EXHIBIT 99.3
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R. R. DONNELLEY & SONS COMPANY
Debt Securities
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UNDERWRITING AGREEMENT
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Dated November _, 2001
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R. R. DONNELLEY & SONS COMPANY
UNDERWRITING AGREEMENT
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November __, 2001
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Banc One Capital Markets, Inc.
First Union Securities, Inc.
The Williams Capital Group, L.P.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
From time to time R. R. Donnelley & Sons Company, a Delaware
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
underwriters named in Schedule I to the applicable Pricing Agreement (with
respect to each such Pricing Agreement, the "Underwriters") certain of the
Company's debt securities (the "Securities") specified in Schedule II to such
Pricing Agreement (with respect to each such Pricing Agreement, the "Designated
Securities"), less the principal amount of Designated Securities covered by
Delayed Delivery Contracts, if any, as provided in Section 3 hereof and as may
be specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, any Designated Securities to be covered by Delayed Delivery
Contracts being herein sometimes referred to as "Contract Securities" and the
Designated Securities to be purchased by the Underwriters (after giving effect
to the deduction, if any, for Contract Securities) being herein sometimes
referred to as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture, as it may be supplemented from time to time
(the "Indenture"), identified in such Pricing Agreement.
1. Introduction. Particular sales of Designated Securities may be made
from time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to purchase any of
the Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, the principal amount of such Designated Securities to be purchased
by each Underwriter, whether any of such Designated Securities shall be covered
by Delayed Delivery Contracts (as defined in Section 3 hereof) and the
commission payable to the Underwriters with respect thereto and shall set forth
the date, time and manner of delivery of such Designated Securities and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus (or prospectus
supplement, as applicable) with respect thereto) the terms of such Designated
Securities. A Pricing 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. Each Pricing Agreement
shall be deemed to be an agreement by the Company and the Underwriters to be
bound by the terms of this Agreement. The obligations of the Underwriters under
this Agreement and each Pricing Agreement shall be several and not joint.
2. Representations and Warranties. The Company represents and warrants
to, and agrees with, each of the Underwriters that:
(a) The Company meets all of the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 33-57807) in
the form heretofore delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus included therein, to the
Representatives for each of the other Underwriters and such registration
statement in such form has been declared effective by the Commission and no
stop order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement being hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1, each as amended at the time such part
became effective, being hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission, on or prior to the date of this Agreement (excluding any
preliminary prospectus supplement), being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), but prior to or as of the date of such amendment or
supplement, and incorporated by reference; any reference to the
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Registration Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to exclude any statement deemed not to be incorporated by
reference therein under Rule 412 of the Act; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities (excluding any preliminary prospectus supplement) in
the form in which it is first filed, or transmitted for filing, with the
Commission pursuant to Rule 424 under the Act, including any documents
incorporated by reference therein as of the date of such filing or
transmission);
(b) The documents incorporated by reference in the Prospectus, at the
time they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained, in the case of
a registration statement which became effective under the Act, 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, and, in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue statement of a
material fact or omitted 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, in each case after excluding any statement
in any such document which does not constitute part of the Registration
Statement or the Prospectus pursuant to Rule 412 under the Act, and any
further documents so filed and incorporated by reference in the Prospectus,
when they become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain, in the case of a
registration statement which becomes effective under the Act, an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and, in the case of other documents which are filed under the
Act or the Exchange Act, an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company
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by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Designated Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with
its business which is material to the Company and its subsidiaries
considered as one enterprise from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock (other than issuances of
common stock pursuant to existing employee benefit or stock option plans,
repurchases by the Company of its common stock in the ordinary course of
business or conversions of outstanding convertible securities) or long-term
debt (other than changes as a result of maturities, sinking fund payments,
amortization of debt discount or currency fluctuations) of the Company or
any of its subsidiaries or any material adverse change, or any development
which will result in a material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as one
enterprise, otherwise than as set forth or contemplated in the Prospectus;
(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 under such laws to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction where the
character of the business conducted by it or the location of the property
owned by it makes such qualification necessary, except where the failure to
be so qualified would not have a material adverse effect on the Company and
its subsidiaries considered as one enterprise. Each subsidiary of the
Company that is a significant subsidiary within the meaning of Rule 1-02 of
Regulation S-X under the Act and such other subsidiaries of the Company
designated in the list previously furnished to the Representatives by an
officer of the Company for the purposes of this Agreement (collectively,
the "Subsidiaries") is a corporation duly incorporated and validly existing
in good standing under the laws of the state or jurisdiction of its
incorporation or formation, and each has corporate power and authority
under such laws to own, lease and operate its properties and to conduct its
business, and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction where the character
of the business conducted by it or the location of the property owned by it
makes such qualification necessary, except where the failure to be so
qualified would not have a material adverse effect on the Company and its
subsidiaries considered as one enterprise. The Company, directly or
indirectly, owns all of the issued and outstanding voting securities of
each of the Subsidiaries, in each case free and clear of any liens,
encumbrances and claims;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
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(g) The Securities have been duly authorized and, when Designated
Securities are issued, authenticated and delivered against payment of the
agreed upon consideration therefor pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities and, in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts (as
defined in Section 3 hereof) with respect to such Contract Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which is
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and, at the Time of
Delivery (as defined in Section 3(b)(i) hereof), the Indenture will be duly
qualified under the Trust Indenture Act and will constitute a valid and
legally binding obligation of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity; and the Securities and the Indenture will
conform to the description thereof contained in the Prospectus;
(h) In the event that any of the Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and, when executed and
delivered by the Company and the purchaser named therein, will constitute a
valid and legally binding agreement of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity; and any Delayed
Delivery Contracts will conform to the description thereof in the
Prospectus;
(i) The issue and sale by the Company of the Designated Securities and
the compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, each of the Delayed Delivery Contracts, if any,
this Agreement and any Pricing Agreement with respect to the Designated
Securities, and the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company or any of its subsidiaries under, any
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject (except for conflicts, breaches, defaults, liens,
charges and encumbrances which would not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries
considered as one enterprise), nor will such action result in any violation
of the provisions of the Certificate or Articles of Incorporation, as
amended, or the By-Laws of the Company or any of its subsidiaries or any
statute, order, rule or regulation applicable to the Company or any of its
subsidiaries of any court or of any Federal, state or other regulatory
authority or other governmental body having jurisdiction over the Company
or any of its subsidiaries; no authorization, approval, consent,
registration, qualification or order of or with any court or any such
regulatory authority or other governmental agency or body is required for
issue and sale
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of the Designated Securities by the Company or the consummation by the
Company of the other transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture or any Delayed Delivery Contracts,
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
(j) Except as set forth in the Prospectus, there are no actions, suits
or proceedings before or by any court or governmental agency or body,
domestic or foreign, pending or, to the knowledge of the Company,
threatened against or, to the knowledge of the Company, affecting the
Company or any of its subsidiaries which are, individually or in the
aggregate, reasonably expected to result in any material adverse change in
the general affairs, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise, or which are reasonably expected to materially and adversely
affect the consummation by the Company of this Agreement or the issuance
and sale by the Company of any of the Designated Securities; and there are
no contracts or exhibits required by the Act or by the rules and
regulations of the Commission thereunder to be filed with the Registration
Statement or required to be described or incorporated by reference in the
Registration Statement or the Prospectus which are not filed, incorporated
by reference or described as required;
(k) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(l) Arthur Andersen LLP, who are reporting upon the audited financial
statements and schedules included or incorporated by reference in the
Registration Statement, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder;
(m) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly in all material
respects the financial position of the Company and its subsidiaries as of
the dates indicated and the consolidated results of the operations and cash
flows of the Company and its subsidiaries for the periods specified. Such
financial statements (except as disclosed in the notes thereto or otherwise
stated therein) have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire
period involved. The financial statement schedules, if any, included in the
Registration Statement present fairly in all material respects the
information required to be stated therein. The selected financial data
included in the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement. The pro forma
financial statements and other pro forma financial information, if any,
included or incorporated by reference in the Registration Statement present
fairly in all material respects the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, have been properly compiled on
the pro forma bases described
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therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein;
(n) Neither the Company nor any of the Subsidiaries is in violation of
its charter or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any of the Subsidiaries is subject, other than
defaults (considered in the aggregate) which do not have, or which would
not reasonably be expected to result in, a material adverse effect on the
general affairs, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise;
(o) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by the appropriate Federal, state or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit, with such
exceptions as would not, singly or in the aggregate, materially and
adversely affect the general affairs, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
considered as one enterprise;
(p) The Company has complied and will comply with the provisions of
Florida H.B. 1771 codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations promulgated thereunder related to
issuers doing business in Cuba;
(q) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended;
(r) No Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in or contemplated
by the Prospectus; and
(s) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or
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contaminants, except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise except as set forth in or contemplated in the Prospectus. Except
as set forth in the Prospectus or as may not, individually or in the
aggregate, reasonably be expected to result in any material adverse change
in the general affairs, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, considered as one
enterprise, neither the Company nor any of the subsidiaries has been named
as a "potentially responsible party" under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended.
3. Purchase and Sale. (a)(i) Upon the execution of the Pricing
Agreement applicable to any Designated Securities and authorization by the
Representatives of the release of such Designated Securities that are
Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
(ii) The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex II attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery (as defined in subsection
(b)(i) below), such commission as may be set forth in such Pricing Agreement.
Delayed Delivery Contracts, if any, are to be with institutional investors of
the types described in the Prospectus and subject to other conditions therein
set forth. The Underwriters will not have any responsibility in respect of the
validity or performance of any Delayed Delivery Contracts.
(iii) The principal amount of Contract Securities to be deducted from
the principal amount of Designated Securities to be purchased by each
Underwriter as set forth in Schedule I to the Pricing Agreement applicable to
such Designated Securities shall be, in each case, the principal amount of
Contract Securities which the Company has been advised by the Representatives
have been attributed to such Underwriter; provided, that, if the Company has not
been so advised, the amount of Contract Securities to be so deducted shall be,
in each case, that proportion of Contract Securities which the principal amount
of Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the total principal amount of the Designated Securities
(rounded as the Representatives may determine to the nearest $1,000 principal
amount). The total principal amount of Underwriters' Securities to be purchased
by all the Underwriters pursuant to such Pricing Agreement shall be the total
principal amount of Designated Securities set forth in Schedule I to such
Pricing Agreement less the principal amount of the Contract Securities. The
Company will deliver to the Representatives not later than 3:30 p.m., New York
time, on the second business day preceding the Time of Delivery specified in the
applicable Pricing Agreement (or such other time and date as the
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Representatives and the Company may agree upon in writing) a written notice
setting forth the principal amount of Contract Securities.
(b)(i) Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, or in the form of a global certificate representing all such
Underwriters' Securities, if the related Pricing Agreement so provides, and in
such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor to the order of the
Company by wire transfer in same day funds as specified in such Pricing
Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery" for such Securities.
(ii) Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters by wire transfer in same day funds payable to
the order of the party designated in the Pricing Agreement relating to such
Securities in the amount of any compensation payable by the Company to the
Underwriters in respect of any Delayed Delivery Contracts as provided in Section
3(a) hereof and in the Pricing Agreement relating to such Securities.
4. Certain Covenants of the Company. The Company covenants and agrees
with each Underwriter as follows:
(a) To file with the Commission pursuant to Rule 424 of the Act the
Prospectus as amended or supplemented substantially in the form furnished to the
Representatives prior to the execution of the Pricing Agreement and to make no
further amendment or any supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities without
furnishing to the Representatives a copy of such amendment or supplement a
reasonable time before the filing thereof and obtaining the consent of the
Representatives to such filing, which consent may not be unreasonably withheld
or delayed; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and to furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the date
of the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after the Company receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any amendment or supplement to the Prospectus or
any amended Prospectus has been filed or transmitted for filing, of the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information, and in the event of the
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issuance of any such stop order or of any such order preventing or suspending
the use of any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution; provided, that, in connection therewith the
Company shall not be required to qualify as a foreign corporation or file a
general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of such Securities, and if at
such time any event shall have occurred 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 in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each
Underwriter, and to any dealer in securities, as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance;
(d) To make generally available to its security holders, as soon as
practicable, but in any event not later than eighteen months after the date of
the Pricing Agreement for such Designated Securities, an earnings statement of
the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for any Designated Securities and continuing to and including the earlier of (i)
the termination of trading restrictions for such Designated Securities, as
notified to the Company by the Representatives, and (ii) the Time of Delivery
for such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company (other than such
Designated Securities) which mature more than one year after such Time of
Delivery and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives; and
(f) If and to the extent specified in Schedule II of the Pricing
Agreement, to use its best efforts to cause any Designated Securities to be duly
authorized for listing on the New York Stock Exchange or any other exchange and
to be registered under the Exchange Act subject to notice of official issuance
and a notice of satisfactory distribution of the Designated Securities.
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5. Payment of Expenses. (a) The Company will pay and bear all costs and
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expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits), as originally filed and as
amended, the Preliminary Prospectus, any preliminary prospectus supplement, the
Prospectus and the Prospectus as amended or supplemented (and any amendments or
supplements to the foregoing documents), and the cost of furnishing copies
thereof to the Underwriters, (ii) the preparation, printing and distribution of
this Agreement, any Pricing Agreements, the Indenture, the Designated
Securities, any Delayed Delivery Contracts, the Blue Sky Survey and the Legal
Investment Survey, if any, (iii) the delivery of the Designated Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the fees and disbursements of counsel for the Underwriters in
connection with the Blue Sky Survey and the Legal Investment Survey, if any,
(vi) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities, (vii)
any fees charged by rating agencies for rating the Designated Securities, (viii)
the fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Designated
Securities, and (ix) the expenses, if any, of listing the Designated Securities
on the New York Stock Exchange or any other exchange. It is understood, however,
that, except as provided in this Section, Section 7, Section 8 and Section 10
--------- --------- ----------
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities by
them and any advertising expenses connected with any offers they may make.
(b) If this Agreement or any Pricing Agreement is terminated by the
Representatives in accordance with the provisions of Section 6 or l0(a)(iv), the
--------- --------
Company will reimburse the Underwriters for all their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
6. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters of any Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the date of execution
of the Pricing Agreement and the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission, and all requests for additional
information on the part of the Commission shall have been complied with to the
reasonable satisfaction of the Representatives;
(b) Winston & Strawn, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the Time of
Delivery for such Designated Securities, with respect to the good standing of
the Company, the validity of the Indenture, the Designated Securities, the
Delayed Delivery Contracts, if any, the Registration Statement, the Prospectus
as amended or supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters. In giving such opinion such
11
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of Illinois and the federal law of the United States
and the corporate law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials;
(c) Monica M. Fohrman, Senior Vice President, General
Counsel and Secretary of the Company, shall have furnished to the
Representatives her written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each of the Subsidiaries is a corporation duly
incorporated and validly existing in good standing under the laws of
the state or jurisdiction of its incorporation or formation, and each
of the Subsidiaries has full corporate power and authority under such
laws to own, lease and operate its properties and to conduct its
business as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
(iii) The Company, directly or indirectly, owns all of the
issued and outstanding voting securities of each of the Subsidiaries,
in each case free and clear of any liens, encumbrances and claims of
which such counsel has knowledge;
(iv) The Company and each of the Subsidiaries is a
corporation duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the
property owned by it makes such qualification necessary, except where
the failure to be so qualified would not have a material adverse effect
on the Company and its subsidiaries, considered as one enterprise;
(v) To such counsel's knowledge and other than as set forth
in the Prospectus, there are no actions, suits or proceedings before or
by any court or governmental agency or body, domestic or foreign,
pending or threatened against or affecting the Company or any of its
subsidiaries which are, individually or in the aggregate, reasonably
expected to result in any material adverse change in the general
affairs, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise, or which are reasonably expected to materially and
adversely affect the consummation of this Agreement or the issuance and
sale by the Company of the Designated Securities; and to such counsel's
knowledge, there are no contracts or exhibits required by the Act or by
the rules and regulations of the Commission thereunder to be filed with
the Registration Statement or required to be described or incorpordted
by reference in the Registration Statement or the Prospectus as amended
or supplemented which are not filed, incorporated by reference or
described as required;
12
(vi) The issue and sale by the Company of the Designated
Securities and the compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, each of the Delayed Delivery Contracts, if
any, this Agreement and the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein and therein
contemplated will not, to the knowledge of such counsel, result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company or any of the subsidiaries of the Company
under, any agreement or instrument to which the Company or any of the
subsidiaries of the Company is a party or by which the Company or any of the
subsidiaries of the Company may be bound or to which any of the property or
assets of the Company or any of the subsidiaries of the Company is subject
(except for conflicts, breaches, defaults, liens, charges and encumbrances which
would not, individually or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, considered as one enterprise); nor will such
action result in any violation of the provisions of the Certificate or Articles
of Incorporation, as amended, or the By-Laws of any of the subsidiaries of the
Company or, to such counsel's knowledge, any statute or order, rule or
regulation applicable to any of the subsidiaries of the Company of any court or
of any federal, state or other regulatory authority or other governmental body
having jurisdiction over any of the subsidiaries of the Company;
(vii) Nothing has come to the attention of such counsel to
cause such counsel to believe that the Registration Statement or any amendment
thereof (other than the Form T-1 and the financial statements and related
schedules and other financial and statistical data included or incorporated by
reference therein, as to which such counsel need express no opinion) at the time
it became effective contained any 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 as amended or
supplemented (other than the financial statements and related schedules and
other financial and statistical data included or incorporated by reference
therein, as to which such counsel need express no opinion) as of its date, or as
amended or supplemented at the Time of Delivery, included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(viii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial statements and
related schedules and other financial and statistical data included or
incorporated by reference therein, as to which such counsel need express no
opinion), at the respective time such documents were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act, and the applicable rules and regulations of the Commission
thereunder, and nothing has come to the attention of such counsel to cause such
counsel to believe that any of such documents (other than the financial
statements and related schedules and other financial and statistical data
included or incorporated by reference therein, as to which such counsel need
express no opinion), when they were so filed, in the case of a registration
statement which became effective under the Act, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
13
therein or necessary to make the statements therein not misleading and, in
the case of other documents which were filed under the Exchange Act with
the Commission, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
documents were so filed, not misleading, in each case after excluding any
statement in any such document which does not constitute part of the
Registration Statement or the Prospectus as amended or supplemented
pursuant to Rule 412 under the Act;
and to such further effect with respect to other legal matters relating to this
Agreement and the sale of the Designated Securities hereunder as counsel for the
Underwriters may reasonably request;
(d) Sidley Austin Brown & Wood, counsel for the Company,
shall have furnished to the Representatives their written opinion dated the Time
of Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware and the
Company has full corporate power and authority under such laws to own,
lease and operate its properties and to conduct its business as described
in the Prospectus as amended or supplemented;
(ii) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and delivered
by the Company;
(iii) In the event that any of the Designated Securities are to
be purchased pursuant to Delayed Delivered Contracts, each of such Delayed
Delivery Contracts that has been executed by the Company has been duly
authorized, executed and delivered by the Company and, assuming such
contracts have been duly executed and delivered by the institutional
purchaser named therein, constitutes a legal, valid and binding obligation
of the Company enforceable in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium fraudulent conveyance or other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law);
(iv) The Designated Securities have been duly authorized by the
Company; when the Underwriters' Securities have been duly executed and
delivered in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement and the applicable Pricing Agreement, will constitute legal,
valid and binding obligations of the Company entitled to the benefits
provided by the Indenture and will be enforceable against the Company in
accordance with their terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws of general applicability relating to or affecting
the enforcement of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in
a proceeding in equity or at law); and when the Contract Securities, if
any, have been duly
14
executed and delivered in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
this Agreement and the applicable Delayed Delivery Contracts, if any, will
constitute legal, valid and binding obligations of the Company entitled to the
benefits provided by the Indenture and will be enforceable against the Company
in accordance with their terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law);
(v) The Indenture has been duly authorized, executed and delivered
by the Company, is substantially in the form filed as an Exhibit to the
Registration Statement, and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws of general applicability
relating to or affecting the enforcement of creditors' rights and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law); and the Indenture has been duly
qualified under the Trust Indenture Act;
(vi) The issue and sale by the Company of the Designated Securities
and the compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, each of the Delayed Delivery Contracts, if any, this
Agreement and the Pricing Agreement with respect to the Designated Securities
and the consummation of the transactions herein and therein contemplated will
not result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-Laws of the Company or, to such counsel's
knowledge, any statute, order, rule or regulation applicable to the Company of
any court or of any federal, state or other regulatory authority or other
governmental body having jurisdiction over the Company; and no authorization
approval, consent, registration, qualification or order of or with any such
court or any such regulatory authority or other governmental agency or body is
required for the issue and sale of the Designated Securities by the Company or
the consummation by the Company of the other transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture or any of such Delayed
Delivery Contracts, except such as have been obtained under the Act and the
Trust Indenture Act and such authorizations, approvals, consents, registrations
or qualifications or orders as may be required under the securities or Blue Sky
laws of any jurisdiction in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(vii) 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 has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission;
(viii) At the time the Registration Statement became effective, the
Registration Statement complied, and at the Time of Delivery the Prospectus
complied (other than, in each case, the Form T-1 and the financial statements
and related schedules and other
15
financial and statistical data included or incorporated by reference
therein, as to which such counsel need express no opinion) as to form
in all material respects with the requirements of the Act and the
applicable rules and regulations thereunder; the Designated Securities
and the Indenture conform as to legal matters in all material respects
to the descriptions thereof contained in the Prospectus as amended and
supplemented and the information in the Prospectus and the Prospectus
as amended or supplemented under the caption "Description of Debt
Securities" or a comparable caption describing the Designated
Securities, to the extent that such statements constitute summaries of
certain provisions of the Designated Securities and the Indenture, have
been reviewed by such counsel and are correct in all material respects;
nothing has come to the attention of such counsel to cause such counsel
to believe that the Registration Statement or any amendment thereof
(other than the Form T-1 and the financial statements and related
schedules and other financial and statistical data included or
incorporated by reference therein, as to which such counsel need
express no opinion) at the time it became effective contained any
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 as amended or
supplemented (other than the financial statements and related schedules
and other financial and statistical data therein, as to which such
counsel need express no opinion) as of its date, or as amended or
supplemented at the Time of Delivery, included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(ix) Any discussion of the federal income tax consequences
relating to the purchase and holding of any Designated Securities which
are original issue discount securities as set forth under the
applicable caption in the Prospectus as amended or supplemented
relating to any such Designated Securities, to the extent that it
constitutes matters of law or legal conclusions, has been reviewed by
such counsel and is correct in all material respects;
and to such further effect with respect to other legal matters relating to this
Agreement and the sale of the Designated Securities hereunder as counsel for the
Underwriters may reasonably request. Such counsel may also state, that insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials, which certificates, if any, shall be
delivered to the Representatives;
(e) At the Time of Delivery, the Registration Statement and
the Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein in accordance with the Act and
the rules and regulations of the Commission thereunder and in all material
respects shall conform to the requirements of the Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, and neither the
Registration Statement nor the Prospectus, as they may then be amended or
supplemented, shall contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading;
16
(f)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, considered as one enterprise, otherwise than
as set forth or contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described in clause (i) or (ii), is in the
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 Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(g) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities, the
Representatives and the Company shall have received signed letters from each of
the public accounting firms referred to in Annex III hereto dated the date of
the Pricing Agreement for such Designated Securities and the Time of Delivery of
such Designated Securities to the effect set forth in Annex III hereto, and with
respect to such letter dated such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in form and substance reasonably
satisfactory to the Representatives;
(h) Between the date of the Pricing Agreement relating to the
Designated Securities and the Time of Delivery, (i) no downgrading shall have
occurred in the rating accorded to any of the Company's debt securities by
Moody's Investor Service, Inc., Standard & Poor's Corporation or Duff and
Phelps, Inc. and (ii) no such organization shall have publicly announced that it
proposes to withdraw or has under surveillance or review with possible negative
implications its rating of any of the Company's debt securities;
(i) All proceedings taken at or prior to the Time of Delivery in
connection with the authorization, issue and sale of the Designated Securities
shall be reasonably satisfactory in form and substance to the Representatives
and to counsel for the Underwriters, and such counsel shall have been furnished
with all such documents, certificates and opinions as they may reasonably
request for the purpose of enabling them to pass upon the matters referred to in
subsection (b) of this Section 6 and in order to evidence the accuracy of any of
---------
the representations, warranties or statements, the performance of any covenants
of the Company or the compliance with any of the conditions herein contained;
and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate of the Chairman of the Board, the President or a Vice President, and
the Secretary or an Assistant Secretary of the Company dated as of the Time of
Delivery and satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein
17
at and as of such Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of this Section
-------
6, and as to such other matters as the Representatives may reasonably request,
- -
such certificate to be based upon knowledge or belief as to proceedings
initiated or threatened referred to in subsection (a) and as to the matters set
forth in subsection (f).
If any of the conditions specified in this Section 6 shall not have
---------
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Representatives on notice to the Company at
any time at or prior to the Time of Delivery, and such termination shall be
without liability of any party to any other party, except as provided in Section
-------
5. Notwithstanding any such termination, the provisions of Sections 7, 8 and 9
- - ---------- - -
shall remain in effect.
7. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless each Underwriter (including specifically each person who may be
substituted for an Underwriter as provided in Section 11 hereof) and each
----------
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of material fact contained in the Registration Statement
(or any amendment thereto) and all documents incorporated therein by
reference, 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 an untrue statement or alleged untrue
statement of a material fact included in any Preliminary Prospectus, any
preliminary prospectus supplement, any Prospectus or any Prospectus as
amended or supplemented (or any amendment or supplement to any of the
foregoing documents) 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;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, 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, as incurred (including
reasonable fees and disbursements of counsel chosen by the Representatives
(except to the extent otherwise expressly provided in Section 7(c))),
-----------
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
subparagraph (i) or (ii) above;
18
provided, however, that this indemnity does not apply to any loss, liability,
- -------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or 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 Statement (or
any amendment thereto) or any Preliminary Prospectus, any preliminary prospectus
supplement, any Prospectus, any Prospectus as amended or supplemented (or any
amendment or supplement to any of the foregoing documents); and provided,
--------
further, that the foregoing indemnity with respect to any untrue statement or
- -------
alleged untrue statement contained in or any omission or alleged omission from
any Preliminary Prospectus or any preliminary prospectus supplement shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, liability, claim, damage or expense purchased any of the Designated
Securities that are the subject thereof if such person was not sent or given a
copy of the Prospectus (or the Prospectus as amended or supplemented) (in each
case exclusive of the documents from which information is incorporated by
reference) at or prior to the written confirmation of the sale of such
Designated Securities to such Person and the untrue statement or alleged untrue
statement contained in or the omission or alleged omission from such Preliminary
Prospectus or preliminary prospectus supplement was corrected in the Prospectus
(or the Prospectus as amended or supplemented) unless the failure to send or
give a copy of the Prospectus (or the Prospectus as amended or supplemented) to
such person results from the Company's failure to comply with its obligations
under Section 4(c) hereof.
------------
(b) Each Underwriter (including specifically each person who may be
substituted for an Underwriter as provided in Section 11 hereof) severally, but
----------
not jointly, agrees to indemnify and hold harmless the Company, each of 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
Act, from and against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a), as incurred, but only with
------------
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
Preliminary Prospectus, preliminary prospectus supplement, Prospectus or
Prospectus as amended or supplemented (or any amendment or supplement to any of
the foregoing documents), 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 such Preliminary Prospectus, preliminary prospectus
supplement, Prospectus, Prospectus as amended or supplemented (or any amendment
or supplement to any of the foregoing documents).
(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, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have under this
Section 7 except to the extent it has been prejudiced in any material respect by
- ---------
such failure or from any liability 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. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, which approval shall not be unreasonably withheld;
provided, that, if such indemnified party or
- -------- ----
19
parties reasonably determine that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party or parties, then such indemnifying party or parties shall not be entitled
to assume such defense. If the indemnifying party or parties are not entitled to
assume the defense of such action as a result of the proviso to the preceding
sentence, counsel for the indemnifying party or parties shall be entitled to
conduct the defense of such indemnifying party or parties and counsel for the
indemnified party or parties shall be entitled to conduct the defense of such
indemnified party or parties. If an indemnifying party assumes the defense of
such action, the indemnifying parties shall not be liable for any fees and
expenses for counsel for the indemnified parties incurred thereafter in
connection with such action. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding. In no event shall the indemnifying party or 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.
8. Contribution. If the indemnification provided for in Section 7 is
------------ ---------
unavailable or insufficient to hold harmless an indemnified party thereunder,
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) of Section 7, (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 Designated
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 that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Designated Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus as amended or
supplemented. 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 Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 8 were
---------
to be determined by pro rata allocation (even if the Underwriters
20
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to in the first sentence of this Section 8. 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 Section 8 shall be deemed to include
---------
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigation, preparing to defend or defending against any
action or claim which is the subject of this Section 8. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
---------
amount in excess of the amount by which the total price at which the Designated
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 Section 8 to contribute
---------
are several in proportion to their respective underwriting obligations and not
joint. Each party entitled to contribution agrees that upon commencement against
it of any action in respect to which contribution may be sought, it shall
promptly give written notice of such service to the party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
of any such service shall not relieve the party from whom contribution may be
sought for any obligation it may have hereunder or otherwise, except to the
extent it has been prejudiced in any material respect by such failure or from
any liability it may have otherwise than on account of this contribution
agreement
9. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
The respective representations, warranties, indemnities, agreements and other
statements of the Company or its officers set forth in or made pursuant to this
Agreement and the Pricing Agreement and the indemnity and contribution
agreements of the Underwriters contained in Section 7(b) and Section 8 hereof
------------ ---------
will remain operative and in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of the Company, or any officer or director or controlling person of the Company,
or any Underwriter, or any controlling person of any Underwriter, and will
survive delivery of and payment for the Designated Securities.
10. Termination of Pricing Agreement. (a) The Representatives may
--------------------------------
terminate the Pricing Agreement with respect to Designated Securities, by notice
to the Company, (i) if trading in any securities of the Company has been
suspended by the Commission or the National Association of Securities Dealers,
Inc., or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority,
(ii) if a banking moratorium has been declared by either federal or New York
authorities, or a material disruption in commercial banking (including the
Federal Funds wire transfer system) or securities settlement or clearance
services in the United States shall have occurred, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities including the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
been such a material adverse change in general economic, political, or financial
conditions, the result
21
of which, in the case of clauses (i)-(iv), makes it (or in the case of clause
(iv), the effect of international conditions on the financial markets in the
United States shall be such that), in the Representatives' good faith judgment,
impracticable to market the Designated Securities on the terms and in the manner
contemplated by the Prospectus or to enforce contracts for the sale of the
Designated Securities.
(b) If any Pricing Agreement with respect to Designated Securities is
terminated pursuant to this Section 10, such termination shall be without
----------
liability of any party to any other party, except to the extent provided in
Section 5 hereof. Notwithstanding any such termination, the provisions of
- ---------
Sections 7, 8 and 9 shall remain in effect.
- ------------- -
11. Default. (a) If any Underwriter shall default in its obligations
-------
to purchase the Underwriters' Securities which it has agreed to purchase under
the Pricing Agreement relating to such Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed periods, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments to the Registration Statement or the Prospectus
which may thereby be made necessary. The term "Underwriter" as used in this
-----------
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed ten percent (10%) of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of
Underwriters' Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of
22
Underwriters' Securities which remains unpurchased exceeds ten percent (10%) of
the aggregate principal amount of the Designated Securities, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Underwriters' Securities of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 5 hereof and the indemnity and contribution
---------
agreements in Section 7 and Section 8 hereof; but nothing herein shall relieve a
--------- ---------
defaulting Underwriter from liability for its default.
(d) If any Pricing Agreement shall be terminated pursuant to
subsection (c) of this Section 11, the Company shall not then be under any
----------
liability to any Underwriter with respect to Designated Securities covered by
such Pricing Agreement, except as provided in Section 5, Section 7 and Section 8
--------- --------- ---------
hereof; but, if for any other reason the Underwriters' Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company shall then be under no further liability to any Underwriter with
respect to such Designated Securities, except as provided in Section 5,
---------
Section 7 and Section 8 hereof.
- --------- ---------
12. Notices. All statements, requests, notices, agreements or
-------
other communications hereunder shall be in writing or by telegram if promptly
confirmed in writing and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail to the address of the
Representatives as set forth in the Pricing Agreement; and if to the Company
shall be sufficient in all respects if delivered or sent by registered mail to
the address of the Company set forth in the Registration Statement, Attention:
Secretary.
13. Parties. This Agreement and each Pricing Agreement shall be
-------
binding upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Sections 7, 8 and 9 hereof, the officers and
---------- - -
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Representation of Underwriters. In all dealings hereunder,
------------------------------
the Representatives of the Underwriter of Designated Securities shall act on
behalf of each such Underwriter, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
15. Information Furnished by Underwriters. The Underwriters will
-------------------------------------
provide a separate letter which will constitute the only written information
furnished by or on behalf of any
23
Underwriter referred to in subsections (b) and (c) of Section 2 hereof and in
---------
subsections (a) and (b) of Section 7 hereof.
---------
16. Time of Essence. Time shall be of the essence of each Pricing
---------------
Agreement.
17. Governing Law. This Agreement and each Pricing Agreement
-------------
shall be governed by, and construed in accordance with the laws of the State of
New York.
18. Counterparts. This Agreement and each Pricing Agreement may
------------
be executed by any one or more of the parties hereto or thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
19. Consent. The Company and the Underwriters acknowledge that
-------
Winston & Strawn, which is acting as counsel to the Underwriters in connection
with the offer and sale of the Securities, also acts as counsel from time to
time to the Company and certain of its affiliates in connection with unrelated
matters. The Company and the Underwriters consent to Winston & Strawn so acting
as counsel to the Underwriters.
********
24
If the foregoing is in accordance with your understanding please
sign and return to us four counterparts hereof.
Very truly yours,
R. R. DONNELLEY & SONS COMPANY
By: ___________________________
Title:
Accepted as of the date
first above written:
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Bane One Capital Markets, Inc.
First Union Securities, Inc.
The Williams Capital Group, L.P.
By: Morgan Stanley & Co. Incorporated
By: ___________________________________
Title:
25
Annex I
Pricing Agreement
_________, 20__
[Name of Representative]
As Representative of the several Underwriters
named in Schedule I hereto
[Address of Representative]
Dear Sirs:
R. R. DONNELLEY & SONS COMPANY (the "Company") proposes, subject
-------
to the terms and conditions stated herein and in the Underwriting Agreement,
dated , 2001 (the "Underwriting Agreement"), between the Company on the one
----------------------
hand and [Name of Representative] on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
------------
specified in Schedule II hereto (the "Designated Securities") [less the
---------------------
principal amount of Designated Securities covered by delayed delivery contracts
("Delayed Delivery Contracts") as provided below (such Designated Securities
--------------------------
covered by Delayed Delivery Contracts being hereinafter referred to collectively
as "Contract Securities")]. Each of the provisions of the Underwriting Agreement
-------------------
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provision has been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty with respect to
the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be
a representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed, or in the case
of a supplement mailed for filing, with the Commission.
[None of the Designated Securities are to be purchased from the
Company pursuant to Delayed Delivery Contracts.]
[The Company hereby authorizes the Underwriters to solicit offers
to purchase Designated Securities from the Company pursuant to Delayed Delivery
Contracts, substantially in the form of Schedule III attached hereto but with
such changes therein as you and the Company may authorize or approve. The
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to you, for the accounts of the Underwriters, at
the Time of Delivery, a commission of____ % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been made.
Delayed Delivery Contracts are to be with institutional investors of the types
mentioned in the [final paragraph] under the caption "Plan of Distribution" in
--------------------
the Prospectus and subject to other conditions therein set forth. The Company
will enter into a Delayed Delivery Contract in each case arranged by the
Underwriters where the Company has advised you of its approval of the proposed
sale of Contract Securities to the purchaser thereunder; provided, however, that
-------- -------
the minimum principal amounts of Designated Securities covered by any Delayed
Delivery Contract with any purchaser or any Delayed Delivery Contract with
affiliated purchasers shall be $____________ and the aggregate principal amounts
of Designated Securities covered by Delayed Delivery Contracts shall not exceed
$______________ unless the Company shall otherwise agree in writing. However, if
the aggregate principal amount of Designated Securities requested for delayed
delivery is less than $_________________ , the Company will have the right to
reject all requests. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts.]
[The amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I hereto shall be, in each case, the amount of Contract
Securities which the Company has been advised by you have been attributed to
such Underwriter, provided, that, if the Company has not been so advised, the
-------- ----
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under this Agreement bears to the
total principal amount of the Designated Securities (rounded as you may
determine to the nearest $1,000 principal amount). The total principal amount of
Designated Securities to be purchased by all the Underwriters shall be
$___________ less the principal amount of the Designated Securities covered by
Delayed Delivery Contracts. The Company will deliver to you not later than 3:30
p.m., New York time, on the business day preceding the Time of Delivery (or such
other time and date as you and the Company may agree upon in writing) a written
notice setting forth the principal amount of Designated Securities covered by
Delayed Delivery Contracts.]
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at a purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto,
less such Underwriter's portion of Contract Securities determined as provided in
the preceding paragraph.
If the foregoing is in accordance with your understanding, please
sign and return to us four counterparts, hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the
A-2
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters on the one hand and the
Company on the other. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be pursuant to the authority set
forth in a form of Agreement Among Underwriters, the form of which shall be
supplied to the Company for examination, upon request, but without warranty on
the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
R.R. DONNELLEY & SONS COMPANY
By: __________________________
Title: _______________________
Accepted as of the date hereof:
By: [Name of Representative]
By: ___________________________
Title: ______________________
On behalf of each of the Underwriters
A-3
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
- ----------- --------
[Names of Underwriters]............
_________
Total..................... $
SCHEDULE II
Designated Securities
Title of Designated Securities:
[%] [Floating Rate] [Extendable] [Sinking Fund] [Zero Coupon] [Notes]
[Debentures], due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus
accrued interest, if any, from to the Time of Delivery [and accrued
amortization, if any from to the Time of Delivery].
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus
accrued interest, if any, from to the Time of Delivery [and accrued
amortization, if any from to the Time of Delivery].
Specified funds for payment of purchase price or delayed delivery commission:
[New York Clearing House] [same day] funds
Indenture:
Indenture, dated as of , between the Company and ,
as Trustee.
Maturity:
Interest Rate:
[%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[Months and dates]
Record Dates for Interest Payments:
[Months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of $ or an integral multiple thereof,
[on or after , at the following redemption prices (expressed as
percentages of the principal amount). If [redeemed on or before ,
and if] redeemed during the 12-month period beginning
Redemption
Year Price
---- -----
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling in or after , at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restrictions on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire $ principal amount of Designated Securities
on in each of the years through at 100% of their principal
amount plus accrued interest] [, together with [cumulative]
[non-cumulative] redemptions at the option of the Company to retire an
additional $ principal amount of Designated Securities in the
years through at 100% of their principal amount plus
accrued interest].
[If Designated Securities are extendable debt Securities, insert Extendable
provisions:
Designated Securities are repayable on ,[insert date and years],
at the option of the holder, at their principal amount with accrued
interest. Initial annual interest rate will be % and thereafter
annual interest rate will be adjusted on , and to a rate
not less than % of the effective annual interest rate on U.S.
Treasury
S-2
obligations with -year maturities as of the [insert date 15 days prior to
maturity date] prior to such [insert maturity date].]
[If Designated Securities are Floating Rate Debt Securities, insert-
Floating rate provisions:
[Insert applicable terms]
MISCELLANEOUS
Time of Delivery:
[Time and date], 20__
Closing Location:
Delayed Delivery:
[None] [Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the other of ]
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
_________________
A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
--------
accompanying description, if necessary to the issuer's understanding of the
------------
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus Supplement
for the offering.
S-3
Annex II
DELAYED DELIVERY CONTRACT
R. R. DONNELLEY & SONS COMPANY
[Name and address of Representative(s)]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from R. R. Donnelley & Sons
Company (hereinafter called the "Company"), and the Company agrees to sell to
-------
the undersigned: $ principal amount of the Company's [Title of Designated
Securities] (hereinafter called the "Designated Securities"), offered by the
---------------------
Prospectus of the Company dated , 20 as amended or supplemented, receipt
of a copy of which is hereby acknowledged at a purchase price of % of the
principal amount thereof, plus accrued interest from the date from which
interest accrues as set forth below, and on the further terms and conditions set
forth in this contract.
[The undersigned will purchase the Designated Securities from the Company on
,20_ (the "Delivery Date") and interest on the Designated
Securities so purchased wili accrue from , 20 _.]
[The undersigned will purchase the Designated Securities from the Company
on the delivery date or dates and in the principal amount or amounts set forth
below:
Principal Date from Which
Delivery Date Amount Interest Accrues
- ------------- ------ ----------------
,20 $ , 20
,20 $ , 20
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
-------------
Payment for the Debt Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to the Company or its order
by wire transfer in same day funds to a bank account specified by the Company on
[the] [such] Delivery Date (or in such other funds and/or at such other place as
the Company and the undersigned may agree upon in writing), upon delivery to the
undersigned of the Designated Securities then to be purchased by the undersigned
in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than two full business days prior to [the] [such] Delivery Date.
The obligation of the Company to sell and of the undersigned to take
delivery of and make payment for the Designated Securities on [the] [each]
Delivery Date shall be subject to the condition[s] that the purchase of the
Designated Securities to be made by the undersigned
shall not on [the] [such] Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject [and the Company, on or before
, 20 , shall have sold to the several Underwriters (the "Underwriters")
------------
pursuant to the Pricing Agreement dated , 20 , between the Company and the
Underwriters, an aggregate principal amount of Designated Securities equal to
$ , minus the aggregate principal amount of Designated Securities covered by
this contract and other contracts similar to this contract]. The obligation of
the undersigned to take delivery of and make payment for the Designated
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Designated Securities pursuant to other
contracts similar to this contract.
[The undersigned understands that the Underwriters are also purchasing
Designated Securities from the Company, but that the obligations of the
undersigned hereunder are not contingent on such purchases.] Promptly after
completion of the sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below a notice to such effect,
accompanied by a copy of the Opinion of Counsel for the Company delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that (1) its investment in the Designated Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject, (2) all necessary corporate action for the due execution
and delivery of this contract and the payment for and purchase of the Designated
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase and (3) upon the acceptance hereof by the Company
and the mailing or delivery of a copy hereof as provided below, this contract
will constitute a valid and binding agreement of the undersigned in accordance
with its terms.
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.
This contract shall be governed by the laws of the State of New York.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
It is understood [that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of the Debt Securities in excess of
$ and] that the acceptance of any Delayed Delivery Contract (including this
contract) is in the Company's sole discretion and that, without limiting the
foregoing, acceptances of such contracts 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
a signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned when such
copy is so mailed or delivered.
A-2
Yours very truly,
_______________________________
(Name of Purchaser)
By_____________________________
(signatures)
----------
________________________________
(Name and Title)
________________________________
(address)
Accepted
, 20
R R. DONNELLEY & SONS COMPANY
By____________________
Title:________________
A-3
Annex III
A. Pursuant to Section 6(g) of the Underwriting Agreement,
Arthur Andersen LLP, or such other independent accountants for the Company as
appropriate, shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the Exchange Act and the applicable published rules and
regulations thereunder, and no information as to them is required to be
furnished pursuant to Item 509 of Regulation S-K;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules of the Company examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form with the applicable
accounting requirements of the Act or the Exchange Act, as the case may
be, and the published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data,
pro forma financial information and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the representatives of the Underwriters
(the "Representatives");
---------------
(iii) In their opinion, the unaudited selected financial
information with respect to the consolidated results of operations and
financial position of the Company for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference in
Item 6 of the Company's Annual Report on Form 10-K for the most recent
fiscal year for which such a Form 10-K has been filed with the
Commission (the "Form 10-K") complied as to form with the applicable
---------
accounting requirements of the Act or the Exchange Act, as the case may
be, and the published rules and regulations thereunder and is fairly
stated in relation to, and agrees with the corresponding amounts (after
restatement where applicable) in, the audited consolidated financial
statements for such fiscal years which were included or incorporated by
reference in the Company's Annual Reports on Form 10-K for such five
fiscal years or included in a Form S-K (a "Form 8-K") incorporated by
--------
reference in the Prospectus;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) The unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus do not comply as
to form with the applicable accounting requirements of the Exchange Act
and published rules and regulations thereunder or are not presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Form 10-K or included in a Form 8-K;
(B) Any unaudited income statement data and balance sheet items
included or incorporated by reference in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference
in the Form 10-K or included in a Form 8-K;
(C) The unaudited financial statements which were not included or
incorporated by reference in the Prospectus but from which were derived
the unaudited condensed financial information, income statement data and
balance sheet items included or incorporated by reference in the
Prospectus and referred to in clause (A) or (B)) are not fairly presented
in conformity with generally accepted accounting principles applied on a
basis substantially consistent with the basis for the audited financial
statements included or incorporated by reference in the Form 10-K or
included in a Form 8-K;
(D) Any unaudited pro forma financial statements included or
incorporated by reference in the Prospectus do not comply as to form with
the applicable accounting requirements of Rule 1l-02 of Regulation S-X,
that the pro forma financial statements were not compiled on the
respective bases described therein, that the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of
such statements, that the pro forma adjustments with respect to such pro
forma financial statements were not appropriate adjustments or that such
pro forma financial statements would require any further adjustments to
give effect to the transaction or transactions giving rise to the
inclusion of such pro forma financial statements;
(E) As of a specified date not more than five days prior to the
date of delivery of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock upon
exercise of options and upon conversion of convertible securities which
were outstanding on the date of the latest statement of financial
condition included or incorporated by reference in the Prospectus) or any
increases in the consolidated long term debt of the Company and its
subsidiaries or any decreases in consolidated net current assets or net
assets or other items specified by the Representatives, or any changes in
any other items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case for
changes, increases or
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decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(F) For the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in clause (E) there were any decreases in consolidated
net revenue, or operating profit or the total or per share amounts of
consolidated net income or any changes in any other items specified by
the Representatives in each case as compared with the comparable period
of the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter;
(v) With respect to any unaudited pro forma financial information
of the Company included or incorporated by reference in the Prospectus,
they have compared such unaudited pro forma financial information to
corresponding amounts reflected in the audited consolidated financial
statements of the Company and found them to be in agreement;
(vi) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in subparagraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries and which appear in the Prospectus, in
Part II of, or in exhibits and schedules to, the Registration Statement
or in documents incorporated by reference in the Prospectus, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement; and
B. Pursuant to Section 6(g) of the Underwriting Agreement, the
Underwriters shall receive additional letters as to such matters as the
Representatives may reasonably request, in form and substance satisfactory to
the Representatives, from the independent certified public accountants for any
entity other than the Company for which financial statements are included or
incorporated by reference in the Registration Statement or Prospectus.
All references in this Annex III to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
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