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STB DRAFT
9/24/97
Exhibit 1
THE X.X. XXXXXXX COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
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1. Introductory. The X.X. Xxxxxxx Company, a Delaware corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities registered under the registration statement referred
to in Section 2(a) ("Registered Securities"). The Registered Securities will be
issued under an indenture, dated as of , 1997 ("Indenture"), between the Company
and The Chase Manhattan Bank, as Trustee ("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 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), 5(c) 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- ), including a prospectus,
relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter 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 first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of
1933, as amended ("Act"), including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of
1939, as amended ("Trust Indenture Act") and, as to the documents
incorporated therein, the Securities Exchange Act of 1934, as amended
("Exchange Act"), and the rules and regulations of the Commission under
the Act, the Trust Indenture Act and the Exchange Act ("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 Registration
Statement and the Prospectus will conform in all respects to the
requirements of the Act, the Trust Indenture Act and, as to the
documents incorporated therein, the Securities Exchange Act, and the
Rules and Regulations, and neither of such documents will 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
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. The
documents incorporated by reference in the Registration Statement and
the Prospectus, at the time such incorporated documents were filed with
the Commission, complied in all material respects with the requirements
of the Exchange Act, and did 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 light of the
circumstances under which they were made, not
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misleading. The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus or Prospectus.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) 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 where the failure, individually or in the
aggregate, to be so qualified or licensed would not have a material
adverse effect on the business, financial position or results of
operations of the Company or the Company and its subsidiaries, taken as
a whole; and the Company has full power and authority to execute and
deliver this Agreement, any Delayed Delivery Contract (as hereinafter
defined), and the Indenture; the Company has full power and authority
to issue and sell the Offered Securities as contemplated in this
Agreement.
(d) Each subsidiary of the Company has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of 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 where the
failure, individually or in the aggregate, to be so qualified or
licensed would not have a material adverse effect on the business,
financial position or results of operations of the Company and its
subsidiaries, taken as a whole; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
(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, the Indenture
will have been duly executed and delivered, such Offered Securities
will have been duly executed, authenticated, issued and delivered and
will conform 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, 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) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(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 result in (i) 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,
domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or (ii) any
agreement or instrument to which the Company or any such subsidiary 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 (iii) the charter or by-laws of the Company or any such
subsidiary except, in the case of clauses (i) and (ii), for such
breaches, violations or defaults which would not have a material
adverse effect on the business, financial position or results of
operations of the Company or the Company and its subsidiaries, taken as
a whole, or on the offering contemplated by the Terms Agreement 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).
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(h) 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 under the Act and the Trust Indenture
Act and such as may be required under state securities laws.
(i) The Company and each of its subsidiaries is in compliance in
all material respects with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions, except such
breaches, violations or defaults which would not have a material
adverse effect on the business, financial position or results of
operations of the Company and its subsidiaries, taken as a whole; and
neither the Company nor any of its subsidiaries is in breach or
violation of, or in default under, any material agreement or contract
to which it is a party or by which any of its properties is bound or
its charter or by-laws.
(j) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, 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 them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased 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 them.
(k) The Company and its subsidiaries possess adequate and effective
certificates, authorities, permits and licenses issued by appropriate
governmental agencies, regulatory authorizations or bodies (including
all licenses required by the Federal Communications Commission (the
"FCC")) necessary to conduct the business now operated by them and have
not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority, permit or license
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the business, financial position or results of
operations of the Company and its subsidiaries taken as a whole, and
each of the Company and its subsidiaries are presently conducting their
respective businesses in substantial compliance with all applicable
rules and regulations of the FCC, and each of them has made all
material filings required under any federal, state, local or other law,
regulation or rule (including any material filings required by the FCC)
and has obtained all material authorizations, consents and approvals
from other persons, in order to conduct its respective business.
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the business, financial
position or results of operations of the Company and its subsidiaries
taken as a whole.
(l) The Company and its subsidiaries own, possess 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 them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the business, financial
position or results of operations of the Company and its subsidiaries
taken as a whole.
(m) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries 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"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a material adverse effect on
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the business, financial position or results of operations the Company
and its subsidiaries taken as a whole; and the Company is not aware of
any pending investigation which might lead to such a claim.
(n) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
business, financial condition or results of operations of the Company
and its subsidiaries taken as a whole, 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 Contract, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, 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 if pro forma
financial statements are included in the Registration Statement and
Prospectus: the assumptions used in preparing the pro forma financial
statements 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
involving a prospective 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 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 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.
(s) Each of the Company's subsidiaries with revenues, assets or
liabilities greater than $30 million as of and for the 12 months ended
the last day of its most recent full fiscal year is set forth in
Exhibit A hereto or as an Exhibit to the Terms Agreement which modifies
such Exhibit A.
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 ("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
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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 the 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 hereinafter defined) 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 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 advise 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") and registered in the name of Cede & Co., as 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
(if the Terms Agreement specifies that the Offered Securities will not trade in
DTC's Same Day Funds Settlement System) by certified or official bank check or
checks in New York Clearing House (next day) funds or (if the Terms Agreement
specifies that the Offered Securities will trade in DTC's Same Day Funds
Settlement System) in Federal (same day) funds by official check or checks or
wire transfer to an account in New York 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 at the place of payment specified in the Terms
Agreement on the Closing Date, against delivery to the Trustee as custodian for
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,
including all exhibits, 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, subparagraph (5)) not
later than the second business day following the execution and delivery
of the Terms Agreement.
(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
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stop order proceedings in respect of the Registration Statement or of
any part thereof and will use its best 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 which will correct such statement or
omission or an amendment which 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, including all exhibits, 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 and at such
locations 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 and the determination of their eligibility for
investment under the laws of such jurisdictions as the Lead Underwriter
designates and will continue such qualifications in effect so long as
required for the distribution, provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any state (except service of
process with respect to the offering and sale of the Offered Securities
and will promptly advise the Representatives of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Offered Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose.
(g) During the period of five 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 stockholders 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 stockholders, and (ii) from time to
time, such other information concerning the Company as the Lead
Underwriter may reasonably request.
(h) The Company will pay all fees, expenses and taxes (other than
any transfer taxes and fees and expenses of counsel for the
Underwriters except as set forth below) incident to the performance of
its obligations under the Terms Agreement (including the provisions of
this Agreement), including, without limitation, any filing fees or
other expenses (including fees and disbursements of counsel) in
connection with qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws of
such jurisdictions as the Lead Underwriter may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Offered Securities,
any applicable filing fee incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in
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connection with, the 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, any expenses incurred
in connection with the preparation, printing and distribution of the
Registration Statement, the Prospectus, any preliminary prospectuses,
any preliminary prospectus supplements or any other amendments or
supplements to the Registration Statement or the Prospectus to the
Underwriters, all fees and expenses incurred in connection with the
preparation, printing and distribution of this Agreement, the Terms
Agreements, any Agreement Among Underwriters, any dealer agreements and
Powers of Attorney and the Indenture, all fees and expenses of the
Company's counsel and accountants and any of its other advisers, all
fees and expenses of the Trustee and its counsel, all fees and expenses
related to the assignment of a rating to the Offered Securities by any
qualified rating agency, any listing or other fees incurred in
connection with the listing of the Offered Securities on any securities
exchange and the registration thereof under the Exchange Act.
(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.
(j) The Company will apply the net proceeds for the sale of the
Offered Securities in the manner set forth under the caption "Use of
Proceeds" in the related Prospectus.
(k) Until the termination of the offering of the Offered
Securities, the Company will timely file all documents, and any
amendments to previously filed documents, required to be filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act.
(l) If specified in the Terms Agreement, to use its best efforts to
cause the Offered Securities to be listed on the securities exchange
specified therein.
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, 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 Deloitte & Touche confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings 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 related published Rules and Regulations;
(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
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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, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings 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 operating revenues, operating income 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) if any "pro forma" information is
contained in the Prospectus, that the pro forma such
information has been prepared on a basis consistent
with the historical financial statements, the
assumptions used in preparing the pro forma financial
information 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;
(D) 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, there was any
decrease in consolidated current assets or net
assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(E) 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, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated operating revenues,
operating income amounts of consolidated income
before extraordinary items or net income or in the
ratio of earnings to fixed charges;
except in all cases set forth in clauses (D) and (E) 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 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.
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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 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 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 or any state securities regulatory authority.
(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 any 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 or preferred
stock 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 or preferred
stock 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
or in the over-the-counter market; (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 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 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 Xxxxx & Xxxxxxxxx, counsel for the Company, 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; 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;
(ii) Each of the subsidiaries of the Company
has been duly incorporated and is an existing
corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power
and authority to own its properties and conduct its
business as described in the Prospectus;
(iii) The Company has full power and
authority to execute and deliver the Terms Agreement,
this Agreement, any Delayed Delivery Contract and the
Indenture; 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 this
Agreement) and any Delayed Delivery Contract have been
duly authorized, executed and delivered by the Company
and constitute valid and legally binding obligations of
the Company enforceable against the Company in
accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to
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or affecting creditors' rights and to general equity
principles, and except as rights to indemnity and
contribution hereunder may be limited by federal or
state securities laws.
(v) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee,
constitutes a valid and legally binding obligation of
the Company enforce- able against the Company in
accordance with its 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 Indenture has been
duly qualified under the Trust Indenture Act and
conforms to the description thereof contained in the
Prospectus;
(vi) The Offered Securities have been duly
authorized and the Offered Securities, other than any
Contract Securities, have been duly executed,
authenticated, issued and delivered; 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 enforceable against
the Company in accordance with their terms and are
entitled to the benefits of the Indenture, 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, to the description
thereof contained in the Prospectus;
(vii) The Company has an authorized capital
stock as set forth in the Prospectus; the outstanding
shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights;
(viii) 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;
(x) 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 result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, (1) any statute, any rule, regulation or order of
any governmental agency or body of the State of Ohio or
the United States, (2) the Delaware General Corporation
Law, (3) any order of any governmental agency or body or
any court having jurisdiction over the Company or any of
its subsidiaries or any of their properties which order
has been entered in any legal or governmental proceeding
described in the Registration Statement, the Prospectus
or any document incorporated by reference in the
Prospectus, (4) any agreement, instrument or other
document described in the Registration Statement, the
Prospectus or any document incorporated by reference in
the Prospectus or filed as an exhibit to the
Registration Statement or to any document incorporated
by reference in the Prospectus, or (5) the charter or
by-laws of the Company or any such subsidiary;
(xi) Each of the Company and its
subsidiaries has obtained all material licenses required
by the FCC for the conduct and operation of its
respective businesses, and such licenses are in full
force and effect. The Company and the subsidiaries are
presently
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conducting their respective businesses in substantial
compliance with all applicable rules and regulations of
the FCC;
(xii) The descriptions in the Registration
Statement and the Prospectus of statutes, legal and
governmental proceedings and contracts and other
documents are accurate in all material respects and
fairly present the information required to be shown.
Such counsel confirms that there are no legal or
governmental proceedings required to be described in the
Registration Statement or the Prospectus which are not
described as required or contracts or documents of a
character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits
to the Registration Statement or to any document
incorporated by reference in the Prospectus which are
not described or filed as required (it being understood
that such counsel need not express an opinion as to the
financial statements and schedules or other financial or
statistical data contained or incorporated by reference
in the Registration Statement or the Prospectus);
(xiii) The documents incorporated by
reference in the Registration Statement and the
Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed when such
amendment was filed), complied as to form in all
material respects with the Exchange Act (except as to
the financial statements and schedules and other
financial and statistical data contained or incorporated
by reference therein as to which the such counsel need
not express an opinion);
(xiv) Such counsel has no reason to believe: (x)
that either the Company or any of its subsidiaries is in
breach or violation of any terms or provisions of, or in
default under, any statute, rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over the Company or any of its subsidiaries
or any of their properties, or any agreement or instrument
to which the Company or any such subsidiary 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, (y) that either the
execution, delivery and performance of the Terms Agreement
(including this Agreement), the Indenture and any Delayed
Delivery Contract and the issuance of the Offered
Securities and consummation of the transactions herein and
therein contemplated will result in a breach or violation
of any terms and provisions of, or constitute a default
under, any order or contract or other document that is not
included in the opinion set forth in paragraph (x) above
and that is, in the case of such an order, an order of a
governmental agency or body or any court having
jurisdiction over the Company or any of its subsidiaries
or any of their properties, and, in the case of any such
contract or other document, a contract or other document
to which the Company or any such subsidiary 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 (z) that either the Company or
any of its subsidiaries has failed to obtain any material
license, permit or other governmental or regulatory
authorization required for the conduct and operation of
its respective businesses or that any such license, permit
or authorization is not in full force and effect;
(xv) 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 best of 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
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(xvi) The registration statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the date
of the Terms Agreement, and any amendment or supplement
thereto, as of its date, (except as to the financial
statements and schedules and other financial and
statistical data contained or incorporated by reference
therein and the Trustee's Statement of Eligibility and
Qualification on Form T-1, as to which such counsel need
not express an opinion) complied as to form in all
material respects with the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations; such
counsel have no reason to believe that such registration
statement, as of its effective date, the Registration
Statement, as of the date of the Terms Agreement or as of
the Closing Date, or any amendment 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
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 such
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 not express an opinion
as to the to the financial statements and schedules and
other financial and statistical data contained or
incorporated by reference therein);
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Indenture and the Offered Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives
may require (certain which opinions may be rendered in reliance upon the
opinion of Xxxxx & Xxxxxxxxx delivered pursuant to Section 5(d)), and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) 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 the Terms
Agreement (including the provisions of this Agreement) are true and
correct as of the Closing Date, that the Company has complied 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 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
involving a prospective 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.
(g) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche which meets the requirements of
subsection (a) of this Section, 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.
(h) The Company shall perform such of its obligations under the Terms
Agreement (including the provisions of this Agreement) as are to be
performed by the terms hereof at or before the Closing Date.
(i) If specified in the Terms Agreement, the Offered Securities shall
have been approved for listing on the securities exchange specified
therein, subject only to notice of issuance at or prior to the time of
purchase.
The Company will furnish the Representatives with such copies of such other
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf
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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.
(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 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 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; provided that if such indemnified party shall
have reasonably concluded that there may be defenses available to it which are
different from or additional to those available to the Company (in which case
the Company shall not have the right to direct the defense of such action on
behalf of the indemnified party), then the Company shall be liable to such
indemnified party for the legal and other expenses subsequently incurred by such
indemnified party in connection with its investigation and defense of such
action or claim which shall be paid as incurred (it being understood, however,
that the Company shall not be liable for the expenses of more than one separate
counsel in any one action or series of related actions in the same
jurisdiction). No indemnifying party shall, without the prior written consent of
the indemnified party, 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
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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 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 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.
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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 the offices of the Company at 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxx 00000-0000, Attention:
Xxxxxx X. Xxxxxxxxxx.
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.
12. Counterparts. 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 CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
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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 .................., [19..][20..](1))
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
THE X.X. XXXXXXX COMPANY
c/o [NAME OF LEAD UNDERWRITER OR REPRESENTATIVE]
[address]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from The X.X. Xxxxxxx Company, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , [19 ][20 ]("Delivery Date"),]
[$][payment currency if not $]..............
principal amount of the Company's [INSERT TITLE OF SECURITIES] ("Securities"),
offered by the Company's Prospectus dated , [00 ][00 ] and a Prospectus
Supplement dated , [00 ][00 ] 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:
PRINCIPAL AMOUNT
----------------
DELIVERY DATE
-------------
........................... .............
........................... .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
----------------
(1) Insert date which is third full business day prior to Closing Date under the
Terms Agreement.
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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 wire transfer or official bank check at the office of at .M. on
[the] [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 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 three 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][each]
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject and (2) the Company shall have sold
to the Underwriters the 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 [a copy][copies] 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.
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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
-------------------------------------
-----------------------------------------
(Title of Signatory)
-----------------------------------------
-----------------------------------------
(Address of Purchaser)
Accepted, as of the above date.
THE X.X. XXXXXXX COMPANY
By
--------------------------------
[Insert Title]
19
19
THE X.X. XXXXXXX COMPANY
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
---------------
, [19 ][20 ]
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [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- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
PRINCIPAL AMOUNT: [$][PAYMENT CURRENCY IF NOT $]
INTEREST: [ %per annum, from ,[19 ][20 ], payable
semiannually on and , commencing [19][20], to
holders of record on the preceding or , as the case may
be.] [Zero coupon.]
MATURITY: [19 ][20 ].
OPTIONAL REDEMPTION:
SINKING FUND:
OTHER TERMS:
LISTING: [None.] [ New York Stock Exchange.] [London Stock
Exchange.][Luxembourg Stock Exchange.][other.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] xxxxx xx ,
[00 ][00 ]. Underwriters' fee is % of the principal amount of the
Contract Securities.]
PURCHASE PRICE: % of principal amount, plus accrued interest
[, if any,] from , [00 ][00 ].
20
20
EXPECTED REOFFERING PRICE: % of principal amount, subject to change
by the [Representative[s] [Underwriters].
CLOSING: A.M. on , [19 ][20 ], at ,
in Federal (same day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry Only
via DTC.][other]
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
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 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 the following information in the Prospectus
furnished on behalf of each Underwriter: [(i)] 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 [If
applicable, insert--; 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].(1)
If the Offered Securities are denominated in a currency other than
United States dollars, make appropriate modifications to provisions of the
Terms Agreement (e.g., type of funds specified under "Closing") and
consider including in the Terms Agreement such changes and additions to the
Underwriting Agreement as may be appropriate in the circumstances, e.g.,
expanding the blackout provision in Section 4 to cover debt securities
denominated in the currency in which the Offered Securities are
denominated, expanding Section 5(c)(iv) to cover a banking moratorium
declared by authorities in the country of such currency, expanding Section
5(c)(v) to cover a change or prospective change in, or governmental action
affecting, exchange controls applicable to such currency, and modifying
Section 5(d) to permit a statement to the effect that enforcement of the
Indenture and the Offered Securities is subject to provisions of law which
may require that a judgment for money damages rendered by a court in the
United States be expressed only in United States dollars and appropriate
exceptions as to any provisions requiring payment of additional amounts.
Provision should also be made for an opinion of counsel for the Company
confirming information as to United States tax matters in the Prospectus
and an opinion of foreign counsel for the Company regarding such matters as
foreign consents, approvals, authorizations, licenses, waivers, withholding
taxes, transfer or stamp taxes and any information as to foreign laws in
the Prospectus.
--------
(1) Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
21
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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,
THE X.X. XXXXXXX COMPANY
By
--------------------------------------
[Insert title]
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use first confirmation form. If co-representative,
use second.]
[NAME OF UNDERWRITER OR REPRESENTATIVE]
By
----------------------------------
[Insert title]
[Acting on behalf of itself and as the Representative of the several
Underwriters.]
[NAMES OF UNDERWRITERS OR REPRESENTATIVES]
--------------------------------------------
--------------------------------------------
[Acting on behalf of themselves and as the Representatives of the
several Underwriters.]
By [NAME OF LEAD UNDERWRITER]
By
----------------------------------------
[Insert title]
22
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SCHEDULE A
PRINCIPAL
UNDERWRITER AMOUNT
----------- ------
[Name[s] of underwriter[s]].................... $
-------
Total........................... $
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