EXHIBIT 1(a)
XXXXXX XXXXXX COMPANIES INC.
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT
DATED AS OF DECEMBER 1, 1997
1. Introductory. Xxxxxx Xxxxxx Companies Inc., a Virginia corporation
("Company"), proposes to issue and sell from time to time certain of its debt
securities and warrants to purchase certain of its debt securities in an
aggregate principal amount expressed in U.S. dollars or in such foreign
currencies or currency units as the Company shall designate at the time of
offering. Such debt securities, warrants and debt securities subject to such
warrants, registered under the registration statement referred to in Section
2(a), are hereinafter collectively referred to as "Registered Securities".
Registered Securities involved in any offering referred to below are
hereinafter collectively referred to as "Securities", such debt securities
that are Securities are hereinafter referred to as "Purchased Debt
Securities", warrants to purchase debt securities that are Securities are
hereinafter referred to as "Debt Warrants", debt securities subject to
warrants that are Securities are hereinafter referred to as "Warrant Debt
Securities", Purchased Debt Securities and Warrant Debt Securities are
hereinafter collectively referred to as "Debt Securities" and Purchased Debt
Securities and Debt Warrants are hereinafter collectively referred to as
"Purchased Securities". The Debt Securities will be issued under an Indenture,
dated as of December 2, 1996 (the "Indenture"), between the Company and The
Chase Manhattan Bank, as Trustee and the Debt Warrants will be issued under a
debt warrant agreement (the "Debt Warrant Agreement"), between the Company and
a bank or trust company, as Debt Warrant Agent, specified in the Terms
Agreement referred to in Section 3, in one or more series or issues, which may
vary as to interest rates, maturities, redemption provisions, exercise prices,
expiration dates, selling prices, currency or currency units and other terms,
with in each case all such terms for any particular Registered Securities
being determined at the time of sale. Particular Purchased Securities will be
sold pursuant to a Terms Agreement and for resale in accordance with terms of
offering determined at the time of sale.
The firm or firms which agree to purchase the Purchased Securities are
hereinafter referred to as the "Underwriters" of such Purchased 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
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-35143), including a prospectus,
relating to the Registered Securities has been filed with the Securities
and Exchange Commission (the "Commission") and such amendments thereto as
may have been required to the date hereof have been filed and such
registration statement 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 Securities and the terms of offering
thereof, including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus".
(b) On the effective date of the registration statement relating to the
Registered Securities, such registration statement or, if one or more post-
effective amendments shall have been filed with respect to such
registration statement, on the most recent effective date of such post-
effective amendments, such registration statement, as so amended, conformed
in all material respects to the requirements of the Securities Act of 1933
(the "Act"), the Trust Indenture Act of 1939 (the "Trust Indenture Act")
and the rules and regulations of the Commission (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
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make the statements therein not misleading, and, on the date of each Terms
Agreement referred to in Section 3 and on each Closing Date as defined 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
the Rules and Regulations, and none 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.
3. Purchase and Offering of Securities. The obligation of the Underwriters
to purchase the Purchased Securities will be evidenced by an exchange of
telegraphic or other written communications (the "Terms Agreement") at the
time the Company determines to sell the Purchased 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
of Purchased Debt Securities and the number of Debt Warrants to be purchased
by each Underwriter, the purchase price to be paid by the Underwriters and the
terms of the Purchased Securities not already specified in the Indenture or
the Debt Warrant Agreement, as the case may be, including, but not limited to,
interest rate, maturity, any redemption provisions and any sinking fund
requirements, the exercise price of the Debt Warrants to be purchased, the
principal amount of Warrant Debt Securities issuable upon exercise of one such
Debt Warrant, the date after which such Debt Warrants are exercisable, the
expiration date thereof and the date, if any, such Debt Warrants are
detachable and whether any of the Purchased Debt Securities or Debt Warrants
may be sold to institutional investors pursuant to Delayed Delivery Contracts
(as defined below). 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 Representatives 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 Securities. The
obligations of the Underwriters to purchase the Purchased Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Purchased Securities for sale as set forth in the Prospectus. The
Purchased Securities delivered to the Underwriters on the Closing Date will be
in fully registered or bearer form with respect to any Debt Securities, and in
fully registered form with respect to Debt Warrants, in each case in such
denominations and numbers and registered in such names as the Underwriters may
request.
If the Terms Agreement provides for sales of Purchased Debt Securities or
Debt Warrants pursuant to delayed delivery contracts, the Company authorizes
the Underwriters to solicit offers to purchase Purchased Debt Securities or
Debt Warrants 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 Purchased Debt Securities and number of Debt Warrants 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 Securities to be purchased by the several Underwriters and the
aggregate principal amount of Purchased Debt Securities and number of Debt
Warrants, as the case may be, to be purchased by each Underwriter will be
reduced pro rata in proportion to the principal amount of Purchased Debt
Securities or number of Debt Warrants set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Representatives
determine that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Representatives not later than the
business day prior to the Closing Date of the Purchased Debt Securities and
Debt Warrants that are the Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for
the Underwriters, one signed copy of the registration
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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 Securities:
(a) The Company will advise the Representatives promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and
will afford the Representatives a reasonable opportunity to comment on any
such proposed amendment or supplement; and the Company will also advise the
Representatives 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 efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, 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 prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance.
(c) As soon as practicable, but not later than 18 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 most recent 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
(including, at the option of the Company, Rule 158 of the Rules and
Regulations under the Act).
(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement and all
amendments and supplements to such documents, in each case as soon as
available, and copies of the Prospectus and all amendments and supplements
to the Prospectus not later than 10:00 A.M., New York City time, on the day
following the date thereof. The Company will furnish each of such documents
in such quantities as are reasonably requested.
(e) The Company will arrange for the qualification of the Securities for
sale and the determination of their eligibility for investment under the
laws of such jurisdictions within the United States as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution; provided that the Company will not be
required to qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now
subject.
(f) 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 Annual Report on
Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K and
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 (the "Exchange Act") or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as the Representatives may reasonably request.
(g) The Company will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse the Underwriters for
any expenses (including fees and disbursements of counsel) incurred by them
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 Representatives
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may designate and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Securities, for
the filing fee of the National Association of Securities Dealers, Inc.
relating to the Registered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses and any
preliminary prospectus supplements to Underwriters.
(h) For a period beginning at the time of execution of the Terms
Agreement and ending on the Closing Date, if any Debt Securities are being
issued, without the prior consent of the Representatives, the Company will
not offer or contract to sell or, except pursuant to a commitment entered
into prior to the date of the Terms Agreement, sell or otherwise dispose of
any debt securities denominated in the currency or currency unit in which
the Securities are denominated and issued or guaranteed by the Company and
having a maturity of more than one year from the date of issue.
5. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Purchased 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,
or counsel for the Underwriters, shall have received a letter of Coopers &
Xxxxxxx L.L.P., confirming that they are independent certified public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and schedules of the
Company audited by them and included in the prospectus contained in the
registration statement relating to the Registered Securities, as
amended at the date of such letter, comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published Rules and Regulations;
(ii) on the basis of performing the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement on Auditing
Standards Xx. 00, Xxxxxxx Xxxxxxxxx Xxxxxxxxxxx ("XXX Xx. 00") on any
unaudited interim condensed consolidated financial statements of the
Company included in such prospectus, 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 interim condensed
consolidated financial statements, if any, of the Company included in
such prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act as it
applies to Quarterly Reports on Form 10-Q and the related published
Rules and Regulations or (B) that any material modifications should be
made for them to be in conformity with generally accepted accounting
principles;
(iii) on the basis of a reading of any unaudited pro forma condensed
combined financial statements of the Company included in such
prospectus, 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 the unaudited pro forma condensed combined financial statements
included in such prospectus do not comply in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and that the pro forma adjustments, if any, have not
been properly applied to the historical amounts in the compilation of
those statements; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in such prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
obtained from accounting records that are subject to the internal
control structure, policies and procedures of the Company's accounting
system or are derived directly from such accounting records by analysis
or computation) with the results obtained from procedures specified in
such letter and have found such dollar amounts,
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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 such prospectus shall be deemed included in such prospectus
for purposes of this subsection.
(b) 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.
(c) Subsequent to the execution of the Terms Agreement, there shall not
have occurred (i) any change in the capital stock or long-term debt of the
Company and its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which is, in the reasonable judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus;
(ii) any downgrading in the rating of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), and no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of such debt securities; (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 the New York
Stock Exchange or any suspension of trading of any securities of the
Company on any United States exchange or in the over-the-counter market;
(iv) any banking moratorium declared by Federal or New York authorities, or
the authorities of any country in whose currency any Purchased Debt
Securities or Debt Warrants are denominated under the applicable Terms
Agreement; (v) any outbreak or escalation of major hostilities in which the
United States or any country in whose currency any Purchased Debt
Securities or Debt Warrants are denominated under the applicable Terms
Agreement is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Securities; or (vi) any action by any governmental
authority or any change, or any development involving a prospective change,
involving currency exchange rates or exchange controls, which makes it
impracticable or inadvisable in the reasonable judgment of the
Representatives to proceed with the public offering or delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
(d) The Representatives shall have received an opinion, dated the Closing
Date, of Hunton & Xxxxxxxx, 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 Commonwealth of
Virginia, 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 it owns or leases substantial
properties or in which the conduct of its business requires such
qualification and in which the failure to so qualify would have a
material adverse effect on the Company;
(ii) Xxxxxx Xxxxxx Incorporated, Xxxxxx Xxxxxx International Inc. and
Kraft Foods, Inc. have been duly incorporated and are existing
corporations in good standing under the laws of their respective
jurisdictions of incorporation, with corporate power and authority to
own their respective properties and conduct their respective businesses
as described in the Prospectus; all outstanding shares of capital stock
of Xxxxxx Xxxxxx Incorporated, Xxxxxx Xxxxxx International Inc. and
Kraft Foods, Inc. are owned by the Company, free and clear of any lien,
pledge and encumbrance or claim of any third party;
(iii) the Indenture and any Debt Warrant Agreement have been duly
authorized, executed and delivered by the Company; the Indenture has
been duly qualified under the Trust Indenture Act; the Securities have
been duly authorized; the Purchased Securities other than any Contract
Securities have been duly executed, authenticated, issued and
delivered; the Indenture, any Debt Warrant Agreement and the Securities
other than any Warrant Debt Securities and any Contract Securities
constitute, and
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any Warrant Debt Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
any Debt Warrant Agreement, 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 in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, to general equity principles and any implied covenant
of good faith and fair dealing; and the Securities other than any
Warrant Debt Securities and any Contract Securities conform, and any
Warrant Debt Securities and any Contract Securities, when so issued and
delivered and sold, will conform, to the description thereof contained
in the Prospectus;
(iv) 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 Purchased 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;
(v) the execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement), any Debt
Warrant Agreement, and any Delayed Delivery Contracts and the issuance
and sale of the Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, the charter or by-
laws of the Company, Xxxxxx Xxxxxx Incorporated, Xxxxxx Xxxxxx
International Inc. or Kraft Foods, Inc., or, to the knowledge of such
counsel, the charter or by-laws of any other subsidiary of the Company,
any statute, any rule, regulation or order of any governmental agency
or body or any court having jurisdiction over the Company or any
subsidiary of the Company 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, and
the Company has full power and authority to authorize, issue and sell
the Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement);
(vi) the Registration Statement has become effective under the Act,
and, to the knowledge of such counsel, 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 pending or contemplated under the Act, and 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, 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, or any amendment or
supplement 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 in order to make the statements therein not
misleading or that the Prospectus or any amendment or supplement
thereto contains any untrue statement of a material fact or omits 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; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Registration Statement or the Prospectus or any such amendment or
supplement; and
(vii) the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
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In rendering such opinion, Hunton & Xxxxxxxx may state that (1) in clause
(iii) with respect to the validity and enforceability of the Indenture, any
Debt Warrant Agreement and the Securities, and in clause (iv) and in clause
(v) with respect to any statute, rule, regulation or order of any governmental
agency, body or court and the power and authority of the Company to authorize,
issue and sell the Securities, such counsel has assumed that under the laws of
any country in whose currency (or whose currency is a component currency of a
currency unit in which) any Securities are denominated or payable, if other
than in U.S. dollars, or of any other governmental authority having
jurisdiction over any such currency unit, that no consent, approval,
authorization, or order of, or filing with any governmental agency, body or
court is required for the consummation of the transactions contemplated
hereunder in connection with the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not result in any breach
or violation of any of the terms and provisions in any statute, rule,
regulation or order of any governmental agency or body or any court, and (2)
in clause (iii) with respect to the enforceability of the Indenture, no
opinion is expressed with respect to Section 516 thereof. Such counsel may
note that (a) a New York statute provides that with respect to a foreign
currency obligation a court of the State of New York shall render a judgment
or decree in such foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of exchange
prevailing on the date of entry of such judgment or decree and (b) with
respect to a foreign currency obligation a United States Federal court in New
York may award judgment in United States dollars, provided that such counsel
expresses no opinion as to the rate of exchange such court would apply.
(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 Securities, the Registration Statement, the Prospectus and
other related matters as they may require, 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. In rendering such opinion, Xxxxxxx
Xxxxxxx & Xxxxxxxx may rely as to the incorporation of the Company and all
other matters governed by Virginia law upon the opinion of Hunton &
Xxxxxxxx referred to above.
(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 this Agreement
are true and correct, 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 in the financial position or results of operation of the
Company and its subsidiaries except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated the Closing
Date, of Coopers & Xxxxxxx L.L.P., which reconfirms the matters set forth
in their letter delivered pursuant to subsection (a) of this Section and
states in effect that:
(i) in their opinion, any financial statements or schedules examined
by them and included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section comply in form in
all material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations;
(ii) on the basis of performing the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, on any
unaudited interim condensed consolidated financial statements of the
Company included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section, reading 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 interim condensed consolidated financial
statements of the Company, if any, included in the Prospectus do not
comply as to form in all material respects with the
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applicable accounting requirements of the Act and the related
published Rules and Regulations or require any material
modifications to be made for them to be in conformity with generally
accepted accounting principles;
(B) at the date of the latest available consolidated balance sheet
of the Company read by such accountants, and at a subsequent
specified date not more than three business days prior to the
Closing Date, there was any decrease in the outstanding common
stock, or consolidated earnings reinvested in the business of the
Company other than any decrease resulting from the declaration of
regular quarterly cash dividends, or any issuance or assumption of
long-term debt by the Company, Xxxxxx Xxxxxx Incorporated, Xxxxxx
Xxxxxx International Inc., Kraft Foods, Inc. or Xxxxxx Xxxxxx
Capital Corporation (exclusive of any short-term borrowings
reclassified as long-term based upon the Company's ability and
intention to refinance these short-term borrowings on a long-term
basis), and, at the date of the latest available consolidated
balance sheet of the Company read by such accountants, there was any
decrease in consolidated net current assets or net assets, all as
compared with amounts shown on or included in the latest balance
sheet of the Company included in the Prospectus; or
(C) for the period from the date of the latest consolidated
statement of earnings of the Company included in the Prospectus to
the date of the latest available consolidated statement of earnings
of the Company read by such accountants there were any decreases, as
compared with the corresponding period of the previous year, in
consolidated operating revenues, operating income, net earnings or
the historical ratio of earnings to fixed charges of the Company and
consolidated subsidiaries;
except in all cases set forth in clauses (B) and (C) above for
issuances or assumptions or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
(iii) with respect to the unaudited capsule information of the
Company, if any, included in the Prospectus:
(A) on the basis of performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71 on the unaudited interim
condensed consolidated financial statements of the Company from which
such unaudited capsule information was derived, reading such unaudited
capsule information, 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:
(1) the amounts contained in the unaudited capsule information
included in the Prospectus do not agree with the amounts set forth in
the unaudited interim condensed consolidated financial statements of
the Company from which such amounts were derived; and
(2) the amounts contained in the unaudited capsule information
included in the Prospectus were not determined on a basis substantially
consistent with that of the corresponding financial information in the
latest audited financial statements of the Company included in the
Prospectus; or
(B) if the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71 have not been performed on
the unaudited interim condensed consolidated financial statements of
the Company from which such unaudited capsule information was
derived, they have:
(1) read the unaudited capsule information and agreed the amounts
contained therein with the Company's accounting records from which it
was derived; and
(2) inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether the
unaudited capsule information was determined on a basis substantially
consistent with that of the corresponding financial information in the
latest audited financial statements of the Company included in the
Prospectus; and
8
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
included in the Prospectus and not covered by their letter delivered
pursuant to subsection (a) of this Section (in each case to the extent
that such dollar amounts, percentages and other financial information
are obtained from accounting records that are subject to the internal
control structure, policies and procedures of the Company's accounting
system or are derived directly from such accounting records by analysis
or computation) with the results obtained from 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 the purposes of this subsection.
(h) The Representatives shall have received, so long as financial
statements audited by any independent accountants for or with respect to
any entity acquired by the Company are included in the Prospectus, a
letter, dated the Closing Date, of such accountants confirming that as of a
specified date immediately prior to such acquisition and during the period
covered by the financial statements on which they reported, they were
independent accountants with respect to such entity within the meaning of
the Act and the applicable published Rules and Regulations thereunder and
stating in effect that:
(i) in their opinion, the consolidated financial statements audited
by them and included in the Prospectus comply in form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published Rules and Regulations, with
respect to Registration Statements on Form S-3; and
(ii) on the basis of performing the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, 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 the unaudited
financial statements of such entity at any date and for any period
ending on or prior to the date of the latest unaudited balance sheet of
such entity 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 for them to be in conformity with
generally accepted accounting principles.
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.
(i) The Representatives shall have received from counsel, satisfactory to
the Representatives, such opinion or opinions, dated the Closing Date, with
respect to compliance with the laws of any country, other than the United
States, in whose currency Purchased Debt Securities or Debt Warrants are
denominated, the validity of the Securities, the Prospectus and other
related matters as they may require, 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.
(j) If applicable to the offering of any Securities, the Representatives
shall have received an opinion from Xxxxxxxxxx, Xxxxxx & Xxxxxxx, L.L.P.,
special tax counsel for the Company, dated the Closing Date, confirming
their opinion as to United States tax matters set forth in the Prospectus.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon 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
9
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; and provided further that as to any
preliminary prospectus this indemnity agreement shall not inure to the benefit
of any Underwriter or any person controlling that Underwriter on account of
any loss, claim, damage or liability arising from the sale of Purchased
Securities to any person by that Underwriter if that Underwriter failed to
send or give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Act, and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such preliminary prospectus was
corrected in the Prospectus, unless such failure resulted from non-compliance
by the Company with Section 4(d). For purposes of the second proviso to the
immediately preceding sentence, the term Prospectus shall not be deemed to
include the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in a preliminary prospectus or the Prospectus to any
person other than a person to whom such Underwriter has delivered such
incorporated documents in response to a written request therefor.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
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.
(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. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding, or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be
a final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment.
10
(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 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 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 Purchased Securities under the Terms Agreement
and the aggregate amount of the Purchased Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the aggregate amount of the Purchased Securities, the Representatives may
make arrangements satisfactory to the Company for the purchase of such
Purchased 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 this Agreement and the Terms Agreement, to purchase the
Purchased Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
amount of the Purchased Securities with respect to which such default or
defaults occur exceeds 10% of the aggregate amount of the Purchased Securities
and arrangements satisfactory to the Representatives and the Company for the
purchase of such Purchased Securities by other persons are not made within 36
hours after such default, such 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. As used
in this Section only, the "aggregate amount" of Purchased Securities shall
mean the aggregate principal amount of any Purchased Debt Securities plus the
public offering price of any Debt Warrants included in the relevant offering
of Purchased Securities. 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 amount of Purchased Debt
11
Securities set forth opposite their names in the Terms Agreement as a result
of Delayed Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section will not
apply if the Terms Agreement specifies that such obligations and agreements
will not apply.
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 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 Purchased Securities. If the
obligations of the Underwriters with respect to any offering of Securities are
terminated pursuant to Section 7 or if for any reason the purchase of the
Purchased Securities by the Underwriters under a Terms Agreement 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 for any reason the purchase of the Purchased Securities by the Underwriters
is not consummated other than because of the termination of this Agreement
pursuant to Section 7 or a failure to satisfy the conditions set forth in
Section 5(c), the Company shall reimburse the Underwriters, severally, for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the 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 addresses 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 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: X. Xxxx Xxxxxxxxxx, Vice President, Associate General
Counsel and Corporate Secretary.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the Company and such Underwriters as are identified in Terms Agreements
and their respective successors and the officers and directors and controlling
persons referred to in Section 5, and no other person will have any right or
obligation hereunder.
11. 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.
12
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....*.)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
Xxxxxx Xxxxxx Companies Inc.
c/o [Insert name and address of lead Underwriter]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxx Xxxxxx Companies Inc.,
a Virginia 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 ("Delivery Date"),]
$........................................
principal amount of the Company's [Insert title of debt securities] ("Debt
Securities") and
........................................
of the Company's [Insert title of warrants] ("Debt Warrants") (collectively,
the "Securities"), offered by the Company's Prospectus dated , 19 and a
Prospectus Supplement dated , 19 relating thereto, receipt of copies of
which is hereby acknowledged, at % of the principal amount of the Debt
Securities 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, Debt Securities and Debt Warrants in
the principal amounts and number, respectively, set forth below:
PRINCIPAL AMOUNT NUMBER
OF DEBT OF DEBT
DELIVERY DATE SECURITIES WARRANTS
------------- ---------------- --------
........................ .... ....
........................ .... ....
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 New York Clearing House (next
day) funds 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 or numbers 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.
--------
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
13
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 to which the undersigned is subject and (2) the Company
shall have sold to the Underwriters the total principal amount of the Debt
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 of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of 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.
Xxxxxx Xxxxxx Companies Inc.
By ..................................
(Insert Title)
14
XXXXXX XXXXXX COMPANIES INC.
("COMPANY")
DEBT SECURITIES AND WARRANTS TO PURCHASE
DEBT SECURITIES
TERMS AGREEMENT
, 199
Xxxxxx Xxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:Xxxxx X. Xxxxxxxxx,
Senior Vice President and Chief Financial Officer
Dear Sirs:
On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we offer to purchase, on and subject to the terms
and conditions of the Underwriting Agreement relating to Debt Securities and
Warrants to Purchase Debt Securities dated as of December 1, 1997 ("Underwriting
Agreement"), the following securities ("Securities") on the following terms:
DEBT SECURITIES
Title:
Principal Amount: $
Interest Rate: % from , 199 , payable:
Maturity:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agents:
Optional Redemption:
Sinking Fund:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery Date:
Minimum Contract:
Maximum aggregate principal amount:
Fee: %
Purchase Price: %, plus accrued interest, or amortized original issue
discount, if any, from 19 .
Expected Reoffering Price:
DEBT WARRANTS
Number of Debt Warrants to be issued:
Debt Warrant Agreement:
Form of Debt Warrants: Registered
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued with each $ principal amount of Debt
Securities:]
[Detachable Date:]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire: .
Exercise price of Debt Warrants:
Expected Reoffering price: $
Purchase price: $
Title of Warrant Debt Securities:
Principal amount of Warrant Debt Securities purchaseable upon exercise of one
Debt Warrant:
Interest Rate: % from , 199 , payable:
Maturity:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agents:
Optional Redemption:
Sinking Fund:
----------------
Names and Addresses of Representatives:
The respective principal amounts of the Debt Securities and number of Debt
Warrants 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 Closing will take place at A.M., New York City time, on , 199 ,
at the offices of Xxxxxx Xxxxxx Companies Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx.
The Securities will be made available for checking and packaging at the
office of The Chase Manhattan Bank at least 24 hours prior to the Closing
Date.
Please signify your acceptance by signing the enclosed response to us in the
space provided and returning it to us.
Very truly yours,
SCHEDULE A
DEBT SECURITIES
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
DEBT WARRANTS
NUMBER OF DEBT
UNDERWRITER WARRANTS
----------- ------------------
