SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Sections 13 or 15(d) of the Securities Exchange Act
of 1934
Date of Report (Date of Earliest Event Reported): March 8, 1995
Cone Mills Corporation
(Exact Name of Registrant as Specified on its Charter)
North Carolina 1-3634 56-0367025
(State or Other Jurisdiction (Commission File IRS Employer
of Incorporation) Number) Identifi-
cation No.
1201 Maple Street, Greensboro, North Carolina 27405
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code (910) 379-6246
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Item 7. Financial Statements and Exhibits.
This report is being filed to provide the following
exhibits:
1 Form of Underwriting Agreement
4 Form of Debenture due 2005
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
CONE MILLS CORPORATION
(Registrant)
Date: March 8,1995 By: /S/ John L. Bakane
John L. Bakane
Vice President
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CONE MILLS CORPORATION
Debt Securities
Underwriting Agreement
_____________, 199_
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Cone Mills Corporation, a North Carolina corporation
(the "Company"), proposes to issue and sell to the underwriters
named in Schedule II hereto (the "Underwriters"), for whom you
are acting as representatives (the "Representatives"), the
principal amount of its debt securities identified in Schedule I
hereto (the "Securities"), to be issued under the indenture
specified in Schedule I hereto (the "Indenture") between the
Company and the Trustee identified in such Schedule (the
"Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then
the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities
and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the "Securities Act"), a registration statement (the file number
of which is set forth in Schedule I hereto) on Form S-3, relating
to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed
with, or proposes to file with, the Commission pursuant to Rule
424 under the Securities Act a prospectus supplement specifically
relating to the Securities. The registration statement as
amended to the date of this Agreement is hereinafter referred to
as the "Registration Statement" and the related prospectus
covering the Shelf Securities in the form first used to confirm
sales of the Securities is hereinafter referred to as the "Basic
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Prospectus". The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Securities in
the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". Any reference in
this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to
Rule 424 or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act which were filed
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or
the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include any
documents filed under the Exchange Act after the date of this
Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are
deemed to be incorporated by reference therein.
For purposes of this Agreement, the joint venture known
as Parras Cone de Mexico, S.A. de C.V. (the "Joint Venture")
between Cone Mills (Mexico), S.A. de C.V. ("Cone Mexico"), a
subsidiary of the Company, and Compania Industrial de Parras,
S.A. de C.V. will be deemed a "subsidiary" of the Company.
The Company hereby agrees with the Underwriters as
follows:
1. The Company agrees to issue and sell the Securities
to the several Underwriters as hereinafter provided, and each
Underwriter, on the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter
stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth
opposite such Underwriter's name in Schedule II hereto at the
purchase price set forth in Schedule I hereto plus accrued
interest, if any, from the date specified in Schedule I hereto to
the date of payment and delivery.
2. The Company understands that the several
Underwriters intend (i) to make a public offering of their
respective portions of the Securities and (ii) initially to offer
the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the
Company or to its order by immediately available funds on the
date and at the time and place set forth in Schedule I hereto (or
at such other time and place on the same or such other date, not
later than the fifth Business Day thereafter, as you and the
Company may agree in writing). Such payment will be made upon
delivery to, or to you for the respective accounts of, such
Underwriters
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of the Securities registered in such names and in such
denominations as you shall request not less than two full
Business Days prior to the date of delivery. As used herein, the
term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City. The
time and date of such payment and delivery with respect to the
Securities are referred to herein as the Closing Date. The
certificates for the Securities will be made available for
inspection and packaging by you by 1:00 P.M. on the Business Day
prior to the Closing Date at such place in New York City as you
and the Company shall agree.
4. The Company represents and warrants to each
Underwriter that:
(a) the Registration Statement has been
declared effective by the Commission under the
Securities Act; no stop order suspending the
effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the
Company, threatened by the Commission; and the
Registration Statement and Prospectus (as amended
or supplemented if the Company shall have furnished
any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material
respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), 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 date of the
Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or
omit to state any material fact required to be
stated therein or necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing
Date, if applicable, will not contain any 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 were made,
not misleading; except that the foregoing
representations and warranties shall not apply to
(i) that part of the Registration Statement which
constitutes the Statement of Eligibility and
Qualification (Form T-l) of the Trustee under the Trust
Indenture Act, and (ii) statements or omissions in the
Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto made
in reliance upon and in conformity with information
relating to any Underwriter furnished to the
Company in writing by such Underwriter through the
Representatives expressly for use therein;
(b) the documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements
of
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the Exchange Act, and none of such documents
contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; and any
further documents so filed and incorporated by reference
in the Prospectus, when such documents are filed with
the Commission will conform in all material respects to
the requirements of the Exchange Act, as applicable, and
will not contain 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 were made, not
misleading;
(c) the consolidated financial statements, together
with the related notes thereto, included or incorporated
by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial
position of the Company and its consolidated
subsidiaries as of the dates indicated and the results
of their operations and the changes in their
consolidated results of operations and changes in
financial condition as of the dates and for the periods
specified; said financial statements have been prepared
in conformity with generally accepted accounting
principles applied on a consistent basis (except as
otherwise noted therein), and the supporting schedules
included or incorporated by reference in the
Registration Statement present fairly the information
required to be stated therein; and the pro forma
financial information, together with the related notes
thereto, included or incorporated by reference
in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act,
as applicable;
(d) since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, there has not been any material adverse
change, or any development involving a prospective
material adverse change, in the general affairs,
business, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus; and
except as set forth or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the
Company and its subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the state of its incorporation, with power
and authority (corporate and other) to own or lease its
properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign
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corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any
business so as to require such qualification, other than
where the failure to be so qualified or in good standing
would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(f) each of the Company's subsidiaries (other than
the Joint Venture and Cone Mexico) has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and
other) to own or lease its properties and conduct its
business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the
transaction of business and is in good standing under
the laws of each jurisdiction in which it owns
or leases properties or conducts any business so as to
require such qualification, other than where the failure
to be so qualified or in good standing would not have a
material adverse effect on the Company and its
subsidiaries taken as a whole; each of the Joint Venture
and Cone Mexico has been duly organized and is validly
existing as a sociedad anonima de capital variable under
the laws of Mexico; and, with respect to each subsidiary
of the Company other than the Joint Venture and
Cliffside Railroad Company, all the outstanding shares
of capital stock of each such subsidiary
and, with respect to the Joint Venture and Cliffside
Railroad Company, the outstanding shares of capital
stock of the Joint Venture and Cliffside Railroad
Company beneficially owned by the Company, have been
duly authorized and validly issued, are fully paid and
non-assessable, and (other than as set forth or
contemplated in the Prospectus and in the case of
foreign subsidiaries, for directors' qualifying shares
or other shares required under applicable law to be
owned by parties other than the Company) are owned by
the Company, directly or indirectly, free and clear of
all liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized,
executed and delivered by the Company and constitutes
the valid and binding agreement of the Company, except
as rights to indemnity and contribution hereunder may be
limited by applicable law or public policy;
(h) the Securities have been duly authorized, and,
when issued and delivered pursuant to this Agreement,
will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding
obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly
authorized and upon effectiveness of the Registration
Statement will have been duly qualified under the Trust
Indenture Act and, when
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executed and delivered by the Company and the Trustee,
the Indenture will constitute a valid and binding
instrument of the Company; and the Securities and the
Indenture will conform to the descriptions thereof in
the Prospectus;
(i) neither the Company nor any of its subsidiaries
is, or with the giving of notice or lapse of time or
both would be, in violation of or in default under, its
Articles of Incorporation or Bylaws or other
organizational documents or any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for
violations and defaults which individually and in the
aggregate are not material to the Company and its
subsidiaries taken as a whole or to the holders of the
Securities; the issue and sale of the Securities and the
performance by the Company of all of the provisions of
its obligations under the Securities, the Indenture and
this Agreement 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, any indenture,
mortgage, deed of trust, loan agreement or other
material 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, nor will any such
action result in any violation of the provisions of the
Articles of Incorporation or the Bylaws or other
organizational documents of the Company or any of its
subsidiaries or any applicable law or statute or any
order, rule or regulation of any court
or governmental agency or body having jurisdiction over
the Company, its subsidiaries or any of their respective
properties; and no consent, approval, authorization,
order, registration or qualification of or with any such
court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by
the Company of the related transactions contemplated by
this Agreement or the Indenture, except such consents,
approvals, authorizations, registrations or
qualifications as have been obtained under the
Securities Act, the Trust Indenture Act
and as may be required under state securities or Blue
Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental
proceedings pending or, to the best knowledge of the
Company, threatened to which the Company or any of its
subsidiaries is or may be a party or to which any
property of the Company or any of its
subsidiaries is or may be the subject which, if
determined adversely to the Company, could individually
or
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in the aggregate reasonably be expected to have a
material adverse effect on the general affairs,
business, prospects, management, financial position,
stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole and, to
the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental
authorities or threatened by others; and there
are no contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the
Registration Statement or the Prospectus which are not
filed or described as required;
(k) the conditions for use of a Registration
Statement on Form S-3 set forth in the General
Instructions to Form S-3 have been satisfied with
respect to the Company and the transactions contemplated
by this Agreement, the Indenture and the Registration
Statement; and
(l) the Joint Venture Agreement (the "Joint Venture
Agreement") between Compania Industrial de Parras, S.A.
de C.V. and Cone Mexico, dated as of June 25, 1993 has
been duly authorized, executed and delivered by Cone
Mexico and constitutes the valid and binding agreement
of Cone Mexico.
5. The Company covenants and agrees with the several
Underwriters as follows:
(a) to file the Prospectus in a form approved by
you pursuant to Rule 424 under the Securities Act in the
manner and within the time period required by such Rule;
(b) to deliver to each Representative and counsel
for the Underwriters, at the expense of the Company, a
signed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case
including exhibits and documents incorporated by
reference therein and, during the period mentioned in
paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and
supplements thereto) and documents incorporated by
reference therein as you may reasonably request;
(c) from the date hereof and prior to the Closing
Date, to furnish to you a copy of any proposed amendment
or supplement to the Registration Statement or the
Prospectus, for your review, and not to file any such
proposed amendment or supplement to which you reasonably
object;
(d) 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(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required under
the Securities
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Act or state securities or Blue sky laws in connection
with the offering or sale of the Securities, and during
such same period, to advise you promptly, and to confirm
such advice in writing, (i) when any amendment to the
Registration Statement shall have become effective, (ii)
of any request by the Commission for any amendment to
the Registration Statement or any amendment or
supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of
the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv)
of the receipt by the Company of any notification with
respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if
issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period after the first date of
the public offering of the Securities as in the opinion
of counsel for the Underwriters a prospectus relating to
the Securities is required under the Securities Act to
be delivered in connection with sales by an Underwriter
or dealer, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with the
Securities Act and the Exchange Act, as the case may be,
forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to
which Securities may have been sold by you on behalf of
the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may
be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the
light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the
Prospectus will comply with the Securities Act and the
Exchange Act, as the case may be;
(f) to endeavor to qualify the Securities for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to
continue such qualification in effect so long as
reasonably required for distribution of the Securities
and to pay all reasonable fees and expenses (including
fees and disbursements of counsel to the Underwriters)
reasonably incurred in connection with such
qualification and in connection with the
determination of the eligibility of the Securities for
investment under the laws of such
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jurisdictions as you may designate; provided that the
Company shall not be required to qualify as a foreign
corporation or file a general consent to service of
process or become subject to taxation in any
jurisdiction;
(g) to make generally available to its security
holders and to you as soon as practicable an earnings
statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to
furnish to you copies of all reports or other
communications (financial or other) furnished to holders
of Securities generally, and copies of any reports and
financial statements filed by the Company with the
Commission or any national securities exchange;
(i) during the period beginning on the date hereof
and continuing to and including the Business Day
following the Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of
or guaranteed by the Company that are substantially
similar to the Securities without your prior written
consent; and
(j) to pay all costs and expenses incident to the
performance of its obligations hereunder, including
without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in
each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the
registration or qualification and determination of
eligibility for investment of the Securities under the
laws of such jurisdictions as the Underwriters may
designate (including reasonable fees of counsel for the
Underwriters and their disbursements), (iv) in
connection with the listing of the Securities on any
stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc. (for purposes of
this clause (v), such costs and expenses shall include
only any required filing fee), (vi) in connection with
the printing (including duplication costs) and delivery
of this Agreement, the Indenture, the
Preliminary and Supplemental Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to
Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing
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and shipping, as herein provided and (vii) payable to
rating agencies in connection with the rating of the
Securities.
6. The several obligations of the Underwriters
hereunder shall be subject to the following conditions:
(a) the representations and warranties of the
Company contained herein are true and correct on and as
of the Closing Date as if made on and as of the Closing
Date and the Company shall have complied with all
agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the
Closing Date;
(b) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable
time period prescribed for such filing by the rules and
regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for
such purpose shall be pending before or, to the
knowledge of the Company or you, threatened by the
Commission; and all requests for additional
information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not
have occurred any downgrading, nor shall any notice have
been given to the Company or you of (i) any intended or
potential downgrading or (ii) any review or possible
change in the rating (other than a review or change with
no implication of a possible downgrading of such rating)
accorded any securities of or guaranteed by the Company
by any "nationally recognized statistical rating
organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which
information is given in the Prospectus there shall not
have been any material adverse change or any development
involving a prospective material adverse change, in the
general affairs, business, management, financial
position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated
in the Prospectus;
(e) the Representatives shall have received on and
as of the Closing Date a certificate of an executive
officer of the Company satisfactory to you to the effect
set forth in subsections (a) through (c) of this Section
and to the further effect that there has not occurred
any material
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adverse change, or any development involving a
prospective material adverse change, in the general
affairs, business, management, financial position,
stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, from
that set forth or contemplated in the Prospectus.
(f) Neil W. Koonce, General Counsel of the Company,
shall have furnished to you his written opinion, dated
the Closing Date, in form and substance reasonably
satisfactory to you, to the effect that:
(i) the Company has been duly
incorporated and is validly existing as a
corporation in good standing under the laws
of its jurisdiction of incorporation, with
the corporate power and authority to own or
lease its properties and conduct its business
as described in the Prospectus as then
amended or supplemented;
(ii) the Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such
qualification, other than where the failure to be so
qualified or in good standing would not have a material
adverse effect on the Company and its subsidiaries taken
as a whole;
(iii) each of the Company's subsidiaries (other than
the Joint Venture and Cone Mexico) has been duly
incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with
the corporate power and authority to own and lease its
properties and conduct its business as described in the
Prospectus, as then amended and supplemented, and has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to
require such qualification, other than where the failure
to be so qualified and in good standing would not have
a material adverse effect on the Company and its
subsidiaries taken as a whole; and all of the issued
shares of capital stock of each subsidiary (other than
the Joint Venture, Cone Mexico and Cliffside Railroad
Company) and, with respect to Cliffside Railroad
Company, all of the issued shares of capital stock
beneficially owned by the Company, have been duly
authorized and validly issued, are fully paid and
non-assessable, and (other than as set forth or
contemplated in the Prospectus and except in the case of
foreign subsidiaries, for directors' qualifying shares)
are owned directly or indirectly by the
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Company, free and clear of any perfected security
interests or, to the best knowledge of such counsel, any
other security interests, liens, encumbrances, equities
or claims;
(iv) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental
proceedings pending or, to the best of such counsel's
knowledge, threatened to which the Company or any of its
subsidiaries is or may be a party, or to which any
property of the Company or its subsidiaries is or may be
the subject, that are required to be described in the
Registration Statement or the Prospectus; to the best of
such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities
or threatened by others; and such counsel does not know
of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the
Registration Statement or the Prospectus which are not
filed or described as required;
(v) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, (A) subject to
applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws
affecting creditors' rights and remedies generally,
(B) subject to general principles of equity, including
principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is
sought in a proceeding at law or in equity) and
(C) except as rights to indemnity and contribution
hereunder may be limited by applicable law or public
policy;
(vi) the Securities have been duly authorized,
executed and delivered by the Company and, when duly
authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this
Agreement, will constitute valid and binding obligations
of the Company entitled to the benefits provided by the
Indenture, (A) subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws affecting creditors' rights
and remedies generally and (B) subject to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law
or in equity);
(vii) the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a
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valid and binding instrument of the Company, (A) subject
to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws
affecting creditors' rights and remedies generally and
(B) subject to general principles of equity, including
principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is
sought in a proceeding at law or in equity); and the
Indenture has been duly qualified under the Trust
Indenture Act;
(viii) neither the Company nor any of its
subsidiaries is, or with the giving of notice or lapse
of time or both would be, in violation of or in default
under, its Articles of Incorporation or Bylaws or other
organizational documents or any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which it or any
of them or any of their respective properties is bound,
except for violations and defaults which individually
and in the aggregate are not material to the Company and
its subsidiaries taken as a whole or to the holders of
the Securities; the issue and sale of the Securities and
the performance by the Company of its obligations under
the Securities, the Indenture and this Agreement 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, any indenture, mortgage,
deed of trust, loan agreement or other material
agreement or instrument known to such counsel 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, nor will any such
action result in any violation of the provisions of the
Articles of Incorporation or Bylaws or other
organizational documents of the Company or any of its
subsidiaries or any applicable law, statute, rule or
regulation or any order, judgment or decree known to him
of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any
of their respective properties;
(ix) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue
and sale of the Securities or the consummation of the
related transactions contemplated by this Agreement or
the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have
been obtained under the Securities Act and the Trust
-13-
<PAGE>
Indenture Act and as may be required under state
securities or Blue sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(x) the statements in the Prospectus under "Legal
Proceedings" and "Description of Debt Securities" in the
Prospectus or incorporated by reference from Item 3 of
Part 1 of the Company's Annual Report on Form 10-K for
the year ended January 2, 1994 and in the Registration
Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the
information required by the Securities Act or Exchange
Act, as the case may be, with respect to such legal
matters, documents or proceedings as of the respective
dates of such statements; and
(xi) the Joint Venture Agreement has been duly
authorized, executed and delivered by Cone Mexico and is
a valid and binding agreement of Cone Mexico, (A)
subject to applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and
similar laws affecting creditors' rights and remedies
generally, and (B) subject to general principles of
equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law
or in equity).
Such counsel shall state that he has no reason to
believe that (a) any part of the registration statement
(including the documents incorporated by reference
therein) (except for the financial statements included
therein as to which such counsel need express no belief)
filed with the Commission pursuant to the Securities Act
relating to the Securities, when such part was filed or
became effective, contained any untrue statement of a
material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, (b) the Registration
Statement and any amendment thereto (except for the
financial statements included therein as to which such
counsel need express no belief), on the date of this
Agreement, contained any untrue statement of a material
fact or omitted to state any material fact required to
be stated therein or necessary to make the statements
therein not misleading, or (c) the Prospectus, as
amended or supplemented, if applicable (except for the
financial statements included therein as to which such
counsel need express no belief), as of its date, on the
date of this Agreement and the date of such opinion,
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
the light of the circumstances under which they were
made, not misleading.
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<PAGE>
In rendering such opinions, such counsel may rely
(A) as to matters involving the application of laws
other than the laws of the United States and the State
of North Carolina, to the extent such counsel deems
proper and to the extent specified in such opinion, if
at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters'
counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable
laws; (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible
officers of the Company and certificates or other
written statements of officials of jurisdictions having
custody of documents respecting the corporate existence
or good standing of the Company. The opinion of such
counsel for the Company shall state that the opinion of
any such other counsel is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters
and they are justified in relying thereon. With respect
to the matters to be covered in the immediately
preceding paragraph counsel may state his opinion and
belief is based upon his participation in the
preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto and
review and discussion of the contents thereof but is
without independent check or verification except as
specified.
(g) Schell Bray Aycock Abel & Livingston, L.L.P.,
counsel for the Company, shall have furnished to you
their written opinion, dated the Closing Date, in form
and substance reasonably satisfactory to you, to the
effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with the
corporate power and authority to own or lease its
properties and conduct its business as described in the
Prospectus as then amended or supplemented;
(ii) each of the Company's subsidiaries (other than
the Joint Venture and Cone Mexico) has been duly
incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with
the corporate power and authority to own or lease its
properties and conduct its business as described in the
Prospectus, as then amended or suplemented; and all of
the issued shares of capital stock of each subsidiary
(other than the Joint Venture, Cone Mexico and Cliffside
Railroad Company) and, with respect to Cliffside
Railroad Company, all of the issued shares of stock
beneficially owned by the Company, have been duly
authorized and validly issued, are fully paid and
non-assessable, and (other than as set forth or
contemplated in the Prospectus and except in the case of
foreign subsidiaries, for directors' qualifying shares)
are owned directly or indirectly by the Company, free
and clear of any perfected security interests or, to the
best knowledge of such counsel,
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<PAGE>
any other security interests, liens, encumbrances,
equities or claims;
(iii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental
proceedings pending or, to the best of such counsel's
knowledge, threatened to which the Company or any of the
its subsidiaries is or may be a party, or to which any
property of the Company or its subsidiaries is or may be
the subject, that are required to be described in the
Registration Statement or the Prospectus; to the best of
such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities
or threatened by others; and such counsel does not know
of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the
Registration Statement or the Prospectus which are not
filed or described as required;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, (A) subject to
applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws
affecting creditors' rights and remedies generally,
(B) subject to general principles of equity, including
principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is
sought in a proceeding at law or in equity) and
(C) except as rights to indemnity and contribution
hereunder may be limited by applicable law;
(v) the Securities have been duly authorized,
executed and delivered by the Company and, when duly
authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this
Agreement, will constitute valid and binding obligations
of the Company entitled to the benefits provided by the
Indenture, (A) subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws affecting creditors' rights
and remedies generally and (B) subject to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law
or in equity);
(vi) the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a
valid and binding instrument of the Company, (A) subject
to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and
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<PAGE>
similar laws affecting creditors' rights and remedies
generally and (B) subject to general principles of
equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law
or in equity); and the Indenture has been duly qualified
under the Trust Indenture Act;
(vii) the issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement 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, any indenture, mortgage,
deed of trust, loan agreement or other material
agreement or instrument which is required to be filed
as an exhibit to the Registration Statement or any
document incorporated by reference therein and which is
known to such counsel (such counsel acknowledges that,
for purposes of this opinion, all documents so filed are
known to such counsel) to which the Company
or any of it 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, nor will any such action
result in any violation of the provisions of the
Articles of Incorporation or Bylaws or other
organizational documents of the Company or any of its
subsidiaries or any applicable law, statute, rule or
regulation or any order, judgment or decree known to
such counsel of any court or governmental agency or body
having jurisdiction over the Company, its subsidiaries
or any of their respective properties;
(viii) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue
and sale of the Securities or the consummation of the
related transactions contemplated by this Agreement or
the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have
been obtained under the Securities Act and the Trust
Indenture Act and as may be required under state
securities or Blue sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(ix) the statements in the Prospectus under "Legal
Proceedings" and "Description of Debt Securities" in the
Prospectus or incorporated by reference from Item 3 of
Part 1 of the Company's Annual Report on Form 10-K for
the year ended January 2, 1994 and in the Registration
Statement in Item 15, insofar as such statements
constitute a summary of the legal matters,
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<PAGE>
documents or proceedings referred to therein, fairly
present the information called for with respect to such
legal matters, documents or proceedings as of the
respective dates of such statements;
(x) the conditions for use of a Registration
Statement on Form S-3 set forth in the General
Instructions to Form S-3 have been satisfied with
respect to the Company and the transactions contemplated
by this Agreement and the Registration Statement;
(xi) to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that
purpose has been instituted or threatened by the
Commission; and
(xii) each document incorporated by reference in the
Registration Statement and the Prospectus (except for
the financial statements included therein as to which
such counsel need express no opinion) complied as to
form when filed with Commission in all material respects
with the Exchange Act, and the Registration Statement
and the Prospectus and any amendments and supplements
thereto (except for the financial statements included
therein as to which such counsel need express no
opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Trust
Indenture Act.
Such counsel shall state that they have no reason to believe
that (a) any part of the registration statement (including the
documents incorporated by reference therein) (except for the
financial statements included therein as to which such counsel
need express no belief) filed with the Commission pursuant to the
Securities Act relating to the Securities, when such part was
filed or became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, (b) the Registration Statement and any amendment
thereto (except for the financial statements included therein as
to which such counsel need express no belief), on the date of
this Agreement, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, or (c) the Prospectus, as amended or supplemented, if
applicable (except for the financial statements included therein
as to which such counsel need express no belief), as of its date,
on the date of this Agreement and the date of such opinion,
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 the light of the circumstances
under which they were made, not misleading.
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<PAGE>
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of
the United States and the State of North Carolina, to the extent
such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; (B) as to matters of fact, to
the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having custody
of documents respecting the corporate existence or good standing
of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With
respect to the matters to be covered in the preceding paragraph
counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement
and the Prospectus and any amendment or supplement thereto and
review and discussion of the contents thereof but is without
independent check or verification except as specified.
(h) on the Closing Date, McGladrey & Pullen, LLP shall
have furnished to you letters, dated such date, in form and
substance satisfactory to you, containing statements and
information of the type customarily included in accountants
"comfort letters" to underwriters with respect to the
financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(i) you shall have received on and as of the Closing
Date an opinion of King & Spalding, counsel to the
Underwriters, with respect to the validity of the Indenture
and the Securities, the Registration Statement, the
Prospectus 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;
(j) on or prior to the Closing Date, the Company shall
have furnished to the Representatives such further
certificates and documents as the Representatives shall
reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses reasonably incurred
in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration
-19-
<PAGE>
Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use therein; provided, that the
foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities
purchased Securities if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) and, if required by law, a
copy of the Prospectus (as so amended or supplemented) shall not
have been furnished to such person at or prior to the written
confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person who
controls the Company within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such
person (the "Indemnified Person") shall promptly notify the
person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses
of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably
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<PAGE>
satisfactory to the Indemnified Person or (iii) the named parties
in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of
Underwriters shall be designated in writing by the first of the
named Representatives on Schedule I hereto and any such separate
firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company or
authorized representatives shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to
reimburse the Indemnified Person for fees and expenses of counsel
as contemplated by the third sentence of this paragraph, the
Indemnifying Person 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 Person of the
aforesaid request and (ii) such Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying
Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified
Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person there-
under, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities (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 hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
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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 respective proportions as the net proceeds from
the offering of such Securities (before deducting expenses)
received by the Company and the total underwriting discounts and
the commissions received by the Underwriters bear to the
aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the
other 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 by the
Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as
a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any
reasonable legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section
7, in no event shall an Underwriter be required to contribute any
amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that
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 Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of the Securities
set forth opposite their names in Schedule I hereto, and not
joint.
The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to
above.
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The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company
set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other
person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the
Representatives, by notice given to the Company, if after the
execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, the New York
Stock Exchange, (ii) trading of any securities of or guaranteed
by the Company shall have been suspended on the New York Stock
Exchange, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal
or New York State authorities, or (iv) there shall have occurred
any outbreak or escalation of hostilities between the United
States and a foreign power or any change in financial markets or
any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, in the
judgment of the Representatives, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the
Prospectus.
9. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Securities which it
or they have agreed to purchase under this Agreement, and the
aggregate principal amount of Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal
amount of the Securities, the other Underwriters shall be
obligated severally in the proportions that the principal amount
of Securities set forth opposite their respective names in
Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which
such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall
the principal amount of Securities that any Underwriter has
agreed to purchase pursuant to Section 1 be increased pursuant to
this Section 9 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which
such default occurs is more than one-tenth of the aggregate
principal amount of Securities to be purchased, and arrangements
satisfactory to you and the Company for the purchase of such
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<PAGE>
Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case
either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven business
days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter
under this Agreement.
10. If this Agreement shall be terminated by the
Underwriters (other than termination pursuant to Section 8(i),
8(iii) or 8(iv)), or any of them, because of any failure or
refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations
under this Agreement or any condition of the Underwriters'
obligations cannot be fulfilled, the Company agrees to reimburse
the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and
expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be
binding upon the Company, the Underwriters, any controlling
persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by
you jointly or by the first of the named Representatives set
forth in Schedule I hereto alone on behalf of the Underwriters,
and any such action taken by you jointly or by the first of the
named Representatives set forth in Schedule I hereto alone shall
be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be
given at the address set forth in Schedule II hereto. Notices to
the Company shall be given to it at 1201 Maple Street,
Greensboro, North Carolina 27405; Attention: Chief Financial
Officer.
13. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be
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<PAGE>
governed by and construed in accordance with the laws of the
State of New York, without giving effect to the conflicts of laws
provisions thereof.
Very truly yours,
CONE MILLS CORPORATION
By:_____________________
Name:
Title:
Accepted: __________, 199_
[Insert name of lead manager
and co-managers]
Acting severally on behalf of
themselves and the several
Underwriters listed in Schedule II
hereto.
By: [Insert name of lead manager]
By: ___________________________
Name:
Title:
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<PAGE>
SCHEDULE I
Representatives: _______________________________________
Underwriting Agreement
dated: _______________________________________
Registration Statement
No.: _______________________________________
Title of Securities: _______________________________________
Aggregate principal
amount: $______________________________________
Price to Public: ___% of the principal amount of the
Securities, plus accrued interest, if
any, from ______, 19__ to the Closing
Date.
Purchase Price by
Underwriters: _______________________________________
Indenture: Indenture dated as of _______________
between the Company and ____________ as
Trustee.
Maturity: ________________________________________
Interest Rate: ________________________________________
Interest Payment
Dates: ________________________________________
Optional Redemption
Provisions: ________________________________________
Sinking Fund Provisions: _______________________________________
Other Provisions: ________________________________________
Closing Date and
Time of Delivery: ________________________________________
Closing location: ________________________________________
Address for Notices
to Underwriters: ________________________________________
-26-
<PAGE>
SCHEDULE II
Principal Amount
of Securities
To Be Purchased
Underwriter
[Name(s) of Representatives].......... $
[Name(s) of Underwriters]............. $
Total....................... $___________
-27
<PAGE>
[Form of Face of Debenture]
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to the Company or its agent
for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an
authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has
an interest herein.
Unless and until it is exchanged in whole or in part for
Debentures in definitive registered form, this Debenture
may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another
Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor
Depositary.
No. $100,000,000
CUSIP:
CONE MILL CORPORATION
% _____ Debentures Due ______, 2005
Cone Mills Corporation, a corporation duly
organized and existing under the laws of North Carolina
(herein called the "Company", which term includes any
successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay
to Cede & Co. or registered assigns, the principal
sum of ONE HUNDRED MILLION DOLLARS on March __, 2005,
and to pay interest thereon semiannually on March __ and
September ___ of each year (each, an "Interest Payment
Date"), commencing September __, 1995, at the rate per
annum specified in the title of this Debenture, from
_____________ or the most recent Interest Payment
Date to which interest has been paid or duly provided
for, or if no interest has been paid or duly provided
for on this Debenture, from _________________, until
payment of said principal sum has been made or duly
provided for. The interest so payable on any
Interest Payment Date will, subject to certain
exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the Person in whose name this
Debenture is registered at the close of business on the
March __ or September __, as the case may be, next
preceding such Interest Payment Date.
<PAGE>
Payment of the principal of and interest on this
Debenture will be made at the office or agency of the
Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time
of payment is legal tender for payment of public and
private debts; provided, however, that at the option of
the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as
such address shall appear in the Security register.
Reference is hereby made to the further provisions
of this Debenture set forth on the reverse hereof. Such
further provisions shall for all purposes have the same
effect as if fully set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse
hereof by manual signature, this Debenture shall not be
entitled to any benefit under the Indenture or be valid
or become obligatory for any purpose.
IN WITNESS WHEREOF, Cone Mills Corporation has
caused this instrument to be duly executed under its
corporate seal.
Dated:
CONE MILLS CORPORATION
By:________________________
Attest:
_____________________________
TRUSTEE'S CERTIFICATION OF AUTHENTICATION
This is one of the Securities of the series
designated herein and referred to in the
within-mentioned Indenture.
WACHOVIA BANK OF NORTH
CAROLINA, N.A. as Trustee
By:___________________________
Authorized Signatory
-2-
<PAGE>
[Form of Reverse of Debenture]
CONE MILLS CORPORATION
__% Debentures Due ____________ 2005
This Debenture is one of a duly authorized issue of
debentures, notes, and/or other unsecured evidences of
indebtedness of the Company (herein called the
"Securities") of the series hereinafter defined, issued
or to be issued in one or more series under an
Indenture, dated as of February 14, 1995 (herein called
the "Indenture"), between the Company and Wachovia
Bank of North Carolina, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made
for a description of the respective rights, limitations
of rights, obligations, duties and immunities thereunder
of the Company, the Trustee and the Holders of the
Securities. The Securities may be issued in one
or more series, which different series may be issued in
various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase
or analogous funds (if any) and may otherwise vary as in
the Indenture provided. This Debenture is one of a
series designated as the __% Debentures Due ____________
2005 of the Company (the "Debentures").
If an Event of Default with respect to the
Debentures shall occur and be continuing, the principal
of the Debentures may be declared due and payable, in
the manner and with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for defeasance at
any time of the entire indebtedness of this Debenture or
certain restrictive covenants with respect to this
Debenture, in each case upon compliance by the Company
with certain conditions set forth therein.
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the Holders
of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding (as
defined in the Indenture) of all series to be affected
(voting as one class), evidenced as in the Indenture
provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the
right of the Holders of the Securities of each such
series; provided, that no such supplemental indenture
shall (i) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate
or extend the time of payment of any interest thereon,
or reduce any amount payable on redemption thereof or
make the principal thereof (including any
<PAGE>
amount in respect of original issue discount) or interest thereon
payable in any coin or currency other than that provided
in the Securities or in accordance with the terms
thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof, or
impair or affect the right of any Holder to institute
suit for the payment thereof, any right of repayment at
the option of the Holder, in each case without the
consent of the Holder of each Security so affected, or
(ii) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which
is required for any such supplemental indenture, without
the consent of the Holder of each Security so affected.
It is also provided in the Indenture that, with respect
to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration of
the acceleration of the maturity of such Securities, the
Holders of a majority in aggregate principal amount of
the Securities of such series Outstanding (or, in the
case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or
certain series of the Securities, as the case may be)
waive any such past default or Event of Default and its
consequences. The preceding sentence shall not,
however, apply to a default in the payment of the
principal of or interest on any of the Securities. Any
such consent or waiver by the Holder of this Debenture
(unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and any
Debentures which may be issued in exchange or
substitution herefor, irrespective of whether or not any
notation thereof is made upon this Debenture or such
other Debentures.
No reference herein to the Indenture and no
provision of this Debenture or of the Indenture shall
alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and
interest on this Debenture in the manner, at the
respective times, place and rate, and in the coin or
currency, herein prescribed.
The Debentures may not be redeemed prior to
maturity.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this
Debenture is registrable in the Security register upon
surrender of this Debenture for registration of transfer
at the office or agency of the Company in any place
where the principal of and interest on this Debenture
are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to
the Company and the Security registrar duly executed by,
the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of
this series and of like tenor, of authorized
denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
-2-
<PAGE>
The Debentures are issuable in registered form
without coupons in denominations of $1,000 and any
integral multiple thereof at the office or agency of the
Company in the Borough of Manhattan, The City of New
York, and in the manner and subject to the limitations
provided in the Indenture.
No service charge shall be made for any such
registration of transfer of exchange, but the Company
may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection
therewith.
The Company, the Trustee and any authorized agent
of the Company or the Trustee may deem and treat the
Person in whose name this Debenture is registered as the
owner hereof for all purposes, whether or not this
Security be overdue and notwithstanding any notation of
ownership or other writing hereon, for the purpose of
receiving payment of, or on account of, the principal
hereof and, subject to the provisions on the face
hereof, interest hereon, and for all other purposes, and
neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant
or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Debenture, or
because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, or any
past, present or future shareholder, officer or
director, as such, of the Company or of any successor
corporation, either directly or through the Company
or any successor corporation, under any rule of law,
statute or constitutional provision or by the
enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance
hereof and as part of the consideration for the issue
hereof.
All terms used in this Debenture which are defined
in the Indenture shall have the meanings assigned to
them in the Indenture.
-3-
<PAGE>
