Exhibit 1.1
Gabelli Asset Management Inc.
3,600,000 FELINE PRIDES
(Initially consisting of 3,600,000 Income PRIDES)
Purchase Agreement
January 31, 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Gabelli & Company, Inc.
As the Underwriters named herein,
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Gabelli Asset Management Inc., a New York corporation (the "Company"),
proposes to sell to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and Gabelli & Company, Inc. as underwriters
(collectively, the "Underwriters"), 3,600,000 FELINE PRIDES ("FELINE PRIDES")
of the Company (such 3,600,000 FELINE PRIDES being referred to herein as the
"Initial Securities"). The FELINE PRIDES will initially consist of 3,600,000
units (referred to as "Income PRIDES") with a stated amount, per Income
PRIDES, of $25 (the "Stated Amount"). Each Income PRIDES will initially
consist of (a) a stock purchase contract (a "Purchase Contract") under which
(i) the holder will agree to purchase from the Company on February 17, 2005
(the "Purchase Contract Settlement Date"), for an amount of cash equal to the
Stated Amount, a fraction of newly issued shares of class A common stock,
$.001 par value (the "Common Stock"), of the Company equal to the Settlement
Rate (as defined in the Purchase Contract Agreement referred to below) and
(ii) the Company will pay to the holder contract adjustment payments and (b)
$25 principal amount of the Company's senior notes due February 17, 2007 (a
"Note") issued pursuant to the Indenture (as defined below). The Company also
proposes to grant to the several Underwriters an option to purchase up to an
additional 200,000 Income PRIDES to cover any over-allotments (the "Option
Securities"; the Option Securities, together with the Initial Securities,
being hereinafter called the "Securities"). The Notes that will initially
constitute a component of the Income PRIDES are hereinafter sometimes referred
to as the "Underlying Notes".
In accordance with the terms of the Purchase Contract
Agreement, to be dated as of February 6, 2002 (the "Purchase Contract
Agreement"), between the Company and The Bank of New York, as purchase
contract agent (the "Purchase Contract Agent"), the Underlying Notes will be
pledged by the Purchase Contract Agent, on behalf of the holders of the Income
PRIDES, to JPMorgan Chase Bank, as collateral agent (the "Collateral Agent"),
pursuant to the Pledge Agreement, to be dated as of February 6, 2002 (the
"Pledge Agreement"), among the Company, the Purchase Contract Agent and the
Collateral Agent, to secure the holders' obligations to purchase the Common
Stock under the Purchase Contracts. The shares of Common Stock issuable
pursuant to the Purchase Contracts are hereinafter referred to as the
"Shares".
The Notes will be issued pursuant to the Indenture, to be
dated as of February 6, 2002 (the "Base Indenture"), between the Company and
The Bank of New York, as trustee (the "Trustee"), as amended and supplemented
by the First Supplemental Indenture to be dated as of February 6, 2002 (the
"First Supplemental Indenture"), between the Company and the Trustee (the Base
Indenture, as supplemented and amended by the First Supplemental Indenture,
being referred to as the "Indenture").
Pursuant to a Remarketing Agreement, to be dated as of
February 6, 2002 (the "Remarketing Agreement"), between the Company, the
Purchase Contract Agent and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as the remarketing agent, the Notes may be remarketed, subject
to certain terms and conditions.
As used in this Agreement, the term "Operative Documents"
means this Agreement, the Purchase Contract Agreement (including the Purchase
Contracts), the Pledge Agreement, the Remarketing Agreement, the Notes, the
Indenture and the certificates evidencing Income PRIDES.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-74676) covering the registration of certain securities, including the
Securities, the Purchase Contracts, the Underlying Notes and the Shares, under
the Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"). Such registration
statement was declared effective by the Commission on December 28, 2001 and
the Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a final prospectus and
final prospectus supplement in accordance with the provisions of paragraph (b)
of Rule 424 of the rules and regulations of the Commission or (ii) if the
Company has elected to rely upon Rule 434 of the 1933 Act Regulations, prepare
and file a term sheet or abbreviated term sheet (the "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). The aforementioned
registration statement (as amended prior to the execution and delivery of this
Agreement), including the exhibits thereto, schedules thereto, if any, and the
information, if any, deemed to be a part thereof pursuant to Rule 430A of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434 of the 1933 Act
Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration Statement;" and the final prospectus and the final prospectus
supplement relating to the offering of the Securities, in the form furnished
to the Underwriters by the Company for use in connection with the offering of
the Securities, are collectively referred to herein as the "Final Prospectus";
provided, however, that all references to the "Registration Statement" and the
"Final Prospectus" shall also be deemed to include all documents incorporated
therein by reference pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), prior to the execution and delivery of this
Agreement; and provided, further, that if the Company files a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then after such
filing, all references to "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the Registration
Statement became effective and any prospectus that omitted information to be
included upon pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations and was used after the
effectiveness of the Registration Statement but prior to the execution and
delivery of this Agreement. If the Company elects to rely upon Rule 434 of the
1933 Act Regulations, then all references to the "Final Prospectus" shall also
be deemed to include the final or preliminary prospectus and the applicable
Term Sheet in the form first furnished to the Underwriters by the Company in
reliance upon Rule 434 of the 1933 Act Regulations, and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or any amendment
or supplement to any of the foregoing shall be deemed to include any copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and
schedules and other information that is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Final Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information that is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Final Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Final Prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act that is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Final Prospectus, as the case may be.
SECTION 1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with, each Underwriter as of the date
hereof, as of the Closing Time and as of each Date of Delivery (if any)
referred to below, as follows:
(a) The Company meets the requirements for the use of Form S-3 under the
1933 Act. The Registration Statement (including any Rule 462(b)
Registration Statement) has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement (or such Rule 462(b) Registration Statement) has been
issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company,
are contemplated by the Commission, and the Company has complied with
any request by the Commission for additional information. In
addition, the Indenture has been duly qualified under the 1939 Act.
At the respective times that the Registration
Statement, any Rule 462(b) Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time (and, if any Option Securities are purchased, at the Date of
Delivery), the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and
will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and did not and will not
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. Neither the Final Prospectus nor
any amendments or supplements thereto, at the time the Final
Prospectus or any such amendment or supplement was issued and at the
Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit 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. The
representations and warranties in this subsection shall not apply to
(i) statements in or omissions from the Registration Statement or
Final Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
expressly for use in the Registration Statement or Final Prospectus
or (ii) that part of the Registration Statement which shall
constitute the Statement of Eligibility (Form T-1) under the 1939 Act
of the Trustee.
Each preliminary prospectus and the prospectus
filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects with
the 1933 Act Regulations and each preliminary prospectus and the
Final Prospectus delivered to the Underwriters for use in connection
with the offering of the Securities will, at the time of such
delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(b) The documents incorporated or deemed to be incorporated by reference
in the Registration Statement and the Final Prospectus, at the time
they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder
(the "1934 Act Regulations"), and, when read together with the other
information in the Final Prospectus, at the time the Registration
Statement became effective, at the time the Final Prospectus was
issued and at the Closing Time (and if any Option Securities are
purchased, at the Date of Delivery), did not and will not 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.
(c) Ernst & Young LLP, the accountants who certified the financial
statements and supporting schedules included in the Registration
Statement, are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(d) The financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows
of the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved (except as indicated
therein or in the notes thereto) and meet the requirements of
Regulation S-X for registration statements on Form S-3. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Final Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as otherwise
stated therein, (i) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (ii) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(f) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of New York
and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Final
Prospectus and to enter into and perform its obligations under, and
as contemplated under, the Operative Documents; and the Company is
duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(g) Each "significant subsidiary" of the Company (as such term is defined
in Rule 1-02 of Regulation S-X), including those listed on Schedule
III hereto, (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Final Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and none of the outstanding shares of capital stock
of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are (i) the subsidiaries listed on
Schedule III hereto and (ii) certain other subsidiaries which,
considered in the aggregate as a single Subsidiary, do not constitute
a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(h) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Final Prospectus. The capital stock of the
Company conforms in all material respects to the description thereof
contained in the Final Prospectus. The shares of issued and
outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) The Remarketing Agreement has been duly authorized by the Company and
when executed and delivered by the Company will constitute the valid
and binding obligation of the Company enforceable in accordance with
its terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and except as rights
to indemnification, contribution or exculpation thereunder may not be
enforceable, and will conform in all material respects to the
description thereof in the Final Prospectus.
(k) Each of the Purchase Contract Agreement, the Pledge Agreement and the
Indenture has been duly authorized by the Company and when executed
and delivered by the Company will constitute the valid and binding
obligation of the Company enforceable in accordance with its terms,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity), and will conform in all material respects to
the descriptions thereof in the Final Prospectus.
(l) The Notes have been duly authorized by the Company and, at the
Closing Time, will have been validly executed by the Company and,
when authenticated, issued and delivered in the manner provided for
in the Indenture and delivered against payment for the Income PRIDES
of which they are a part in accordance with the terms of this
Agreement and the Indenture, will be entitled to the benefits of the
Indenture and constitute valid and binding obligations of the
Company, except to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity), and will conform in all material respects to
the description thereof in the Final Prospectus.
(m) The Income PRIDES have been duly authorized by the Company and, when
executed and delivered by the Company against payment of the
consideration therefor in accordance with the terms of this Agreement
will constitute the valid and binding obligations of the Company
enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity), and will conform in all material respects to the description
thereof in the Final Prospectus. The Income PRIDES and the Shares
will be duly registered under the 1934 Act and will be authorized for
listing on the New York Stock Exchange, in each case, prior to the
Closing Time; and the issuance of the Income PRIDES is not subject to
preemptive or other similar rights.
(n) The Shares issuable pursuant to the Purchase Contract Agreement have
been duly authorized and reserved for issuance by the Company and,
when issued and delivered in accordance with the provisions of the
Purchase Contract Agreement, will be validly issued and fully paid
and non-assessable; and the issuance of such Shares is not and will
not be subject to preemptive or other similar rights.
(o) 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 Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(p) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease 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 may be bound, or to which any of the property or assets of
the Company or any subsidiary is subject (collectively, "Agreements
and Instruments"), except for such defaults that would not result in
a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the other Operative Documents and
the consummation of the transactions contemplated in this Agreement
and the other Operative Documents and in the Registration Statement
(including the issuance and sale of the Securities pursuant hereto
and the use of the proceeds from the sale of the Securities as
described in the Final Prospectus under the caption "Use of Proceeds"
and the issuance and sale of the Shares pursuant to the Purchase
Contracts) and compliance by the Company with its obligations under
this Agreement and the other Operative Documents have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements
and Instruments (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiary
or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or
any subsidiary or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any subsidiary.
(q) There is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which
is required to be disclosed in the Registration Statement (other than
as disclosed therein), or which might, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect, or which might, individually or in the aggregate, reasonably
be expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions contemplated
in this Agreement and the other Operative Documents or the
performance by the Company of its obligations hereunder or
thereunder.
(r) There are no contracts or documents that are required to be described
in the Registration Statement, the Final Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required. The
descriptions of the terms of any such contracts or documents
contained in the Registration Statement or the Final Prospectus are
correct in all material respects.
(s) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them,
and neither the Company nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property
or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company
or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(t) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by
the Company of its obligations under this Agreement and the other
Operative Documents, in connection with the offering, issuance or
sale of the Securities under this Agreement and the issuance and sale
of the Shares pursuant to the Purchase Contracts or the consummation
of the transactions contemplated by this Agreement and the other
Operative Documents, except such as have been already obtained or as
may be required under the 1933 Act or the 1933 Act Regulations and
foreign or state securities or blue sky laws.
(u) The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them; the Company and its subsidiaries
are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all
of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(v) Each of the Company and its subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in
which it is engaged; and neither the Company nor any of its
subsidiaries has any reason to believe that it or they will not be
able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not
have a Material Adverse Effect.
(w) Each of Gabelli Funds, L.L.C., GAMCO Investors, Inc., Gabelli Fixed
Income, L.L.C. and Gabelli Advisers, Inc. (each an "Adviser" and,
collectively, the "Advisers") is duly registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), and none of the Advisers is prohibited by any
provision of the Advisers Act or the Investment Company Act, or the
respective rules and regulations thereunder, from acting as an
investment adviser. The Advisers are the only direct or indirect
subsidiaries of the Company required to be registered as investment
advisers under the Advisers Act.
(x) Neither the Company nor any of its direct or indirect subsidiaries,
including the Advisers, is required to be registered, licensed or
qualified as an investment adviser under the laws requiring any such
registration, licensing or qualification in any state in which it or
its subsidiaries conduct business or is not subject to material
liability or disability by reason of the failure to be so registered,
licensed or qualified.
(y) Each of Gabelli & Company, Inc., Gabelli Fixed Income Distributors,
Inc. and Gabelli Direct Inc. is duly registered as a broker-dealer
under the Exchange Act and under the securities laws of each state
where the conduct of its business requires such registration and is
in compliance in all material respects with all federal and state
laws requiring such registration, or is not subject to material
liability or disability by reason of the failure to be so registered
in any such jurisdiction or to be in such compliance in all material
respects. Each of Gabelli & Company, Inc., Gabelli Fixed Income
Distributors, Inc. and Gabelli Direct Inc. is a member in good
standing of the National Association of Securities Dealers, Inc. (the
"NASD"). None of the Company's other direct or indirect subsidiaries
is required to be registered, licensed or qualified as a
broker-dealer under any federal law or any state laws requiring any
such registration, licensing or qualification in any state in which
it conducts business or is subject to any material liability or
disability by reason of the failure to be so registered, licensed or
qualified.
(z) None of the Company's direct or indirect subsidiaries is required to
be registered, licensed or qualified as a transfer agent under the
federal or state laws requiring any such registration, licensing or
qualification in any state in which it conducts business or is
subject to any material liability or disability by reason of the
failure to be so registered, licensed or qualified.
(aa) Each of the Company, Gabelli Funds, L.L.C., GAMCO Investors, Inc.,
Gabelli Fixed Income L.L.C., Gabelli Advisers, Inc., Gabelli Fixed
Income Distributors, Inc. and Gabelli Direct Inc., Gabelli
Securities, Inc. and Gabelli & Company, Inc. is and has been in
compliance with, and each such entity has or will have had, as the
case may be, received no notice of any violation of, (i) all laws,
regulations, ordinances and rules (including those of any
non-governmental self-regulatory agencies) applicable to it or its
operations relating to investment advisory or broker-dealer
activities and (ii) all other such laws, regulations, ordinances and
rules applicable to it and its operations, except, in either case,
where any failure by the Company, Gabelli Funds, L.L.C., GAMCO
Investors, Inc., Gabelli Fixed Income L.L.C., Gabelli Advisers, Inc.,
Gabelli Fixed Income Distributors, Inc. and Gabelli Direct Inc.,
Gabelli Securities, Inc. and Gabelli & Company, Inc. to comply with
any such law, regulation, ordinance or rule would not have,
individually or in the aggregate, a Material Adverse Effect.
(bb) Each entity (each, a "Fund") for which either Gabelli Funds, L.L.C.
or Gabelli Advisers, Inc. acts as investment adviser and which is
required to be registered with the Commission as an investment
company under the Investment Company Act is, and upon consummation of
the transactions contemplated herein will be, duly registered with
the Commission as an investment company under the Investment Company
Act; and to the knowledge of the Company, each Fund has been operated
in compliance in all material respects with the Investment Company
Act and the rules and regulations thereunder; and, to the knowledge
of the Company, there are no facts with respect to any such Fund that
are likely to result in a Material Adverse Effect.
(cc) To the knowledge of the Company, none of the Company, Gabelli Funds,
L.L.C., GAMCO Investors, Inc., Gabelli Fixed Income, Inc., Gabelli
Fixed Income, L.L.C., Gabelli Securities, Inc., Gabelli Fixed Income
Distributors, Inc. and Gabelli Direct Inc., Gabelli & Company, Inc.
and Gabelli Advisers, Inc. or any other subsidiary of the Company is
in breach or violation of or in default under any agreement between
the Company, Gabelli Funds, L.L.C., GAMCO Investors, Inc., Gabelli
Fixed Income, Inc., Gabelli Fixed Income, L.L.C., Gabelli Securities,
Inc., Gabelli Fixed Income Distributors, Inc. and Gabelli Direct
Inc., Gabelli & Company, Inc. and Gabelli Advisers, Inc. or any other
subsidiary of the Company on the one hand and any Fund or private
client on the other hand, which would, individually or in the
aggregate, have a Material Adverse Effect.
(dd) The offering of the Securities will not constitute an "assignment" as
defined in the Investment Company Act and the Advisers Act of any of
the investment advisory contracts to which any of the Advisers is a
party.
Any certificate signed by any officer of the Company
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per
Security set forth in Schedule II, the number of Initial Securities
set forth in Schedule I opposite the name of such Underwriter, plus
any purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to
the Underwriters, severally and not jointly, to purchase up to an
additional 200,000 FELINE PRIDES at the price per Security set forth
in Schedule II. The option hereby granted will expire 13 days after
the date on which the Initial Securities are issued and may be
exercised in whole or in part from time to time only for the purpose
of covering any over-allotments which may be made in connection with
the offering and distribution of the Initial Securities upon notice
by the Underwriters to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising
the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Underwriters, but shall not be
later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter
defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial
Securities set forth in Schedule I opposite the name of such
Underwriter bears to the total number of Initial Securities, subject
in each case to such adjustments as the Underwriters in their
discretion shall make to eliminate any sales or purchases of
fractional securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices
of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or
at such other place as shall be agreed upon by the Underwriters and
the Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such
other place as shall be agreed upon by the Underwriters and the
Company, on each Date of Delivery as specified in the notice from the
Underwriters to the Company.
Payment shall be made to the Company by wire
transfer of immediately available funds to a bank account designated
by the Company, against delivery to the Underwriters of certificates
for the Securities to be purchased by them. It is understood that
each Underwriter has authorized Xxxxxxx Xxxxx, for its account, to
accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any,
which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not
as representative of the Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Initial
Securities or the Option Securities, if any, to be purchased by an
Underwriter whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and
registered in such names as the Underwriters may request in writing
at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for
the Initial Securities and the Option Securities, if any, will be
made available for examination and packaging by the Underwriters in
The City of New York not later than 10:00 A.M. (Eastern time) on the
business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
(e) Appointment of Qualified Independent Underwriter. The Company hereby
confirms its engagement of Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx hereby
confirms its agreement with the Company to render services, as a
"qualified independent underwriter" within the meaning of Rule 2720
of the Conduct Rules of the NASD with respect to the offering and
sale of the Securities. Xxxxxxx Xxxxx, solely in its capacity as
qualified independent underwriter and not otherwise, is referred to
herein as the "Independent Underwriter".
SECTION 3. Covenants of the Company. The Company agrees with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements
of Rule 415, Rule 430A or Rule 434, as applicable, and will notify
the Underwriters immediately, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Final Prospectus or any
amended Final Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Final Prospectus or for additional
information and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by
the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Underwriters notice
of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or
any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became
effective or to the Final Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Underwriters with
copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and, at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, will not file or use any
such document to which the Underwriters or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriters and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will
also deliver to the Underwriters, without charge, a conformed copy of
the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies
of the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will furnish to each
Underwriter, without charge, during the period when the Final
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Final Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Final
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and
in the Final Prospectus. If at any time when a prospectus is required
by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement
or amend or supplement the Final Prospectus in order that the Final
Prospectus will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall
be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Final
Prospectus in order to comply with the requirements of the 1933 Act
or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission
or to make the Registration Statement or the Final Prospectus comply
with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions (domestic or foreign) as the Underwriters may
designate and to maintain such qualifications in effect for a period
of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may
be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Final
Prospectus under "Use of Proceeds".
(i) Rating of Securities. The Company shall take all reasonable action
necessary to enable Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc. ("S&P") to provide its credit rating of the
Securities.
(j) Listing. The Company will use its best efforts to effect the listing
of the Income PRIDES and the Shares on the New York Stock Exchange.
(k) Restriction on Sale of Securities. During a period of 90 days from
the date of the Final Prospectus, the Company will not, without the
prior written consent of the Underwriters, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of any Securities, Purchase Contracts, Common Stock or any
security of the Company similar to Securities, Purchase Contracts or
Common Stock or any security convertible into or exercisable or
exchangeable for or repayable with Securities, Purchase Contracts,
Common Stock or any equity securities substantially similar to the
Securities, Purchase Contracts or Common Stock or file any
registration statement under the 1933 Act with respect to any of the
foregoing; or (ii) directly or indirectly, enter into any swap or any
other agreement or any transaction that transfers, in whole or in
part, the economic consequence of ownership of the Securities,
Purchase Contracts or Common Stock or any security convertible into
or exercisable or exchangeable for or repayable with the Securities,
Purchase Contracts, Common Stock or any equity securities
substantially similar to the Securities, Purchase Contracts or Common
Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Securities, Purchase
Contracts, Common Stock or such other securities, in case or
otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof and
referred to in the Final Prospectus, (C) any shares of Common Stock
issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company referred to in the
Final Prospectus, (D) any shares of Common Stock issued pursuant to
any non-employee director stock plan or dividend reinvestment plan or
(E) the Company's obligations to file any registration statement
under the 1933 Act existing on the date hereof.
(l) Reporting Requirements. The Company, during the period when the Final
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(m) Stabilization Efforts. The Company will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result, under the 1934 Act
or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(n) Reservation of Common Stock. The Company will reserve and keep
available at all times, free of preemptive or other similar rights
and liens and adverse claims, a sufficient number of shares of Common
Stock to satisfy its obligations to issue Shares upon settlement of
the Purchase Contracts.
SECTION 4. Payment of Expenses. (a) Expenses. The Company agrees to pay all
costs and expenses relating to the following matters: (i) the preparation,
printing or reproduction and filing of the Registration Statement (including
financial statements and exhibits), each preliminary prospectus, the Final
Prospectus and each amendment or supplement to any of them, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates
for the Securities to the Underwriters, including any stock or other transfer
taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(e) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, the Final Prospectus
and any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the Securities, (ix) the filing fees incident to, and the fees
and disbursements of the Company's counsel in connection with, the review by
the NASD of the terms of the sale of the Securities, (x) the fees and expenses
incurred in connection with the registration of the Securities under the 1934
Act and the listing of the Securities on the New York Stock Exchange, (xi) the
cost of printing the Indenture and certificates representing the Notes, (xii)
the cost and charges of the Trustee, the Purchase Contract Agent, the
Collateral Agent and any other fiduciary agents, (xiii) any fees payable to
rating agencies in connection with the rating of the Securities, (xiv) all
other costs and expenses incident to the performance by the Company of its
obligations hereunder and (xv) the fees and expenses of the Independent
Underwriter.
(b) Termination of Agreement. If this Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5
or Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained herein as of the date
of this Agreement, the Closing Date and any Date of Delivery pursuant to
Section 2 hereof, or in certificates of any officer of the Company delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) At the Closing Time, the Securities shall be rated at least BBB by
S&P and the Company shall have delivered to the Underwriters a letter
dated the Closing Time, from such rating agency, or other evidence
satisfactory to the Underwriters, confirming that the Securities have
been assigned such rating; and since the date of this Agreement,
there shall not have occurred any downgrading in the rating assigned
to the Securities or any of the Company's other debt securities by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the 0000 Xxx) and no such
organization shall have publicly announced that it has under
surveillance a review of its rating of the Securities or any of the
Company's other debt securities.
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company,
shall have furnished to the Underwriters their opinion, dated the
Closing Date and addressed to the Underwriters, in form and substance
satisfactory to counsel for the Underwriters, to the effect set forth
in Exhibit A hereto.
(c) The Company shall have furnished to the Underwriters the opinion of
Xxxxx X. XxXxx, Vice President and General Counsel of the Company,
dated the Closing Date and addressed to the Underwriters, in form and
substance satisfactory to counsel for the Underwriters, to the effect
set forth in Exhibit B hereto.
(d) The Underwriters shall have received from Shearman & Sterling,
counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Underwriters, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Final Prospectus (together with any supplement thereto), the
Operative Documents and other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(e) The Underwriters shall have received from counsel for The Bank of New
York, as Purchase Contract Agent, such opinion or opinions, dated the
Closing Date and addressed to the Underwriters, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Bank of New York is duly incorporated and is validly
existing as a banking corporation with trust powers under
the laws of the United States with all necessary power and
authority to execute, deliver and perform its obligations
under the Purchase Contract Agreement and the Pledge
Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement, and the authentication and delivery of the
Securities, have been duly authorized by all necessary
corporate action on the part of the Purchase Contract Agent.
The Purchase Contract Agreement and the Pledge Agreement
have been duly executed and delivered by the Purchase
Contract Agent, and constitute the legal, valid and binding
obligations of the Purchase Contract Agent, enforceable
against the Purchase Contract Agent in accordance with its
terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now
or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding at
law or in equity).
(iii) the execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase
Contract Agent does not conflict with or constitute a breach
of the charter or by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or registration
with or notice to, any New York or federal governmental
authority or agency is required for the execution, delivery
or performance by the Purchase Contract Agent of the
Purchase Contract Agreement and the Pledge Agreement.
(f) The Company shall have furnished to the Underwriters a certificate of
the Company, signed by the Chairman of the Board, any Vice President,
the Treasurer or any Assistant Treasurer and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final
Prospectus, there has not occurred any material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business.
(g) The Registration Statement has become effective and at Closing Time
no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters.
(h) The Company shall have requested and caused Ernst & Young LLP to have
furnished to the Underwriters, at the date hereof and at the Closing
Date, letters, dated respectively as of the date hereof and as of the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters, together with signed or reproduced copies of such
letters for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Final Prospectus.
(i) The NASD shall have confirmed that it has not raised any objection
with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(j) At the Closing Time, the Income PRIDES and the Shares shall have been
approved for listing, subject to official notice of issuance and
evidence of satisfactory distribution, on the New York Stock
Exchange, and satisfactory evidence of such actions shall have been
provided to the Underwriters.
(k) At the date of this Agreement, the Underwriters shall have received
an agreement substantially in the form of Exhibit C hereto signed by
the persons listed on Schedule IV hereto.
(l) In the event that the Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company
contained herein or in certificates of any officer of the Company
delivered pursuant to the provisions hereof shall be true and correct
as of each Date of Delivery and, at the relevant Date of Delivery,
the Underwriters shall have received:
(i) A certificate, dated such Date of Delivery, signed by the
Chairman of the Board, any Vice President, the Treasurer or
any Assistant Treasurer and the principal financial or
accounting officer of the Company confirming that the
certificate delivered at Closing Time pursuant to Section
5(f) hereof remains true and correct as of such Date of
Delivery.
(ii) The opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(iii) The opinion of Xxxxx X. XxXxx, Vice President and General
Counsel to the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(c).
(iv) The opinion of Shearman & Sterling, counsel for the
underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(d) hereof.
(v) The legal opinion from counsel for The Bank of New York, as
Purchase Contract Agent, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(e).
(vi) A letter from Ernst & Young LLP, in form and substance
satisfactory to the Underwriters and dated such Date of
Delivery, substantially in the same form and substance as
the letter furnished to the Underwriters pursuant to Section
5(h) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(m) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for
the purpose of enabling them to pass upon the issuance and sale of
the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the Underwriters and counsel for the
Underwriters.
(n) If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company at any time
at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. (1) The Company
agrees to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto) or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Final Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading;
(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
any 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, provided that
(subject to Section 6(d) below) any such settlement is
effected with the written consent of the Company, and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
the Underwriters), reasonably incurred in investigating,
preparing and defending against any litigation, or any
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 the clauses (i) or (ii)
above;
provided, however, that this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company in writing by any Underwriter through the
Underwriters expressly for use in the Registration Statement or any
preliminary prospectus or the Final Prospectus (or any amendment or
supplement thereto).
(2) In addition to and without limitation of the
Company's obligation to indemnify Xxxxxxx Xxxxx as an Underwriter,
the Company also agrees to indemnify and hold harmless the
Independent Underwriter and each person, if any, who controls the
Independent Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, from and against any and all loss,
liability, claim, damage and expense whatsoever, as incurred,
incurred as a result of the Independent Underwriter's participation
as a "qualified independent underwriter" within the meaning of Rule
2720 of the Conduct Rules of the NASD in connection with the offering
of the Securities.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a)(1) of this Section, 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 or the Final Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Underwriters expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Final Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable 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
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a)(1) above, counsel to the indemnified parties shall be selected by the
Underwriters, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own 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;
provided that, if indemnity is sought pursuant to Section 6(a)(2), then, in
addition to the fees and expenses of such counsel for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one counsel (in addition to any local counsel), separate from
its own counsel and that of the other indemnified parties, for the Independent
Underwriter in its capacity as a "qualified independent underwriter" and all
persons, if any, who control the Independent Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of 1934 Act 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 if, in the
reasonable judgment of the Independent Underwriter, there may exist a conflict
of interest between the Independent Underwriter and the other indemnified
parties. Any such separate counsel for the Independent Underwriter and such
control persons of the Independent Underwriter shall be designated in writing
by the Independent Underwriter. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated
by Section 6(a)(1)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided that an indemnifying
party shall not be liable for any such settlement effected without its consent
if such indemnifying party (1) reimburses such indemnified party in accordance
with such request to the extent it considers such request to be reasonable and
(2) provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (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 pursuant to this Agreement or (ii) if the allocation provided by
clause (i) 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 of
the Underwriters on the other hand in connection with the statements or
omissions, which resulted in such losses, liabilities, claims, damages or
expenses, 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 hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Final Prospectus, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or 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 Xxxxxxx Xxxxx
will not receive any additional benefits hereunder for serving as the
Independent Underwriter in connection with the offering and sale of the
Securities.
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 which does not take
account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any 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 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial Securities set forth
opposite their respective names in Schedule I hereto and not joint.
SECTION 8. Representations, Warranties and Agreement to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Final
Prospectus (exclusive of any supplement thereto), any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or in the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Underwriters, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New
York Stock Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or
by such system or by order of the Commission, the NASD or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States,
or (iv) if a banking moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the
Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Underwriters shall have the right, with 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Underwriters shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, the non-defaulting
Underwriters shall be obligated, each severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after Closing Time, the
obligation of the Underwriters to purchase and of the Company to sell
the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve
any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in
termination of this Agreement or, in the case of a Date of Delivery which is
after Closing Time, which does not result in a termination of the obligation
of the Underwriters to purchase and the Company to sell the relevant Option
Securities, as the case may be, either the Underwriters or the Company shall
have the right to postpone Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section.
SECTION 11. Notices. All notices and other communications hereunder
will be in writing and effective only on receipt, and, if sent to the
Underwriters, will be mailed, delivered or telefaxed to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Attention: Equity Capital Market
(fax no.: (000) 000-0000) and confirmed to Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, at 4 World Financial Center, Xxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, or, if sent to the Company, will be mailed, delivered or
telefaxed to Xxxxx X. XxXxx, (fax no: 000-000-0000) and confirmed to it at
Gabelli Asset Management Inc., Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx 00000,
Attention: General Counsel.
SECTION 12. Parties. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
SECTION 13. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The section headings used herein are
for convenience only and shall not affect the construction hereof.
SECTION 15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
GABELLI ASSET MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
GABELLI & COMPANY, INC.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxx Xxxxxx
------------------------
Authorized Signatory
SCHEDULE I
NUMBER OF INITIAL SECURITIES TO BE PURCHASED
Number of Income
PRIDES
Underwriter
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ...... 2,880,000
Gabelli & Company, Inc. ................................. 720,000
TOTAL ------------------
3,600,000
==============================================================================
SCHEDULE II
GABELLI ASSET MANAGEMENT INC.
3,600,000 FELINE PRIDES
1 The offering price per Security, determined as provided in said
Section 2, shall be $25.
2. The purchase price per Security to be paid by the several
Underwriters shall be $24.25, being an amount equal to the offering
price set forth above less $.75 per Security.
Schedule III
List of Subsidiaries
Gabelli Funds, L.L.C.
GAMCO Investors, Inc.
Gabelli Securities, Inc.
Gabelli Advisers, Inc.
Gabelli & Company, Inc.
Gabelli Fixed Income L.L.C.
Gabelli Fixed Income Distributors, Inc.
Gabelli Direct Inc.
Schedule IV
LIST OF PERSONS SUBJECT TO LOCK-UP
Gabelli Group Capital Partners, Inc.
Rye Holdings, Inc.
Rye Capital Partners, Inc.
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. XxXxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
EXHIBIT A
Form of Opinion of Company's Counsel,
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
To be delivered pursuant to Section 5(b)
1. The Purchase Agreement has been duly authorized, executed and
delivered by the Company;
2. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery thereof by the other parties thereto) constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except as (a) the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally, (b) the enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) and (c) rights
to indemnity and contribution thereunder may be limited by applicable law or
the public policy underlying such laws;
3. Each of the Purchase Contract Agreement and the Pledge Agreement
has been duly authorized, executed and delivered by the Company and (assuming
due authorization, execution and delivery thereof by the other parties
thereto) constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as (a) the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally and (b) the enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity); provided, however, that upon the
occurrence of a Termination Event (as defined in the Purchase Contract),
Section 365(e) of the Bankruptcy Code (11 U.S.C. xx.xx. 101-1330, as amended)
would not substantively limit the provisions of Sections 3.15 and 5.9 of the
Purchase Contract Agreement or Section 4.3 of the Pledge Agreement that
require termination of the Purchase Contracts and release of the Collateral
Agent's security interest in (1) the Notes, (2) the Treasury securities or (3)
the applicable ownership interest of the Treasury Portfolio, as applicable,
and the transfer of such securities to the Purchase Contract Agent (for the
benefit of the holders of Securities); and, provided, further, however, that
(i) the foregoing opinion is subject to the equitable powers of the Bankruptcy
Court and the Bankruptcy Court's power under Section 105(a) of the Bankruptcy
Code and (ii) procedural restrictions respecting relief from the automatic
stay under Section 362 of the Bankruptcy Code may delay the timing of the
exercise of such rights and remedies;
4. The Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery thereof by
the Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as (a)
the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally, (b) the enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered
in a proceeding at law or in equity);
5. The Notes have been duly authorized by the Company and, when
issued and authenticated in the manner provided for in the Indenture and
delivered against payment for the Income PRIDES of which they are a part in
accordance with the terms of the Purchase Agreement and the Indenture, will be
entitled to the benefits of the Indenture and constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except (a) as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and (b) as such enforcement may be limited by
general principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity;
6. The Securities to be purchased by the Underwriters have been duly
authorized by the Company and, when issued and authenticated in accordance
with the provisions of the Purchase Contract Agreement and delivered to and
paid for by the Underwriters in accordance with the terms of the Purchase
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except (a) as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights and remedies generally
and (b) as such enforcement may be limited by general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or in
equity; provided, however, that upon the occurrence of a Termination Event (as
defined in the Purchase Contract), Section 365(e) of the Bankruptcy Code (11
U.S.C. xx.xx. 101-1330, as amended) would not substantively limit the
provisions of Sections 3.15 and 5.9 of the Purchase Contract Agreement or
Section 4.3 of the Pledge Agreement that require termination of the Purchase
Contracts and release of the Collateral Agent's security interest in (1) the
Notes, (2) the Treasury securities or (3) the applicable ownership interest of
the Treasury Portfolio, as applicable, and the transfer of such securities to
the Purchase Contract Agent (for the benefit of the holders of Securities);
and, provided, further, however, that (i) the foregoing opinion is subject to
the equitable powers of the Bankruptcy Court and the Bankruptcy Court's power
under Section 105(a) of the Bankruptcy Code and (ii) procedural restrictions
respecting relief from the automatic stay under Section 362 of the Bankruptcy
Code may delay the timing of the exercise of such rights and remedies;
7. The Shares to be issued and sold by the Company under the Purchase
Contract Agreement have been duly authorized and reserved for issuance and,
when issued and delivered by the Company in accordance with the provisions of
the Purchase Contract Agreement and the Purchase Contracts upon payment of the
purchase price specified therein, will be validly issued, fully paid and
nonassessable; and free and clear of any preemptive rights or any similar
rights arising under the Company's Certificate of Incorporation or the
Business Corporation Law of the State of New York;
8. The Indenture has been qualified under the 1939 Act;
9. The statements in the Final Prospectus under the captions
"Description of the FELINE PRIDES," "Description of the Purchase Contracts,"
"Certain Provisions of the Purchase Contract Agreement and the Pledge
Agreement" and "Description of the Notes," insofar as such statements purport
to summarize certain provisions of the Purchase Contract Agreement, the
Remarketing Agreement, the Pledge Agreement, the Indenture, the Notes and the
Income PRIDES fairly summarize such provisions in all material respects;
10. Although the discussion set forth in the Final Prospectus under
the heading "Certain United States Federal Income Tax Consequences" does not
purport to discuss all possible United States federal income tax consequences
of the purchase, ownership and disposition of the FELINE PRIDES, such
discussion constitutes, in all material respects, a fair and accurate summary
of the United States federal income tax consequences of the purchase,
ownership and disposition of the FELINE PRIDES, based upon current United
States federal income tax law;
11. The Registration Statement has been declared effective under the
1933 Act; any required filing of the Final Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b); we have been orally advised by the Commission that no order suspending
the effectiveness of the Registration Statement has been issued and, to the
best knowledge of such counsel, no proceedings for that purpose have been
instituted or are pending or threatened;
12. The Registration Statement, at the time it became effective or as
of the date of the Purchase Agreement, and the Final Prospectus, as
supplemented by the prospectus supplement as of the date of the prospectus
supplement or as of the date hereof, appeared on their face to be
appropriately responsive in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations, except that in each case we do not
express any opinion as to the financial statements and schedules and other
financial data included or incorporated by reference therein or excluded
therefrom and the Statement of Eligibility on Form T-1, and, except to the
extent expressly stated in paragraphs 9 and 10 above, we do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final Prospectus;
13. The documents incorporated by reference in the Final Prospectus
(other than the financial statements and supporting schedules and other
financial data included or incorporated by reference therein or omitted
therefrom or the exhibits thereto, as to which we express no opinion), when
they were filed with the Commission appeared on their face to be appropriately
responsive in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder;
14. No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required to be made or obtained by the
Company pursuant to the Business Corporation Law of the State of New York or
the laws, rules or regulations of the State of New York or of the United
States of America in connection with the transactions contemplated herein and
in the other Operative Documents, except such as have been made obtained under
the 1933 Act, the 1934 Act, the 1939 Act or otherwise and such as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters (about which
such counsel need express no opinion) and such other approvals (specified in
such opinion) as have been obtained;
15. The execution, delivery and performance by the Company of the
Purchase Agreement and the other Operative Documents and the consummation by
the Company of the transactions contemplated thereby, including the issuance
and sale of the Securities and the issuance and sale of the Shares pursuant to
the Purchase Contracts, will not (i) conflict with the certificate of
incorporation or by-laws of the Company, (ii) constitute a violation of, or a
breach or default under, the terms of any of the agreements listed on Schedule
A hereto or (iii) violate or conflict with, or result in any contravention of,
the laws, rules and regulations of the State of New York and the federal laws
of the United States of America, in each case, which, in our experience are
normally applicable to transactions of the type contemplated by the Purchase
Agreement and the other Operative Documents (other than the United States
federal securities laws, state and foreign securities or blue sky laws,
antifraud laws and the rules and regulations of the NASD). We do not express
any opinion, however, as to whether the execution, delivery or performance by
the Company of the Purchase Agreement and each of the other Operative
Documents will constitute a violation of, or a default under, any covenant,
restriction or provision with respect to financial ratios or tests or any
aspect of the financial condition or results of operations of the Company or
any of its subsidiaries.
16. The Company is not, and solely after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus will not be, subject to
registration and regulation as an "investment company" as such term is defined
in the Investment Company Act;
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, the Laws of the State of New York or
the Federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel reasonably
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials.
Furthermore, following the opinion paragraphs, such counsel shall
state the following:
"We have participated in conferences with officers
and other representatives of the Company, representatives of
the independent public accountants of the Company and your
representatives at which the contents of the Registration
Statement and the Final Prospectus and related matters were
discussed. We did not participate in the preparation of the
documents incorporated by reference but have, however,
reviewed such documents and discussed the business and
affairs of the Company with officers and other
representatives of the Company. Although we are not passing
upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Final
Prospectus and have made no independent check or
verification thereof (except to the extent stated in
paragraphs 9 and 10 above), on the basis of the foregoing,
no facts have come to our attention which lead us to believe
that the Registration Statement, at the time it became
effective and as of the date of the Purchase Agreement,
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Final Prospectus as supplemented by the prospectus
supplement, as of the date of the prospectus supplement and
as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary
to make the statements therein, in the light of the
circumstances in which they were made, not misleading,
except that we express no belief with respect to the
financial statements, schedules and other financial data
included or incorporated by reference therein or excluded
therefrom."
Schedule A
1. Registration Rights Agreement, dated as of December 27, 2001, by and
among Xxxxxxx International, LP, Xxxxxxx Opportunity International,
LP, Xxxxxxx Investment Partners, LP, Xxxxxxx Opportunity Trust, LP
and Xxxxxxx QP Investment Partners, LP and Gabelli Asset Management
Inc.
2. Note Purchase Agreement, dated as of August 14, 2001, by and among
Cascade Investment LLC, Gabelli Asset Management Inc., Xxxxx X.
Xxxxxxx, Gabelli Group Capital Partners, Inc., Rye Holdings, Inc.,
and Rye Capital Partners, Inc.
3. Cascade Convertible Promissory Note, dated as of August 14, 2001.
4. Registration Rights Agreement, dated as of August 14, 2001, between
Cascade Investment LLC and Gabelli Asset Management Inc.
5. Tax Indemnification Agreement, dated as of February 17, 1999, between
Gabelli Asset Management, Inc. and Gabelli Group Capital Partners.
6. Lock-Up Agreement, dated as of February 10, 1999, between Gabelli
Asset Management and Gabelli Group Capital Partners Inc.
7. Employment Agreement, dated as of February 9, 1999, between Gabelli
Asset Management Inc. and Xxxxx X. Xxxxxxx.
8. Management Services Agreement, dated as of February 9, 1999, between
Gabelli Group Capital Partners Inc. and Gabelli Asset Management Inc.
9. Gabelli Asset Management Inc. 1999 Annual Performance Incentive Plan.
10. Gabelli Asset Management 1999 Stock Award and Incentive Plan.
11. Lease Agreement, dated as of December 5, 1997, between M(4)E, LLC and
Gabelli Group Capital Partners Inc.
EXHIBIT B
Form of Opinion of Xxxxx X. XxXxx,
General Counsel of the Company,
To be delivered pursuant to Section 5(c)
1. The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of New York and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Final Prospectus and to enter into
and perform its obligations under, and as contemplated under, the Operative
Documents to which it is a party; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect;
2. Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X), including those listed on Schedule
III to the Purchase Agreement, (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Final Prospectus
and is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best knowledge of
such counsel, is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; none of the outstanding shares of capital stock of any Subsidiary
was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary;
3. All the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
nonassessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of
any securityholder of the Company;
4. The Company's authorized equity capitalization is as set forth in
the Final Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final
Prospectus;
5. There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of such counsel, threatened,
against or affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed therein), or
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreement and the other Operative Documents or
the performance by the Company of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect;
6. There are no contracts or documents that are required to be
described in the Registration Statement, the Final Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which
have not been so described and filed as required. The descriptions of the
terms of any such contracts or documents contained in the Registration
Statement or the Final Prospectus are correct in all material respects;
7. The information included in the Company's Annual Report on Form
10-K for the year ended December 31, 2000 under the captions "Business -
Intellectual Property," "Business - Regulation," "Property" and "Legal
Proceedings," to the extent that it constitutes matters of law, summaries of
legal matters, the Company's charter and bylaws, other documents or legal
proceedings, or legal conclusions, has been reviewed by me and is correct in
all material respects; and
8. The execution, delivery and performance of the Purchase Agreement
and the other Operative Documents and the consummation of the transactions
contemplated in the Purchase Agreement and the other Operative Documents and
in the Registration Statement (including the issuance and sale of the
Securities pursuant hereto and the use of the proceeds from the sale of the
Securities as described in the Final Prospectus under the caption "Use of
Proceeds" and the issuance and sale of the Shares pursuant to the Purchase
Contracts) and compliance by the Company with its obligations under the
Purchase Agreement and the other Operative Documents have been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease 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 may be bound, or to which any of the property or assets of the Company
or any of its subsidiaries is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or
any of their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company or any of its
subsidiaries.
9. Each of Gabelli Funds, L.L.C., Gabelli Advisers, Inc., Gabelli
Fixed Income, L.L.C. and GAMCO Investors, Inc. (each an "Adviser" and,
collectively, the "Advisers") is duly registered as an investment adviser
under the Advisers Act. No other subsidiary of the Company is required to be
registered as an investment adviser under the Advisers Act and the rules and
regulations of the Commission promulgated thereunder;
10. Each of Gabelli & Company, Inc., Gabelli Fixed Income
Distributors, Inc. and Gabelli Direct Inc. is duly registered, licensed or
qualified as a broker-dealer under all federal laws requiring any such
registration, licensing or qualification. None of the Company's other direct
or indirect subsidiaries is required to be registered, licensed or qualified
as a broker-dealer under any federal law requiring any such registration,
licensing or qualification;
11. None of the Company or its direct or indirect subsidiaries,
including the Advisers, is required to be registered, licensed or qualified as
an investment adviser under the laws of any state, in which it or its
subsidiaries conduct business, requiring any such registration, licensing or
qualification.
Furthermore, following the opinion paragraphs, such counsel shall
state the following:
"In addition, I and members of my legal staff have
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants of the Company and your
representatives at which the contents of the Registration
Statement and the Final Prospectus, the documents incorporated
by reference in the Registration Statement and related matters
were discussed. Although I am not passing upon, and do not
assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Final Prospectus and have made no independent
check or verification thereof other than as specified in this
opinion, on the basis of the foregoing, (A) I am of the
opinion that each document, if any, filed pursuant to the 1934
Act and incorporated by reference in the Final Prospectus
(except for financial statements and schedules and other
financial information included therein as to which I express
no opinion) complied when so filed as to form in all material
respect with the 1934 Act and the applicable rules and
regulations of the Commission thereunder, (B) I have not
become aware of any fact that leads me to believe that the
Registration Statement (other than the financial statements
and supporting schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the
Statements of Eligibility on Form T-1, as to which we need
express no opinion), at the time it became effective or as of
the date of the Purchase Agreement, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (C) I am of the opinion
that the Registration Statement and the Final Prospectus
(except for financial statements and schedules and other
financial information included therein as to which I express
no opinion) comply as to form in all material respects with
the 1933 Act and the applicable rules and regulations of the
Commission thereunder and (D) I have not become aware of any
fact that leads me to believe that the Final Prospectus or any
amendment or supplement thereto (other than the financial
statements and supporting schedules and other financial data
included or incorporated by reference therein or omitted
therefrom, as to which we need express no opinion), at the
time the Final Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or as of the
date hereof, contained or contains an 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."
EXHIBIT C
Form of Lock-Up Agreement
January 31, 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Gabelli & Company, Inc.
As the Underwriters named in the Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Proposed Offering by Gabelli Asset Management Inc.
of FELINE PRIDES
Dear Sirs:
The undersigned, a stockholder and/or an executive officer
and/or director of Gabelli Asset Management Inc., a New York corporation
(the "Company"), understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") propose to enter into
a Purchase Agreement (the "Purchase Agreement") with the Company providing
for the offering of the Company's FELINE PRIDES (the "Securities"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder and/or an executive officer and/or director of
the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with
the Xxxxxxx Xxxxx that, during a period of 90 days from the date of the
Final Prospectus (as defined in the Purchase Agreement), the undersigned
will not, without the prior written consent of Xxxxxxx Xxxxx, directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant for the sale of, or lend or otherwise dispose of
or transfer any shares of the Company's class A common stock, par value
$0.001 per share, or class B common stock, par value $0.001 per share
(together, the "Common Stock"), or any securities convertible into or
exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or cause to
be filed any registration statement under the Securities Act of 1933, as
amended, with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of
Common Stock or any securities convertible into or exchangeable for Common
Stock, whether any such swap or transaction is to be settled by delivery of
Common Stock or other securities, in cash or otherwise.
The foregoing sentence shall not apply to (i) transfers of
shares of Common Stock or options to purchase the Common Stock made as a
bona fide gift or gifts, provided that the donee or donees thereof agree to
be bound by the restrictions set forth herein, and provided further that
any such transfer shall not involve a disposition value, (ii) transfers of
shares of Common Stock or options to purchase the Common Stock made to any
trust for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, provided that the trustee of the trust
agrees to be bound by the restrictions set forth herein, and provided
further that any such transfer shall not involve a disposition value and
(iii) transfers of shares of Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock to the Company to
satisfy the exercise price for any securities convertible into or
exercisable or exchangeable for the Common Stock.
In addition, the undersigned may transfer, with the prior
written consent of Xxxxxxx Xxxxx (which consent will not be unreasonably
withheld), the shares of Common Stock acquired by the undersigned upon the
exercise of stock options that will be vesting on February 10, 2002.
Very truly yours,
Signature:
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