as used in this
Agreement (other than in Sections 2(b) and 6 and the second sentence of Section
3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-25271), including a
prospectus and a preliminary prospectus supplement, relating to the
Registered Securities has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3 and including all documents incorporated by
reference therein and all exhibits thereto, is hereinafter
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referred to as the "Registration Statement", and the prospectus included
in such Registration Statement, as supplemented as contemplated by
Section 3 to reflect the terms of the Offered Securities and the terms
of offering thereof, as most recently filed with the Commission pursuant
to and in accordance with Rule 424(b) ("Rule 424(b)") under the
Securities Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus," except that if any revised prospectus shall be provided to
the Underwriters by the Company for use in connection with the offering
of the Registered Securities, which differs from the Prospectus most
recently filed, or transmitted for filing, with the Commission (whether
or not such revised prospectus is required to be filed by the Company
pursuant to Rule 424(b)), the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the
Underwriters for such use, including all material incorporated by
reference therein. No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act. All references
in this Agreement to financial statements and schedules and
other information that is "contained," "included" or "stated" in the
registration statement relating to the Registered Securities, any
preliminary prospectus or the Prospectus (and all other references of
like import) shall be deemed to mean and include all such financial
statements and schedules and other information that are or are deemed to
be incorporated by reference in such registration statement, any
preliminary prospectus or the Prospectus, as the case may be. Any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the registration statement relating to the Registered
Securities, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the
effective date of such registration statement or the issue date of any
preliminary prospectus or the Prospectus, as the case may be, and on or
prior to the completion of the applicable offering and which is deemed to
be incorporated therein by reference.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed as to
form in all material respects to the requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder (the "Rules and
Regulations") and did not include 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, and on the date
of each Terms Agreement referred to in Section 3, the Prospectus will
conform as to form in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations thereunder,
and on such date the Prospectus will not include 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,
except that the foregoing does not apply to (a) statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives,
if any, specifically for use therein and (b) that part of the
Registration Statement that constitutes the Statement of Eligibility on
Form T-1 of the Trustee under the Trust Indenture Act filed as an exhibit
to the Registration Statement (the "Form T-1").
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(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Wisconsin,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or in good standing would not
individually or in the aggregate reasonably be expected to have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
(as defined in Rule 1-02(x) of the Commission's Regulation S-X) taken as
a whole (a "Material Adverse Effect").
(d) The Company does not have a "significant subsidiary" as defined
in Rule 1-02(w) of the Commission's Regulation S-X or any subsidiaries
that in the aggregate constitute a "significant subsidiary" as so
defined.
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act; the Offered Securities have been
duly authorized; and when the Offered Securities are delivered and paid
for pursuant to the Terms Agreement on the Closing Date (as defined
below) or pursuant to Delayed Delivery Contracts (as hereinafter
defined), the Indenture will have been duly executed and delivered, such
Offered Securities will have been duly executed, authenticated, issued
and delivered and will conform in all material respects to the
description thereof contained in the Prospectus, and the Indenture and
such Offered Securities will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(f) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such
as have been obtained and made, or are required to be obtained and made
after the date hereof, under the Act and the Trust Indenture Act and such
as may be required under state securities laws.
(g) 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 Offered
Securities and compliance with the terms and provisions thereof will not
(i) result in a breach or violation of any of the terms and
provisions of, or constitute a default under (including, without
limitation, any event that with notice or lapse of time, or both, would
constitute a default), or result in the creation or imposition of any
lien, charge or encumbrance upon any assets or properties of the Company
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction
over the Company or any of
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its properties, assets or operations, or any agreement or instrument to
which the Company is a party or by which the Company is bound or to
which any of the properties, assets or operations of the Company is
subject, or (ii) contravene any provision of the charter or by-laws
(or similar organizational documents) of the Company, except, in the
case of clause (i) above, to the extent that any such breach, violation,
default, lien, charge or encumbrance would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect; and
the Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement).
(h) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(i) Except as disclosed in the Prospectus, the Company has good and
marketable title to all material real properties and all other material
properties and assets owned by it, in each case free from liens,
encumbrances and defects that would materially affect the value thereof
or materially interfere with the use made or to be made thereof by it;
and except as disclosed in the Prospectus, the Company holds any leased
material real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or
to be made thereof by it.
(j) The Company possesses adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary
to conduct the business now operated by it, except for such certificates,
authorities and permits the lack of possession of which would not
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect, and has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company, would
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
(k) Except as disclosed in the Prospectus, no labor disturbance by
the employees of the Company exists or, to the knowledge of the Company,
is imminent that could reasonably be expected to have a Material Adverse
Effect.
(l) The Company owns, possesses or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual
property rights") necessary to conduct the business now operated by it,
or currently employed by it (except for such intellectual property rights
currently employed by the Company the lack of ownership, possession or
acquisition on reasonable terms of which would not reasonably be expected
to have a Material Adverse Effect), and has not received any notice of
infringement of or conflict with asserted rights of others with respect
to any
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intellectual property rights that, if determined adversely to the
Company, would individually or in the aggregate reasonably be expected to
have a Material Adverse Effect.
(m) Neither the Company nor any of its assets or operations is in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating
to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human
exposure to hazardous or toxic substances (collectively, "environmental
laws"), and the Company does not own or operate any real property
contaminated with any substance that is subject to any environmental
laws, is not liable for any off-site disposal or contamination pursuant
to any environmental laws or is not subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate reasonably be expected to have a
Material Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(n) There are no pending actions, suits, investigations or
proceedings against or affecting the Company or any of its properties,
assets or operations that, if determined adversely to the Company, would
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under the Indenture,
the Terms Agreement (including the provisions of this Agreement) or any
Delayed Delivery Contracts, or which are otherwise material in the
context of the sale of the Offered Securities; and, to the Company's
knowledge, no such actions, suits, investigations or proceedings are
threatened or contemplated.
(o) The financial statements included in the Registration Statement
and Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
any schedules included in the Registration Statement present fairly the
information required to be stated therein; and the assumptions used in
preparing any pro forma financial information included in the
Registration Statement and the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(p) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event that is
reasonably expected by the Company to result in a material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole, and, except as disclosed in or
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contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(q) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the net proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(r) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes, and the
Company agrees to comply with such Section if prior to the completion of
the distribution of the Offered Securities it commences doing such
business.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications (the "Terms Agreement")
at the time the Company determines to sell the Offered Securities. The Terms
Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms which
will be Underwriters, the names of any Representatives, the principal amount to
be purchased by each Underwriter, the purchase price to be paid by the
Underwriters and the terms of the Offered Securities not already specified in
the Indenture, including, but not limited to, interest rate, maturity, any
redemption provisions and any sinking fund requirements and whether any of the
Offered Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts. The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the Terms
Agreement (the "Lead Underwriter") and the Company agree as the time for
payment and delivery, being herein and in the Terms Agreement referred to as
the "Closing Date"), the place of delivery and payment and any details of the
terms of offering that should be reflected in the prospectus supplement
relating to the offering of the Offered Securities. For purposes of Rule
15c6-1 under Exchange Act, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering,
other than Contract Securities (as defined below) for which payment of funds
and delivery of securities shall be as hereinafter provided. The obligations
of the Underwriters to purchase the Offered Securities will be several and not
joint. It is understood that the Underwriters propose to offer the Offered
Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant
to delayed delivery contracts, the Company authorizes the Underwriters to
solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. 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. On the
Closing Date, the Company will pay, as compensation, to the Representatives for
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the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not
have any responsibility in respect of the validity or the performance of
Delayed Delivery Contracts. If the Company executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter will
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Lead Underwriter determines that such reduction shall be
otherwise than pro rata and so advises the Company. The Company will advise
the Lead Underwriter not later than the business day prior to the Closing Date
of the principal amount of Contract Securities.
If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in
the form of one or more permanent global securities in definitive form (the
"Global Securities") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") or with DTC and registered in the name of a nominee for
DTC. Interests in any permanent Global Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Offered Securities shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York, Chicago or Milwaukee previously designated
to the Lead Underwriter by the Company at a bank acceptable to the Lead
Underwriter, in each case drawn to the order of the Company at the place of
payment specified in the Terms Agreement on the Closing Date, against delivery
to the Trustee, as custodian for DTC, or to DTC of the Global Securities
representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the registration statement relating to the Registered
Securities, in the form it became effective and of all amendments thereto and
that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and
if consented to by the Lead Underwriter (which consent shall not be
unreasonably withheld), subparagraph (5)) not later than the second
business day following the execution and delivery of the Terms Agreement
or, if applicable, such later time as may be permitted by Rule 424.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable opportunity
to comment on any such proposed amendment or supplement; and the Company
will also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best
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efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, 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 any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time
to amend the Prospectus to comply with the Act, the Company promptly will
notify the Lead Underwriter of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or supplement
that will correct such statement or omission or an amendment that will
effect such compliance. Neither the Lead Underwriter's consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of
the registration statement relating to the Registered Securities, (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
Terms Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
Terms Agreement, which will satisfy the provisions of Section 11(a) of
the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, any related preliminary prospectus, any related
preliminary prospectus supplement, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Lead Underwriter reasonably requests. The Company
will pay the expenses of printing and distributing to the Underwriters
all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the Lead
Underwriter reasonably designates and will continue such qualifications
in effect so long as required for the distribution; provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or as a dealer in securities or to file a general
consent to service of process in any jurisdiction.
(g) During the period of 10 years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to shareholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Exchange Act or mailed to shareholders, and (ii) from
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time to time, such other information concerning the Company as the Lead
Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under the Terms Agreement (including the provisions of
this Agreement), for any filing fees or other expenses (including fees
and disbursements of counsel) in connection with qualification of the
Registered Securities for sale under the laws of such jurisdictions as
the Lead Underwriter may reasonably designate and the printing of
memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Offered Securities, for any applicable
filing fee incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, any review by the
National Association of Securities Dealers, Inc. of the Registered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of Registered
Securities and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or any
other amendments or supplements to the Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission
a registration statement under the Act relating to United States
dollar-denominated debt securities issued or guaranteed by the Company
and having a maturity of more than one year from the date of issue, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the Terms
Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of
the Company herein on and as of the Closing Date as if made on and as of the
Closing Date, to the accuracy of the 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 precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Xxxxxx Xxxxxxxx LLP confirming that they are independent
public accountants within the meaning of the Act and the Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any
schedules examined by them and included in the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Rules and Regulations thereunder;
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(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on any unaudited
financial statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if any,
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Rules and Regulations thereunder or any
material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained
in the Prospectus, the unaudited consolidated net sales,
income from operations and net income amounts or other
amounts constituting such "capsule" information and described
in such letter do not agree with the corresponding amounts
set forth in the unaudited consolidated financial statements
or were not determined on a basis substantially consistent
with that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of the
Terms Agreement, there was any change in the capital stock or
any increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at the date
of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than
three business days prior to the date of the Terms Agreement,
there was any decrease in consolidated total current assets
or any increase in total current liabilities, as compared
with amounts shown on the latest balance sheet included in
the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases in net sales or income
from operations or any decreases in the ratios of earnings to
fixed charges or EBITDA to interest expense, in each case, as
compared with the corresponding period of the previous year;
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except in all cases set forth in clauses (C) and (D) above
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(iv) they have read any unaudited pro forma information
included in the Prospectus; inquired of certain officials of the
Company who have responsibility for financial and accounting
matters about the basis for their determination of the pro forma
adjustments and whether such unaudited pro forma financial
information complies as to form in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X under the
Act; and proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the unaudited
pro forma financial information;
(v) on the basis of the procedures specified in clause (iv)
above, if applicable, nothing came to their attention that caused
them to believe that the unaudited pro forma financial information
referred to in clause (iv) above do not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X under the Act and that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of that information; and
(vi) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of
the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations thereunder and Section 4(a) of
this Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and
be continuing in effect and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
shall be contemplated by the Commission.
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(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (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 that results
from any adverse change, or any development or event involving a
prospective adverse change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries; (iv) any banking moratorium declared by U.S. Federal or New
York authorities; or (v) any outbreak or escalation of major hostilities
in which the United States of America 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 the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxx X. Xxxxxx, General Counsel of the Company,
substantially 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
Wisconsin, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions within the United
States of America in which its ownership or lease of property or
the conduct of its business requires such qualification, except to
the extent that the failure to be so qualified or in good standing
would not individually or in the aggregate reasonably be expected
to have a Material Adverse Effect;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and the Offered Securities have been duly
authorized;
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(iii) 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 Offered Securities and compliance with the terms and
provisions thereof will not (i) result in a breach or violation of
any of the terms and provisions of, or constitute a default under
(including, without limitation, any event that with notice or lapse
of time, or both, would constitute a default), or result in the
creation or imposition of any lien, charge or encumbrance upon any
assets or properties of the Company under, any statute, any rule,
regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any of its properties, assets or operations, or any agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the properties, assets or operations of
the Company is subject, or (ii) contravene any provision of the
charter or by-laws (or similar organizational documents) of the
Company, except, in the case of clause (i) above, to the extent
that any such breach, violation, default, lien, charge or
encumbrance would not individually or in the aggregate reasonably
be expected to have a Material Adverse Effect; and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement);
(iv) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(v) The descriptions of statutes, legal and governmental
proceedings and contracts under "Business -- Employees" and
"Business -- Emissions Regulation of Air Cooled Gasoline Engines"
in the Registration Statement and Prospectus are accurate and
fairly present in all material respects the information required
to be shown.
In addition, such counsel shall state that he has no reason to
believe that the registration statement relating to the Registered
Securities, as of its effective date, or any amendment thereto, as
of its date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of the
Closing Date, or any amendment or supplement thereto, as of its
date or as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no belief as to the
financial statements or other financial data or the Form T-1
contained in the Registration Statement or the Prospectus.
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(e) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxx, Xxxxx & Xxxxx, special counsel for the Company,
substantially to the effect that:
(i) The Indenture has been duly qualified under the Trust
Indenture Act; the Offered Securities other than any Contract
Securities have been duly executed, authenticated, issued and
delivered; the Indenture and the Offered Securities other than any
Contract Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed Delivery
Contracts, will constitute, valid and legally binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Offered
Securities other than any Contract Securities conform, and any
Contract Securities, when so issued and delivered and sold will
conform, in all material respects, to the description thereof
contained in the Prospectus;
(ii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Offered Securities by
the Company, except such as have been obtained and made under the
Act and the Trust Indenture Act and such as may be required under
state securities laws (it being understood that such opinion may be
limited to such consents, approvals, authorizations, orders and
filings that a nationally recognized firm of lawyers exercising
customary professional diligence would reasonably recognize as
being directly applicable to the Company in connection with the
transactions contemplated by this Agreement); and
(iii) The Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein, and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated under the Act, and the registration statement relating
to the Registered Securities, as of its effective date, the
Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as to
form in all material respects with the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations thereunder; it
being understood that such counsel need not express an opinion as
to the financial statements or other financial data or the Form T-1
contained in the Registration Statement or the Prospectus.
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In addition, such counsel shall state that it has no reason to
believe that the registration statement relating to the Registered
Securities, as of its effective date, or any amendment thereto, as
of its date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of the
Closing Date, or any amendment or supplement thereto, as of its
date or as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no belief as to the
financial statements or other financial data or the Form T-1
contained in the Registration Statement or the Prospectus.
In rendering such opinion, Xxxxx, Xxxxx & Xxxxx may rely as to all
matters governed by Wisconsin law upon the opinion of Xx. Xxxxxx referred
to above.
(f) The Representatives shall have received from Sidley & Austin,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of
the Offered Securities, the Registration Statement, the Prospectus and
other related matters as the Representatives may 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. In
rendering such opinion, Sidley & Austin may rely as to all matters
governed by Wisconsin law upon the opinion of Xx. Xxxxxx referred to
above.
(g) The Representatives shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied in all material
respects with all agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date, that
no stop order suspending the effectiveness of the Registration Statement
or of any part thereof has been issued and is in effect and no
proceedings for that purpose have been instituted or are contemplated by
the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event that is reasonably expected
by the Company to result in a material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, except as set forth
in or contemplated by the Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated the
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of
subsection (a) of this Section,
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except that the specified date referred to in such subsection will be a
date not more than three business days prior to the Closing Date for the
purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of
the Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
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 any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or 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 such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; 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 in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in the Terms Agreement; provided, further, however, that
the foregoing indemnity with respect to any preliminary prospectus or
preliminary prospectus supplement shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter)
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities if a copy of the Prospectus was not sent or
given to such person at or prior to the written confirmation of the sale of
such Offered Securities to such person if required by the Act and the
Prospectus would have cured the defect giving rise to such loss, claim, damage
or liability.
(b) Each Underwriter will severally and not jointly 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 any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon
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and in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter
consists of the information described as such in the Terms Agreement.
(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
subsection (a) or (b) above, notify the indemnifying party 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 subsection (a) or (b) above. 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
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. In no event shall the indemnifying party be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from its own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld or delayed), effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 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 Offered
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
17
18
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. 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 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 Offered 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 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 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, 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.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total principal amount of Offered Securities, the Lead Underwriter may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
under the Terms Agreement (including the provisions of this Agreement), to
purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Offered
Securities and arrangements satisfactory to the Lead Underwriter and the
Company for the purchase of such Offered Securities
18
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by other persons are not made within 36 hours after such default, the Terms
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. The respective commitments of
the several Underwriters for the purposes of this Section shall be determined
without regard to reduction in the respective Underwriters' obligations to
purchase the principal amounts of the Offered Securities set forth opposite
their names in the Terms Agreement as a result of Delayed Delivery Contracts
entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Company or its officers and of the several Underwriters set forth in or
made pursuant to the Terms Agreement (including the provisions of this
Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant
to Section 6 shall remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of the Terms Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 5(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 00000 X. Xxxxx Xx., Xxxxxxxxx, XX 00000,
Attention: Chief Financial Officer.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to
in Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
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12. Counterparts. This Agreement and the Terms Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
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If the foregoing is in accordance with your understanding, please sign and
return six counterparts hereof.
Very truly yours,
XXXXXX & XXXXXXXX CORPORATION
By:________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
as of the date first above written
[Insert signature block(s) for the
Representative or Representatives
acting on behalf of the Underwriters,
or for each Underwriter if no
syndicate]
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ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on ....................................., 1997(1)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
XXXXXX & XXXXXXXX CORPORATION
c/o CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
Attention: Investment Banking Department - Transactions Advisory Group
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxx & Xxxxxxxx
Corporation, a Wisconsin corporation ("Company"), and the Company agrees to
sell to the undersigned, [If one delayed closing, insert--as of the date
hereof, for delivery on __________, 1997 ("Delivery Date"),] $ ____________
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated __________, 1997 and a Prospectus
Supplement dated __________, 1997 relating thereto, receipt of copies of which
is hereby acknowledged, at __% of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("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:
_________________
(1) Insert date which is third full business day prior to Closing
Date under the Terms Agreement.
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Delivery Date Principal Amount
_______________ ________________
_______________ ________________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that 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 Federal (same day) funds at the office
of __________ at __________.M. on--the--such--Delivery Date upon delivery to or
for the account of the undersigned of the Securities to be purchased by the
undersigned--for delivery on such Delivery Date--in definitive fully registered
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and 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 (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States of America to which the undersigned is
subject and (2) the Company shall have sold to the Underwriters the total
principal amount of the Securities less the principal amount thereof covered by
this and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
governs such investment.
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 copies of the opinions 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.
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It is understood that the acceptance of any such Contract 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 so mailed or delivered.
Yours very truly,
(Name of Purchaser)
By ____________________________
Name:
Title:
(Address of Purchaser)
Accepted, as of the above date.
XXXXXX & XXXXXXXX CORPORATION
By _____________________________
Name:
Title:
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25
[FORM OF TERMS AGREEMENT]
XXXXXX & XXXXXXXX CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
________, 1997
To: The [Representatives of the] Underwriters identified herein
Ladies and Gentlemen:
The undersigned agrees to sell to the several Underwriters named below for
their respective accounts, on and subject to the terms and conditions of the
Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 333-25271) ("Underwriting Agreement"), the following
securities ("Offered Securities") on the following terms:
TITLE: __________________________
PRINCIPAL AMOUNT: $______________
INTEREST: __ % per annum, from ______ 1997, payable semiannually on
________ and _______, commencing _______, 19__, to holders of record on the
preceding ________ or _______, as the case may be.
MATURITY: _________, 20__
OPTIONAL REDEMPTION:
SINKING FUND:
LISTING:
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DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be ______,
19__. Underwriters' fee is __ % of the principal amount of the Contract
Securities.]
PURCHASE PRICE: __% of principal amount, plus accrued interest [, IF
ANY,] from ______, 19__
EXPECTED REOFFERING PRICE: __% of principal amount, subject to change by
the [Representatives] [Underwriters]
CLOSING: __________ A.M. on ____________, 1997, at ____________, in
Federal (same day) funds.
SETTLEMENT AND TRADING: Book-Entry Only via DTC. The Offered Securities
will trade in DTC's Same Day Funds Settlement System.
BLACKOUT: Until __ days after the Closing Date.
NAMES AND ADDRESS OF [REPRESENTATIVES][UNDERWRITERS]:
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging
at the office of Credit Suisse First Boston Corporation at ___________________
at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of (i) the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of
the prospectus supplement cover page concerning the terms of the offering by
the Underwriters, the legend concerning over-allotments and stabilizing on the
inside front cover page of the prospectus supplement and the concession and
reallowance figures appearing in the __ paragraph under the caption
"Underwriting" in the prospectus supplement and the information contained in
the _____ paragraph under the caption "Underwriting" in the prospectus
supplement and (ii) the following information in the prospectus supplement
furnished on behalf of [insert name of Underwriter]: [INSERT DESCRIPTION OF
INFORMATION, SUCH AS MATERIAL RELATIONSHIP DISCLOSURE UNDER THE CAPTION
"UNDERWRITING" IN THE PROSPECTUS SUPPLEMENT.]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and
the several Underwriters in accordance with its terms.
Very truly yours,
XXXXXX & XXXXXXXX CORPORATION
By ___________________________
Name:
Title:
The foregoing Terms Agreement is hereby confirmed and accepted as of the
date first above written.
[Insert signature block(s) for the
Representative or Representatives
acting on behalf of the Underwriters,
or for each Underwriter if no syndicate]
By _______________________
Name:
Title:
3
28
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT OF
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