January __, 1997
BAXTER INTERNATIONAL INC.
Debt Securities
UNDERWRITING AGREEMENT
January __, 1997
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
Dear Sirs:
The underwriter or underwriters named in Schedule I hereto (the
"Underwriters"), acting through the firm or firms named in Schedule I-A hereto
as representatives (the "Representatives"), understand that Baxter International
Inc., a Delaware corporation (the "Company"), proposes to issue and sell
$250,000,000 aggregate principal amount of the Company's ___% Notes due 2007
(the "Notes") and $200,000,000 aggregate principal amount of the Company's ___%
Debentures due 2027 (the "Debentures"), each designated in Schedule II hereto
(the Notes and Debentures together, the "Offered Securities"), registered on
Registration Statement No. 333-19025 under the Securities Act of 1933, as
amended. The Offered Securities are to be issued under the indenture designated
in Schedule II hereto (the "Indenture"), between the Company and the trustee
designated in such Schedule II. Subject to the terms and conditions set forth
herein or incorporated by reference herein and referred to below, the Company
hereby agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, the principal
amount of such Offered Securities set forth opposite the name of such
Underwriter in such Schedule I at the Purchase Price to Underwriters set forth
in Schedule II hereto. If the firm or firms named in Schedule I-A hereto
include only the firm or firms named as Underwriters in Schedule I hereto, the
terms "Underwriters" and "Representatives" shall each be deemed to refer to such
firm or firms.
The Underwriters will pay for such Offered Securities upon delivery
thereof at the Closing Location and Closing Time set forth in Schedule II
hereto.
The Offered Securities shall have the terms set forth in Schedule II
hereto.
This Underwriting Agreement consists of the special provisions set
forth herein or in the schedules hereto (the "Special Provisions") and such of
the provisions contained in the document entitled Baxter International Inc.
Underwriting Agreement 1997 Standard Provisions (the "Standard Provisions") as
are herein incorporated by reference. A copy of the Standard Provisions was or
will be filed as an exhibit to or incorporated by reference into the
Registration Statement. Unless otherwise provided in Schedule II hereto, the
Standard Provisions are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Underwriting Agreement to the same extent
as if such provisions had been set forth in full herein. References herein and
therein to numbered sections of this Underwriting Agreement shall mean the
numbered sections of the Standard Provisions.
Please confirm your agreement by (a) having an authorized officer sign
a copy of this Underwriting Agreement in the space set forth below,
(b) returning the signed copy to us and (c) in addition, having an authorized
officer send us no later than 8:00 P.M., Chicago time, on the date hereof, by
wire, telex, facsimile transmission or other written means, the following
message:
"We have entered into the Underwriting Agreement dated January __,
1997 relating to the Offered Securities referred to therein by signing a copy of
the Underwriting Agreement and returning the same or depositing the same in the
mail to you."
Very truly yours,
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
BANCAMERICA SECURITIES, INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
By: GOLDMAN, SACHS & CO.
_____________________________________
For itself and as Representative of
the other Underwriters named above
ACCEPTED:
BAXTER INTERNATIONAL INC.
By:________________________________
Senior Vice President and
Chief Financial Officer
SCHEDULE I
PRINCIPAL AMOUNT OF
OFFERED SECURITIES
UNDERWRITER TO BE PURCHASED
- ------------ -------------------
Goldman, Sachs & Co.
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
BancAmerica Securities, Inc.
First Chicago Capital Markets, Inc.
Total ..................................... $
----------------
----------------
I-1
SCHEDULE I-A
REPRESENTATIVE(S)
Goldman, Sachs & Co.
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
BancAmerica Securities, Inc.
First Chicago Capital Markets, Inc.
SCHEDULE II
Indenture: Amended and Restated Indenture dated as of November 15, 1985, as
supplemented, between Baxter International Inc. and the Trustee
named below
Trustee: First Trust National Association(successor to Continental Illinois
National Bank and Trust Company of Chicago)
Title of Offered Securities: Tranche 1: [__% Notes due 2007]
Tranche 2: [__% Debentures due 2027]
Aggregate Principal Amount: Tranche 1: $250,000,000
Tranche 2: $200,000,000
Initial Offering Price to Public: Tranche 1: [______]% of the principal amount
of the Notes, plus accrued interest, if any,
from January __, 1997
Tranche 2: [__]% of the principal amount of
the Debentures, plus accrued interest, if
any, from January __, 1997
Purchase Price to Underwriters: Tranche 1: [______]% of the principal amount
of the Notes, plus accrued interest, if any,
from January __, 1997
Tranche 2: [__]% of the principal amount of
the Debentures, plus accrued interest, if
any, from January __, 1997
Maturity: Tranche 1: [__________, 2007]
Tranche 2: [__________, 2027]
Interest Rate: Tranche 1: [__]% per annum
Tranche 2: [__]% per annum
Interest Payment Dates: __________ and __________, commencing __________, 1997
II-1
Redemption Provisions: The Offered Securities are subject to redemption at the
option of the Company prior to maturity as described in
the Prospectus
Sinking Fund Provisions: The Offered Securities will not be entitled to the
benefit of any sinking fund
Closing Time: February __, 1997 at 9:00 A.M., Chicago time
Closing Location: Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Funds for Payment of Purchase Price: Immediately available funds
Name and Address for Goldman, Sachs & Co.
purposes of Section 11: 85 Broad Street
New York, NY 10004
Other Terms or Conditions: N/A
II-2
BAXTER INTERNATIONAL INC.
Debt Securities
UNDERWRITING AGREEMENT
1997 STANDARD PROVISIONS
(Incorporated By Reference)
From time to time Baxter International Inc., a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated debt securities to the several underwriters named
therein. The standard provisions set forth herein (the "Standard Provisions")
may be incorporated by reference in any such underwriting agreement. Such
underwriting agreement, which shall consist of the special provisions (the
"Special Provisions") set forth in the part of the Underwriting Agreement to be
executed by the parties thereto (and accompanying schedules) and the Standard
Provisions incorporated therein by reference, is herein called the "Underwriting
Agreement" or this "Agreement." Unless otherwise provided, terms defined in the
Special Provisions are used in the Standard Provisions as so defined. The
Underwriting Agreement shall be in the form of an executed writing (which may be
in counterparts) and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. As used herein, the term
"Execution Date" shall mean the date set forth on the first page of the Special
Provisions.
The Company proposes to issue and sell up to $700,000,000 aggregate
principal amount of its senior, unsecured debt securities (the "Securities") in
one or more offerings on terms determined at or about the time of sale. The
Securities to be sold pursuant to the Underwriting Agreement (the "Offered
Securities") will be issued under an amended and restated indenture dated as of
November 15, 1985, as further supplemented (the "Indenture"), between the
Company and First Trust National Association (formerly Continental
Illinois National Bank and Trust Company of Chicago) (the "Trustee"). Each
issue of Securities may vary as to specific designation, aggregate principal
amount, maturity date, currency of payment, interest rate or rates and timing of
payments thereof, redemption provisions and sinking fund requirements, if any,
and any other variable terms which the Indenture contemplates may be set forth
in the Securities as issued from time to time.
1. The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-19025),
including a prospectus relating to the Securities, which relate to the
offering from time to time in accordance with Rule 415 under the Securities
Act of 1933 (the "1933 Act") of up to $700,000,000 aggregate principal
amount of Securities, and has filed amendments thereto as may have been
required to the Execution Date. Such registration statement, as amended,
has been declared effective by the Commission, and the Indenture has been
qualified under the Trust Indenture Act of 1939 (the "1939 Act"). The term
"Registration Statement" means such registration statement, including all
exhibits
thereto but excluding Form T-1 (as herein described), as amended to the
Execution Date. The term "Basic Prospectus" means the prospectus included
in such registration statement, as amended to the Execution Date. The term
"Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Offered Securities, in the
definitive form filed or to be filed pursuant to Rule 424 under the 1933
Act; and the term "Preliminary Prospectus" means the Basic Prospectus
together with a preliminary prospectus supplement specifically relating to
the Offered Securities. Any reference herein to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents or portions thereof incorporated by reference therein
pursuant to the applicable form under the 1933 Act; and any reference to
any amendment or supplement to the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents or portions thereof filed after the Execution Date under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and so
incorporated by reference. Notwithstanding the foregoing, any statement
contained in a document incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus which is
modified by a statement contained in the Prospectus or in any other
subsequently filed document which is or is deemed to be incorporated by
reference in the Prospectus shall be deemed to constitute part of the
Registration Statement and the Prospectus only as so modified, and any
statement contained in a document incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus which is
superseded or replaced by a statement contained in the Prospectus or in any
other subsequently filed document which is or is deemed to be incorporated
by reference in the Prospectus shall be deemed not to constitute a part of
the Registration Statement and the Prospectus. The term "Underwriters'
Securities" means the Offered Securities to be purchased by the
Underwriters hereunder. The term "Contract Securities" means the Offered
Securities, if any, to be purchased pursuant to the Delayed Delivery
Contracts referred to herein.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to each of the Underwriters as follows:
(a) At the time the Prospectus is filed or mailed for filing with the
Commission pursuant to Section 3(a), and at the time any further amendments and
supplements to the Prospectus become effective or are filed or mailed for filing
with the Commission, as the case may be, during the time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the Offered
Securities, (i) the Registration Statement and the Prospectus will comply in all
material respects with the applicable requirements of the 1933 Act, the rules
and regulations thereunder (the "Regulations"), the 1934 Act and the 1939 Act,
(ii) the Registration Statement will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) the
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact necessary
- 2-
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing by
any Underwriter expressly for use in the Registration Statement or Prospectus or
to information which shall constitute the Statement of Eligibility and
Qualification under the 1939 Act (Form T-1) of the Trustee under the Indenture.
(b) The accountants who certified the financial statements and
schedules included in the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and its subsidiaries
as required by the 1933 Act and the Regulations.
(c) The financial statements included in the Registration Statement
and the Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of their
operations for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved, except as indicated therein; and
the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (i) there has not been any material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings or the ability to
continue to conduct business in the usual and ordinary course of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business and (ii) there has not been any material transaction
entered into by the Company or any of its subsidiaries other than transactions
in the ordinary course of business or transactions which are not material in
relation to the Company and its subsidiaries considered as one enterprise.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement; and the Company
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would
materially adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as one
enterprise.
(f) Each active consolidated subsidiary of the Company included in
the financial statements included in the Registration Statement and the
Prospectus is a corporation duly organized and existing and in good standing
- 3-
under the laws of the jurisdiction of its incorporation, with corporate power
and authority to own, lease and operate its properties and conduct its business
as now being conducted and is duly qualified as a foreign corporation to
transact business and is in good standing except as to subsidiaries or
jurisdictions as to which the failure so to qualify would not materially
adversely affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one enterprise; all of
the issued and outstanding capital stock of each such subsidiary has been duly
and validly issued and is fully paid and nonassessable; and all of such stock
owned by the Company, directly or through subsidiaries, is owned free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity.
(g) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any contract, indenture, mortgage,
loan agreement or lease to which it or any of them is a party or by which it or
any of them or their properties is bound; and the execution and delivery of this
Agreement and the Delayed Delivery Contracts and the Indenture, the incurrence
of the obligations set forth herein and therein and the consummation of the
transactions contemplated herein and therein have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, the charter or by-laws of the Company or any bond, debenture,
note or other evidence of indebtedness or any contract, indenture, mortgage,
loan agreement or lease to which the Company or any of its subsidiaries is a
party or by which it or any of them is bound or any law, administrative
regulation or administrative or court decree.
(h) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, adequate patent rights or licenses or other rights to use
patent rights, inventions, trademarks, service marks, trade names and copyrights
necessary to conduct the business now operated by them, provided that the loss
of any such rights, either alone or in the aggregate, which does not materially
adversely affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one enterprise shall
not be considered a violation of this representation. Neither the Company nor
any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any patent, patent rights,
inventions, trade marks, service marks, trade names or copyrights which, either
alone or in the aggregate, might reasonably be expected to materially adversely
affect the conduct of the business, operations, financial condition or income of
the Company and its subsidiaries considered as one enterprise.
(i) Except as set forth in the Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries, which, either singly or in the
aggregate, might reasonably be expected to materially adversely affect the
conduct of the business, operations, financial condition
- 4 -
or income of the Company and its subsidiaries considered as one enterprise or
the consummation of this Agreement.
Any certificate signed by any officer of the Company and delivered to
any Underwriter or counsel for the Underwriters in connection with an offering
of Offered Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter.
SECTION 2. PURCHASE, SALE AND DELIVERY. The Company is advised by
the Representatives that the Underwriters propose to make a public offering of
their respective portions of the Underwriters' Securities as soon after this
Agreement is entered into as in the Representatives' judgment is advisable. The
terms of the public offering of the Underwriters' Securities are set forth in
the Prospectus.
Payment of the purchase price for, and delivery of, the Underwriters'
Securities shall be made in the funds, at the place or places, on the date and
at the time (unless postponed in accordance with the provisions of Section 10)
specified in Schedule II to the Special Provisions or at such other time or
place as shall be agreed upon by the Representatives and the Company (such time
and date being referred to as the "Closing Time"). Except as otherwise
specified in Schedule II to the Special Provisions, payment shall be made to the
Company by certified or official bank check or checks payable to the order of
the Company against delivery to the Representatives for the respective accounts
of the Underwriters of the Underwriters' Securities to be purchased by them.
Such Underwriters' Securities shall be in such denominations and registered in
such names as the Representatives may request in writing at least two business
days prior to the Closing Time. Such Underwriters' Securities, which may be in
temporary form, will be made available for examination and packaging by the
Representatives in New York City or at such other place as shall be agreed upon
by the Representatives and the Company on or before the first business day prior
to the Closing Time.
If so provided in Schedule II to the Special Provisions, the
Underwriters may solicit offers to purchase Contract Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Annex I hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to the Representatives at Closing Time, for the accounts of
the Underwriters, the fee set forth in Schedule II to the Special Provisions in
respect of the principal amount of Contract Securities. Any Delayed Delivery
Contracts are to be with institutional investors of the types set forth in the
Prospectus. At Closing Time, the Company will enter into Delayed Delivery
Contracts (each for not less than the minimum principal amount of Contract
Securities per Delayed Delivery Contract specified in Schedule II to the Special
Provisions) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Contract Securities in excess of that specified in Schedule II to the
Special Provisions. The Underwriters will not
- 5 -
have any responsibility for the validity or performance of Delayed Delivery
Contracts.
The Representatives will submit to the Company, at least three
business days prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the principal amount of Contract Securities to be
purchased by each of them, and the Company will advise the Representatives at
least two business days prior to Closing Time of the names of the institutions
with which the making of Delayed Delivery Contracts is approved by the Company
and the principal amount of Contract Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Offered Securities agreed to be purchased by
the respective Underwriters as set forth in Schedule I to the Special Provisions
shall be reduced by the principal amount of Offered Securities covered by
Delayed Delivery Contracts, as to each Underwriter as set forth in a written
notice delivered by the Representatives to the Company; PROVIDED, HOWEVER, that
the total principal amount of Offered Securities to be purchased by all
Underwriters shall be the total amount of Offered Securities set forth in
Schedule I to the Special Provisions, less the principal amount of Offered
Securities covered by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter that:
(a) Immediately following the execution of this Agreement, the
Company will prepare a supplement to the Basic Prospectus setting forth the
principal amount of the Offered Securities and their terms not otherwise
specified in the Indenture, the names of the Underwriters and the principal
amount of Offered Securities which each severally has agreed to purchase, the
names of the Representatives, the price at which the Offered Securities are to
be purchased by the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representatives and the Company
deem appropriate in connection with the offering of the Offered Securities. The
Company will promptly transmit copies of the Prospectus to the Commission for
filing pursuant to Rule 424 of the Regulations and will furnish to the
Underwriters as many copies of the Prospectus as the Representatives shall
reasonably request.
(b) If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it shall be necessary,
in the opinion of either such counsel, at any such time to amend or supplement
the Registration Statement or the Prospectus in order to
- 6 -
comply with the requirements of the 1933 Act or the Regulations, the Company
will promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements.
(c) The Company will make generally available to its security holders
as soon as practicable an earnings statement (in form complying with the
provisions of Section 11(a) of the 1933 Act, which need not be certified by
independent certified public accountants unless required by the 1933 Act or the
Regulations) covering a twelve-month period beginning not later than the first
day of the Company's fiscal quarter next following the Execution Date.
(d) During the period when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the Company
will give the Representatives notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of filing, and will
not file any such amendment or supplement or other documents in a form in which
the Representatives or counsel for the Underwriters shall reasonably object.
(e) During the period when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Offered Securities, the Company
will notify the Representatives immediately, and confirm the notice in writing,
(i) of the effectiveness of any amendment to the Registration Statement, (ii) of
the mailing or the delivery to the Commission for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which is
incorporated in the Prospectus by reference, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement or the
Prospectus, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has previously delivered to Sidley & Austin, counsel
for the Underwriters, signed and conformed copies of the Registration Statement
and of each amendment thereto filed prior to the date of this Agreement
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) and will also deliver to
Sidley & Austin a copy of each amendment to the Registration Statement filed
after the date of this Agreement.
(g) The Company will endeavor, in cooperation with the
Representatives, to qualify the Offered Securities for offering and sale under
- 7 -
the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate, and, in cooperation with the
Representatives, will maintain such qualifications in effect for as long as may
be required for the distribution of the Offered Securities; PROVIDED, HOWEVER,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not otherwise required to be so qualified. The Company will, upon notice,
file such statements and reports as may be required by the laws of each
jurisdiction in which the Offered Securities have been qualified as above
provided.
(h) The Company, during the period when a prospectus is required to
be delivered under the 1933 Act in connection with the sale of the Offered
Securities, will file promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Between the Execution Date and termination of any price
restrictions on the sale of the Offered Securities or Closing Time, whichever is
later, the Company will not, without the prior consent of the Representatives,
offer or sell, or enter into any agreement to sell, any debt securities of the
Company with a maturity of more than one year, other than such debt securities
which the Company has advised the Representatives in writing prior to the
Execution Date that it intends to sell or agree to sell during such period.
SECTION 4. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase the Underwriters' Securities are subject to the
accuracy of the representations and warranties on the part of the Company herein
contained, to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
by the Company of all of its covenants and other obligations hereunder and to
the following further conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
(ii) the rating assigned by Standard & Poor's Corporation, Moody's Investors
Service, Inc. or Duff and Phelps, Inc. to any debt securities or preferred stock
of the Company as of the Execution Date shall not have been lowered since that
date and (iii) there shall not have come to the attention of the Representatives
any facts that would reasonably cause the Representatives to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of the
Offered Securities, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at such time, not misleading.
(b) At the Closing Time the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time, of
Arthur F. Staubitz, Esq., Senior Vice President and General
- 8 -
Counsel of the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(B) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement.
(C) The Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction
in which the failure so to qualify would materially adversely
affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries
considered as one enterprise.
(D) Each of Baxter Healthcare Corporation, a Delaware
corporation, and Baxter World Trade Corporation, a Delaware
corporation, all of which are wholly-owned by the Company and
which, together with the Company, owned more than 80% of the
consolidated assets of the Company and its subsidiaries as of
December 31, 1996 and contributed at least 80% of the
consolidated income from continuing operations of the Company and
its subsidiaries for the year ended December 31, 1996 (each such
calculation with respect to Baxter World Trade Corporation having
been done on a consolidated basis with its subsidiaries) has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease
and operate its properties and conduct its business as now being
conducted and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which the failure so to qualify would materially adversely affect
the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of
each such subsidiary has been duly authorized and validly issued
and is fully paid and non-assessable; and all of such stock owned
by the Company, directly or through subsidiaries, is owned free
and clear of any mortgage, pledge, lien, encumbrance, claim or
equity.
(E) Except as set forth in the Prospectus, there is no
action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or to such
counsel's knowledge threatened against or affecting, the Company
or any of its subsidiaries which, either singly or in the
aggregate, might reasonably be
- 9 -
expected to materially adversely affect the conduct of the business,
operations, financial condition or income of the Company and its
subsidiaries considered as one enterprise or the consummation of this
Agreement.
(F) This Agreement and the Delayed Delivery Contracts, if
any, have been duly authorized, executed and delivered by the
Company.
(G) The Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the valid
and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles.
(H) The Offered Securities are in the form contemplated by
the Indenture, have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated
as specified in the Indenture and delivered against payment
pursuant to this Agreement or Delayed Delivery Contracts, if any,
will be valid and binding obligations of the Company, enforceable
in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity
principles, and will be entitled to the benefits of the
Indenture.
(I) The descriptions of the Indenture and the Offered
Securities set forth in the Prospectus are accurate and
constitute fair summaries of such documents and instruments.
(J) The Indenture is qualified under the 1939 Act.
(K) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(L) The Registration Statement (other than the financial
statements and other financial data included therein, as to which such
counsel need not express any opinion and other than the documents
incorporated therein by reference) complies as to form in all material
respects with the requirements of the 1933 Act, the 1939 Act and the
Regulations, and although such counsel is not passing upon, and does
not assume responsibility for the accuracy, completeness or fairness
of statements contained in the
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Registration Statement or Prospectus nor make any representation that
he has independently verified the accuracy, completeness or fairness
of such statements (except as set forth in clause (ix) above) nor
verified the computation or compilation of financial statements and
other financial data, nothing has come to such counsel's attention
that would lead him to believe that the Registration Statement
(including the documents incorporated therein by reference), at the
time it became effective, or if an amendment to the Registration
Statement, an annual report on Form 10-K or any other document filed
by the Company under the 1934 Act and incorporated by reference in the
Registration Statement has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (including the documents
incorporated therein by reference), as amended or supplemented at
Closing Time, contains an untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(M) Each document, if any, filed pursuant to the 1934 Act
(other than the financial statements and other financial data
included therein, as to which such counsel need not express any
opinion) and incorporated by reference in the Prospectus complied
when so filed as to form in all material respects with the 1934
Act and the rules and regulations thereunder.
(N) No consent, approval, authorization or order of any
court or governmental authority or agency is required in
connection with the sale of the Offered Securities, except such
as may be required under the 1933 Act, the 1939 Act and state
securities laws; and the execution and delivery of this Agreement
and the Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with or
constitute a breach of, or default under, or result in any
violation of the provisions of, the charter or by-laws of the
Company or, to the best of such counsel's knowledge, any bond,
debenture, note or other evidence of indebtedness, or any
contract, indenture, mortgage, loan agreement or lease to which
the Company or any of its subsidiaries is a party or by which it
or any of them is bound, nor will such action result in any
violation of the provisions of any law, administrative regulation
or administrative or court decree.
(ii) The favorable opinion or opinions, dated as of the
applicable Closing Time, of Sidley & Austin, counsel for the
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Underwriters, with respect to the matters set forth in (A) and (F) to (M),
inclusive, of subsection (b)(i) of this Section.
(c) At the Closing Time there shall not have been, since the
Execution Date or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one enterprise, or
in the earnings or the ability to continue to conduct business in the usual and
ordinary course of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company, dated as of the Closing Time, to the effect that there
has been no such material adverse change and to the effect that the
representations and warranties of the Company contained in Section 1 are true
and correct with the same force and effect as though expressly made at the
Closing Time.
(d) The Representatives shall have received from Price Waterhouse a
letter, dated as of the Closing Time, covering periods up to a date not more
than five business days preceding the date of the letter, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the 1933 Act and the applicable published
rules and regulations thereunder and stating in effect (i) that in their opinion
the consolidated financial statements of the Company and its subsidiaries
examined by them included or incorporated by reference in the Registration
Statement and the Prospectus comply as to form in all material respects with the
accounting requirements of the 1934 Act and the published rules and regulations
thereunder applicable to financial statements included or incorporated in annual
reports on Form 10-K under the 1934 Act; (ii) that, based on limited procedures
not constituting an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited consolidated financial data
of the Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, reading of the minutes of the board
of directors and committees of the board of directors of the Company since
December 31, 1991, as set forth in the minute books through a specified date not
more than five days before the date of such letter and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters, nothing came to their attention that caused them to believe: (A) that
such unaudited consolidated financial data do not comply as to form in all
material respects with the accounting requirements of the 1934 Act and the
published rules and regulations thereunder applicable to unaudited consolidated
financial data or that such unaudited consolidated financial data are not
presented on a basis substantially consistent with that of the consolidated
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus and
covered by their opinion; and (B) that during the period from the date of the
most recent consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus to a specified date not more than five business days prior to
the date of such letter there was any change in the consolidated capital stock
(other than
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changes occurring as a result of the exercise of outstanding stock options,
conversion rights or rights under employee stock purchase plans, grants under
any other employee benefit plans, or conversions of preferred stock or
debentures or in connection with any dividend reinvestment plan of the Company)
or consolidated capitalized lease obligations or consolidated long-term debt
(other than through conversions or scheduled payments or differences due to
conversion of foreign currency-denominated debt into United States dollars) of
the Company or any decreases in consolidated stockholders' equity of the Company
as compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus, or any decrease, as compared with the corresponding period in the
preceding year, in net sales or total operating income, in each case from
continuing operations, and net income of the Company and its subsidiaries on a
consolidated basis, or, at the date of the latest available balance sheet read
by them, any decreases in consolidated net current assets (working capital) as
compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus, except in all instances for changes, increases or decreases
(1) which have been the subject of prior registration statements filed with the
Securities and Exchange Commission, (2) which have been disclosed in writing to
either the Representatives or to Sidley & Austin, counsel for the Underwriters,
prior to the Execution Date or (3) which the Registration Statement and the
Prospectus (including the documents incorporated therein by reference) disclose
have occurred or may occur; and (iii) that certain amounts, percentages and
financial information included or incorporated by reference in the Registration
Statement and the Prospectus which have been specified by the Representatives
and have been obtained or derived from the general accounting records of the
Company and its subsidiaries are in agreement with such accounting records or
computations made therefrom, or in the case of amounts, percentages and
financial information pertaining to periods prior to the year ended December 31,
1985 are in agreement with the audited financial statements or computations made
therefrom with respect to such periods. Such letter shall also cover such other
matters as the Representatives may reasonably request.
(e) Such other closing conditions, if any, as are set forth in the
Special Provisions.
(f) At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Securities as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
If any condition specified in this Agreement shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or
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prior to the Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 5.
SECTION 5. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(a) the printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and all amendments thereto, and the typing and
duplicating or printing of this Agreement and any agreement among the
Underwriters, (b) the preparation, issuance and delivery of the Offered
Securities to the Underwriters, (c) the fees and disbursements of the Company's
counsel and accountants, (d) the qualification of the Offered Securities under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the reasonable fee and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and Legal Investment Survey, (e) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto, and of any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto, (f) the
printing and delivery to the Underwriters of copies of the Indenture and any
Blue Sky Survey and Legal Investment Survey, (g) the fees of rating agencies and
(h) the fees and expenses, if any, incurred in connection with the listing of
the Offered Securities on the New York Stock Exchange.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 4 or Section 9(i), the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, (A) that the Company will not be
liable in any such case to the extent that any such loss, liability,
claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration
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Statement (or any amendment thereto) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto), or contained in that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the Trustee
under the Indenture; and PROVIDED, FURTHER, (B) that the foregoing
indemnification, to the extent it relates to any actual or alleged untrue
statement or omission made in or from any Preliminary Prospectus but
eliminated or remedied in the Prospectus, shall not inure to the benefit of
any Underwriter or any person who controls such Underwriter from whom the
person asserting such untrue statement or omission purchased Offered
Securities if a copy of the Prospectus (excluding documents incorporated
therein by reference) was not sent or given to such person at or prior to
the written confirmation of the sale of such Offered Securities to such
person if the Company has previously furnished copies thereof to such
Underwriter;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
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(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder; failure of an indemnified party to give such
notice within a reasonable time after the commencement of such action shall
relieve the indemnifying party of all liability on account of this indemnity
agreement, but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of such Underwriters in such proportions
as will reflect the relative benefits from the offering of the Offered
Securities received by the Company on the one hand and by such Underwriters on
the other hand. If the allocation provided by the immediately preceding
sentence is not permitted by applicable law, or if the indemnified party failed
to give the notice required under Section 6(c), then the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of such Underwriters in such proportions
as are appropriate to reflect not only such relative benefits 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,
liabilities, claims, damages and expenses, as well as any other relevant
equitable considerations. The relative benefits shall be deemed to be such that
the Underwriters shall be responsible for that portion of the aggregate losses,
liabilities, claims, damages and expenses represented by the percentage that the
underwriting discount appearing in the Prospectus bears to the initial public
offering price appearing therein and the Company shall be responsible for the
balance. 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
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 7. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at
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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 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company. The Underwriters' obligations in this Section 7 to contribute are
several in proportion to their respective underwriting obligations and not
joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Offered Securities to the Underwriters.
SECTION 9. TERMINATION. The Representatives may also terminate this
Agreement, immediately upon notice to the Company, at any time at or prior to
the Closing Time (a) if there has been, since the Execution Date or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise, or in the earnings or the
ability to conduct business in the usual and ordinary course of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (b) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (c) if trading generally on
the New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by said exchange or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by Federal,
Illinois or New York authorities. In the event of any such termination, the
covenant set forth in Section 3(c), the provisions of Section 5, the indemnity
agreement set forth in Section 6, the contribution provisions set forth in
Section 7 and the provisions of Sections 8 and 13 shall remain in effect.
SECTION 10. DEFAULT. If one or more of the Underwriters shall fail
at the Closing Time to purchase the Offered Securities which it or they are
obligated to purchase hereunder (the "Defaulted Securities"), then the
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Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, during such 24 hours the Representatives shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
(a) If the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Offered Securities to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters, or
(b) If the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Offered Securities to be purchased
pursuant to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period of not exceeding seven days in
order that any required change in the Registration Statement or Prospectus or in
any other documents or arrangements may be effected.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at the address or
addresses specified in Schedule II to the Special Provisions; notices to the
Company shall be directed to it at One Baxter Parkway, Deerfield, Illinois
60015, Attention: Secretary.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
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No purchaser of Offered Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 13. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Illinois applicable to agreements made and to be performed
therein.
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