Exhibit 1(a)
Senior Subordinated Debt Securities
XXXXXX BROTHERS INC.
UNDERWRITING AGREEMENT
----------------------
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxxx Brothers Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to you and the other underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its senior subordinated debt
securities identified in Schedule I hereto (the "Securities") to be issued under
the indenture (the "Indenture") identified in such Schedule I, between the
Company and the trustee (the "Trustee") identified therein. If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "Commission") registration statements on Form S-3 (the file numbers of
which are set forth in Schedule I hereto), including the Post-Effective
Amendments thereto, which have become effective, for the registration of
the Securities under the Securities Act. The registration statements, as
amended at the date of this Agreement, meet the requirements set forth in
Rule 415(a)(1)(x) under the Securities Act and comply in all other material
respects with such rule. The Company proposes to file with the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424") a supplement to
the form of prospectus included in the registration statements relating to
the initial offering of the
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Securities and the plan of distribution thereof and has previously advised
you of all further information (financial and other) with respect to the
Company to be set forth therein. The term "Registration Statements" means
the registration statements, as amended at the date of this Agreement,
including the exhibits thereto, financial statements, and all documents
incorporated therein by reference pursuant to Item 12 of Form S-3 (the
"Incorporated Documents"), and such prospectus as then amended, including
the Incorporated Documents, is hereinafter referred to as the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in which
it shall be filed with the Commission pursuant to Rule 424 (including the
Basic Prospectus as so supplemented), is hereinafter called the "Final
Prospectus". Any preliminary form of the Basic Prospectus which has
heretofore been filed pursuant to Rule 424 is hereinafter called the
"Interim Prospectus". Any reference herein to the Registration Statements,
the Basic Prospectus, any Interim Prospectus or the Final Prospectus shall
be deemed to refer to and include the Incorporated Documents which were
filed under the Securities Exchange Act of 1934 (the "Exchange Act"), on or
before the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statements, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any Incorporated Documents under the
Exchange Act after the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the
case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
with the Commission pursuant to Rule 424, when, before the Closing Date
(hereinafter defined), any amendment to the Registration Statements becomes
effective, when, before the Closing Date, any Incorporated Document is
filed with the Commission, when any supplement to the Final Prospectus is
filed with the Commission and at the Closing Date, the Registration
Statements, the Final Prospectus and any such amendment or supplement will
comply in all material respects with the applicable requirements of the
Securities Act and the Rules, and the Incorporated Documents will comply in
all material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations adopted by the
Commission thereunder; on the date hereof and on the Closing Date, the
Indenture shall have been qualified under and will comply in all material
respects with the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"); on the date they became effective, the Registration
Statements did not, and, on the date that any post-effective amendment to
the Registration
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Statement becomes effective, the Registration Statements as amended by such
post-effective amendments did not or will not, as the case may be, 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; on the date the Final Prospectus is filed with the
Commission pursuant to Rule 424 and on the Closing Date, the Final
Prospectus, as it may be amended or supplemented, will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and on said dates,
the Incorporated Documents will comply in all material respects with the
applicable provisions of the Exchange Act and rules and regulations of the
Commission thereunder, and, when read together with the Final Prospectus,
or the Final Prospectus as it may be then amended or supplemented, 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, in light of the circumstances under which they are made, not
misleading; provided that the foregoing representations and warranties in
this paragraph (b) shall not apply to statements or omissions made in
reliance upon and in conformity with written information furnished to the
Company by or through the Representatives on behalf of any Underwriter
specifically for use in connection with the preparation of the Registration
Statements or the Final Prospectus, as they may be amended or supplemented,
or to any statements in or omissions from the statement of eligibility and
qualification on Form T-1 of the Trustee under the Trust Indenture Act
("Form T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of their
respective dates, complied in all material respects with the requirements
of the Securities Act and of the Rules and did not include any untrue
statement of a material fact or 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 Commission has not issued
an order preventing or suspending the use of the Basic Prospectus or any
Interim Prospectus.
(d) The nationally recognized firm of independent public accountants
whose report appears in the Company's most recent Annual Report on
Form 10-K, which is incorporated by reference in the Final Prospectus, are
independent public accountants as required by the Securities Act and the
Rules.
(e) In the event that a report of a nationally recognized firm of
independent public accountants regarding
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historical financial information with respect to any entity acquired by the
Company is required to be incorporated by reference in the Final
Prospectus, such independent public accountants were independent public
accountants, as required by the Securities Act and the Rules, during the
period of their engagement to examine the financial statements being
reported on and at the date of their report.
(f) The audited consolidated financial statements of the Company in
the Final Prospectus and the Registration Statements present fairly on a
consolidated basis the financial position, the results of operations,
changes in common stock and other stockholder's equity and cash flows of
the Company and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The unaudited consolidated financial statements of the Company,
if any, included in the Final Prospectus and the Registration Statements
and the related notes are true, complete and correct, subject to normally
recurring changes resulting from year-end audit adjustments, and have been
prepared in accordance with the instructions to Form 10-Q.
(g) Except as described in or contemplated by the Registration
Statements and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects the
business, properties, financial condition or results of the Company or the
Company and its subsidiaries taken as whole, from the dates as of which
information is given in the Registration Statements and Final Prospectus.
(h) The Securities conform to the description thereof contained in
the Final Prospectus, are duly and validly authorized, and, when validly
authenticated, issued and delivered in accordance with the Indenture and
sold to the Underwriters as provided in this Agreement, will be validly
issued and outstanding obligations of the Company entitled to the benefits
of the Indenture.
(i) The Company does not have any subsidiaries having business or
properties that are material to the business and properties of the Company
and its subsidiaries taken as a whole. The Company is not in violation of
its corporate charter or by-laws or in default under any agreement,
indenture or instrument, the effect of which violation or default would be
material to the Company and its subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement will not conflict
with, result in the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a default under, any
material agreement, indenture or
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instrument, or result in a violation of the corporate charter or by-laws of
the Company or any of its subsidiaries or any order, rule or regulation of
any court or governmental agency having jurisdiction over the Company or
its property. Except as set forth in the Final Prospectus or as required
by the Securities Act, the Exchange Act, the Trust Indenture Act and
applicable state securities laws, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is required
for the execution, delivery and performance of this Agreement.
(j) The Company has been duly organized, is validly existing and in
good standing under the laws of its jurisdiction of incorporation, is duly
qualified to do business and in good standing as a foreign corporation and
is fully registered as a broker-dealer, broker, dealer or investment
advisor, as the case may be, in each jurisdiction in which its ownership of
property or the conduct of its business requires such qualification or
registration and in which the failure to qualify or register would be
reasonably likely, individually or in the aggregate, to have a material
adverse effect on the business, condition or properties of the Company and
its subsidiaries taken as a whole. The Company holds all material
licenses, permits, and certificates from governmental authorities necessary
for the conduct of its business and owns, or possesses adequate rights to
use, all material rights necessary for the conduct of such business and has
not received any notice of conflict with the asserted rights of others in
respect thereof; and the Company has the corporate power and authority
necessary to own or hold its properties and to conduct the business in
which it is engaged.
(k) Except as described in the Registration Statements and the Final
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the Company
or any of its subsidiaries which might reasonably be expected to result in
any material adverse change in the business, properties, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole or which is required to be disclosed in the Registration
Statements and the Final Prospectus.
(l) The certificates delivered pursuant to paragraph (f) of Section 6
hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Securities
were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, in all material respects true and complete.
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2. Sale and Purchase of the Securities. The Company agrees to sell
to each Underwriter, and each Underwriter, on the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein stated, agrees to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedule II hereto, except that,
if Schedule I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto, less
the respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts (as hereinafter defined) are herein called "Contract
Securities". The obligations of the Underwriters under this Agreement are
several and not joint.
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities, or a portion thereof, from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve, and the Underwriters will endeavor to
make such arrangements. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds and educational and charitable institutions. The Company will make
Delayed Delivery Contracts in all cases where sales of Contract Securities
arranged by the Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery Contract must be for
not less than the minimum principal amount set forth in Schedule I hereto and
the total principal amount of Contract Securities may not exceed the maximum
principal amount set forth in Schedule I hereto. The Underwriters will not have
any responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which bears the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the total principal amount of Securities set forth in
Schedule II hereto, except to the extent that the Representatives determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the total principal
amount set forth in Schedule II hereto less the total principal amount of
Contract Securities.
3. Delivery and Payment. Delivery by the Company of the
Underwriters' Securities to the Representatives for the
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respective accounts of the several Underwriters and payment by the Underwriters
therefor by certified or official bank check or checks payable in, or by wire
transfer of, immediately available (federal) funds to or upon the order of the
Company shall take place at the office, on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Underwriters' Securities being herein
called the "Closing Date").
Concurrently with the delivery of any payment for Underwriters'
Securities as provided in this Section 3, the Company will deliver to the
Representatives for the respective accounts of the several Underwriters a check
in an amount equal to the fee set forth in Schedule I hereto with respect to the
principal amount of Securities for which Delayed Delivery Contracts are made.
The Underwriters' Securities will be registered in such names and in
such authorized denominations as the Representatives may request no less than
two full business days in advance of the Closing Date. The Company agrees to
have the Underwriters' Securities available for inspection, checking and
packaging by the Representatives at such place as is designated by the
Representatives, not later than 1:00 p.m., New York City time, on the business
day prior to the Closing Date.
4. Offering by Underwriters. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed any Interim Prospectus and are authorized to distribute the Final
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Securities has been terminated, the Representatives will so advise the
Company.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 as required thereby and will promptly
advise the Representatives (A) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (B) when any amendment to
the Registration Statements relating to the Securities shall have become
effective, (C) of any request by the Commission for any amendment of the
Registration Statements, the Final Prospectus, the Basic Prospectus or any
Interim Prospectus, or for any additional information, (D) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statements or the qualification of the Indenture or the
institution or
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threatening of any proceedings for that purpose and (E) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. After the
date of this Agreement and prior to the termination of the offering of
these Securities the Company will not file any amendment of the
Registration Statements or amendment or supplement to the Final Prospectus
(except an amendment or supplement to the Final Prospectus that is deemed
to be incorporated by reference in the Final Prospectus pursuant to Item 12
of Form S-3) without the consent of the Representatives and will use its
best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof. Prior to receipt of
the advice to be given by the Representatives pursuant to Section 4, the
Company will not file any document that would be deemed to be incorporated
by reference in the Final Prospectus pursuant to Item 12 of Form S-3
without delivering to the Representatives a copy of the document proposed
to be so filed, such delivery to be made at least twenty-four hours prior
to such filing, and the Company will consult with the Representatives as to
any comments which the Representatives make in a timely manner with respect
to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time during which a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event
occurs as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or supplement
the Final Prospectus to comply with the Securities Act or the Rules, the
Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance and will use its best efforts to cause
any amendment of the Registration Statements containing an amended Final
Prospectus to be made effective as soon as possible.
(c) The Company will deliver to the Representatives, without charge,
(i) signed copies of the Registration Statements relating to the Securities
and of any amendments thereto (including all exhibits filed with, or
incorporated by reference in, any such document) and (ii) as many conformed
copies of the Registration Statements and of any amendments thereto which
shall become effective on or before the Closing Date (excluding exhibits)
as the Representatives may reasonably request.
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(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will deliver, without
charge to the Representatives and to Underwriters and dealers, at such
office or offices as the Representatives may designate, as many copies of
the Basic Prospectus, any Interim Prospectus and the Final Prospectus as
the Representatives may reasonably request.
(e) The Company will make generally available to its security holders
and to the Representatives as soon as practicable an earnings statement
(which need not be audited) of the Company and its subsidiaries, covering a
period of at least 12 months beginning after the date the Final Prospectus
is filed with the Commission pursuant to Rule 424, which will satisfy the
provisions of Section 11(a) of the Securities Act.
(f) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Securities for offering and sale under the laws of such jurisdictions as
the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(g) So long as any Securities are outstanding, the Company will
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission.
(h) If the Company has applied for the listing of the Securities on
the New York Stock Exchange Inc. (the "NYSE"), it will use its best efforts
to cause such listing to be approved as soon as possible.
(i) For a period beginning at the time of execution of this Agreement
and ending on the later of the business day following the Closing Date or
following the date on which any price restrictions on the sale of the
Securities are terminated, without the prior consent of the
Representatives, the Company will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company covered by the
Registration Statements or any other registration statement filed under the
Securities Act.
(j) The Company will use its best efforts to do and perform all
things to be done and performed hereunder prior
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to the Closing Date and to satisfy all conditions precedent to the delivery
of the Securities to be purchased hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of any material statements made in any certificates,
opinions, affidavits, written statements or letters furnished to the
Representatives or to Xxxxxxx Xxxxxxx & Xxxxxxxx ("Underwriters' Counsel")
pursuant to this Section 6, to the performance by the Company of its respective
obligations hereunder and to the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the
second business day following the date of this Agreement or such later date
and time as shall be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration
Statements, as amended from time to time, or suspending the qualification
of the Indenture, shall be in effect and no proceedings for such purpose
shall be pending before or threatened by the Commission and any requests
for additional information on the part of the Commission (to be included in
the Registration Statements or the Final Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which information is given in
the Registration Statements and the Final Prospectus, there shall not have
been any change or decrease specified in the letter referred to in
paragraph (g) of this Section 6 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
offering and delivery of the Securities as contemplated by the Registration
Statements and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of the Deputy General Counsel for the Company, dated the day of the
Closing Date, to the effect that:
(i) The Company has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its
incorporation with all requisite corporate power and authority to own
and operate its properties and to conduct its business as described in
the Final Prospectus.
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(ii) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Final
Prospectus.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance and other laws relating to or affecting
creditors' rights generally from time to time in effect and to general
principles of equity (whether considered in a proceeding in equity or
at law) and by an implied covenant of good faith and fair dealing; and
the Securities have been duly authorized, executed, authenticated,
issued and delivered and constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture,
subject to the effects of bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance and other laws relating to or
affecting creditors' rights generally from time to time in effect and
to general principles of equity (whether considered in a proceeding in
equity or at law) and by an implied covenant of good faith.
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement, except for (1) such
consents, approvals, authorizations or orders as have been obtained
under the Securities Act and such as may be required under the
Exchange Act and the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters, and (2) the qualification of the Indenture under the
Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statements by the Securities Act or by the Rules which
have not been filed as exhibits to the Registration Statements or
incorporated therein by reference as permitted by the Rules.
(vi) To the best of such counsel's knowledge, the Company is not
in violation of its corporate charter or by-laws, or in default under
any material agreement, indenture or instrument known to such counsel,
the effect of which violation or default would be material to the
Company and its subsidiaries taken as a whole.
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(vii) This Agreement and, to the extent applicable, the Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company; the execution, delivery and performance of this
Agreement and any Delayed Delivery Contracts by the Company will not
conflict with, or result in the creation or imposition of any material
lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of, or constitute a default under, any material
agreement, indenture or instrument known to such counsel and to which
the Company is a party or is bound, or result in a violation of the
corporate charter or by-laws of the Company or any order, rule or
regulation known to such counsel of any court or governmental agency
having jurisdiction over the Company or any of its properties, the
effect of which would be material to the Company and its subsidiaries
taken as a whole.
(viii) The Registration Statements have become effective under
the Securities Act, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statements has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(ix) The Registration Statements, the Final Prospectus and each
amendment thereof or supplement thereto (except that no opinion need
be expressed as to the financial statements or other financial or
statistical data or the Form T-1 of the Trustee under the Trust
Indenture Act included or incorporated by reference therein) comply as
to form in all material respects with the requirements of the
Securities Act and the Rules.
(x) If the Securities are to be listed on the NYSE,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with the NYSE, and such
counsel has no reason to believe that the Securities will not be
authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution.
(xi) The Company is duly qualified to do business as a foreign
corporation, is in good standing and is duly registered as a
broker-dealer, broker, dealer or investment advisor, as the case may
be, in each jurisdiction in which the nature of the business conducted
by it or in which the ownership or holding by lease of the properties
owned or held by it require
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such qualification or registration and where the failure to so qualify
or register would have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(xii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of this
Agreement or is required to be disclosed in the Final Prospectus which
is not disclosed and correctly summarized therein.
Such opinion shall also contain a statement that although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statements and the Final Prospectus (except as to those matters stated in
paragraph (ii) of such opinion), such counsel has no reason to believe that (i)
the Registration Statements, as of their effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or (ii) the Final Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that no opinion need be expressed as to the
financial statements or other financial or statistical data or the Form T-1
included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions of
local counsel satisfactory to the Representatives for matters not governed by
New York law and may rely as to matters of fact, to the extent he deems proper,
upon certificates or affidavits of officers of the Company, the Trustee and
public officials. Such counsel may rely on a certificate of the Trustee with
respect to the execution of the Securities by the Company and the authentication
thereof by the Trustee.
(e) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of the Closing Date, with
respect to the issuance and sale of the Securities, the Registration Statements,
the Final Prospectus and other related matters as the Representatives 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.
(f) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Executive Vice President and its Chief Financial Officer or its
Treasurer, dated the day of the Closing Date, to the effect that:
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(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects 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) To the best of their knowledge after due inquiry, no stop
order suspending the effectiveness of the Registration Statements has
been issued and no proceedings for that purpose have been instituted
or threatened.
(iii) In their opinion, (x) the Registration Statements do not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (y) the Final Prospectus does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) since the effective date
of the Registration Statements there has not occurred any event
required to be set forth in an amended or supplemented prospectus
which has not been so set forth.
(g) At the Closing Date, a nationally recognized firm of independent
public accountants shall have furnished to the Representatives a letter, dated
the day of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent auditors with respect to
the Company within the meaning of the Securities Act and the Rules and stating
in effect that:
(i) In their opinion, the consolidated financial statements of
the Company and its subsidiaries, and the supporting schedules,
included in the Registration Statements and the Final Prospectus and
audited by them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
included in the Registration Statements and the Final Prospectus and
of the latest unaudited consolidated financial statements made
available by the Company, carrying out certain specified procedures
(but not an audit in accordance with generally accepted auditing
standards), a reading
15
of the minutes of the meetings of the directors of the Company, and
inquiries of certain officials of the Company and its subsidiaries,
who have responsibility for financial and accounting matters of the
Company and its subsidiaries, as to transactions and events subsequent
to the date of the most recent audited consolidated financial
statements included in the Registration Statements and the Final
Prospectus, nothing came to their attention that caused them to
believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the Company and
its subsidiaries, if any, included in the Registration Statements
and the Final Prospectus for them to be in conformity with
generally accepted accounting principles; and such financial
statements do not comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and
the published instructions, rules and regulations thereunder;
(B) the unaudited capsule information of the Company and its
subsidiaries, if any, included in the Registration Statements and
the Final Prospectus does not agree with the amounts set forth in
the unaudited consolidated financial statements of the Company
from which it was derived or was not determined on a basis
substantially consistent with that of the corresponding financial
information in the latest audited financial statements of the
Company included in the Registration Statements and the Final
Prospectus;
(C)(I) as of the latest date as of which the Company and its
subsidiaries have monthly financial statements, there was any
decrease in the capital stock, additional paid-in capital or
retained earnings, or increase in long-term indebtedness of the
Company and its subsidiaries, as compared with the amounts shown
in the most recent consolidated statement of financial condition
of the Company and its subsidiaries included in the Registration
Statements and the Final Prospectus, (II) with respect to the
period subsequent to the date of the most recent financial
statements included in the Registration Statements and the Final
Prospectus and extending through the latest date as of which the
Company and its subsidiaries have monthly financial statements,
there was a consolidated net loss or (III) with respect to the
amounts of net capital
16
or excess net capital of the Company determined pursuant to
Commission Rule 15c3-1 and shown in the most recent financial
statement of the Company filed pursuant to Commission Rule 17a-5,
there has been any decrease in such amounts as compared with the
amounts shown in the most recent consolidated financial
statements included in the Registration Statements and the Final
Prospectus; and
(D) as of a specified date not more than three business
days prior to the date of the letter, there was any change in the
capital stock or additional paid-in capital, or increase in
long-term indebtedness of the Company and its subsidiaries as
compared with the amounts shown in the most recent consolidated
statement of financial condition of the Company and its
subsidiaries included in the Registration Statements and the
Final Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof, unless said
explanation is not deemed necessary by the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statements or the Final Prospectus, (x) they have read
such pro forma financial statements, (y) they have made inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company as to the basis for their
determination of the pro forma adjustments and whether such pro forma
financial statements comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation S-X
and (z) they have proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts; and as a result
thereof, nothing came to their attention that caused them to believe
that such pro forma financial statements do not so comply with Rule
11-02 of Regulation S-X and that such pro forma adjustments have not
been properly applied to the historical amounts in the compilation of
those statements.
(iv) They have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived from dollar amounts, and has been
obtained from the general accounting records of the Company) set forth
in the Registration Statements, as amended, and the Final Prospectus,
as amended or
17
supplemented, and in Exhibit 12 to the Registration Statements,
including specified information, if any, included or incorporated from
the Company's Annual Report on Form 10-K incorporated therein or
specified information, if any, included or incorporated from any of
the Company's Quarterly Reports on Form 10-Q or its Current Reports on
Form 8-K incorporated therein, agrees with the accounting records of
the Company and its subsidiaries or computations made therefrom,
excluding any questions of legal interpretation.
(h) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt securities by
Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation.
(i) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives or Underwriters' Counsel may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing, or by telegraph confirmed in writing.
7. Expenses. (a) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company will
pay all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issuance, sale and delivery of the
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statements (including all exhibits thereto), any
Interim Prospectus, the Basic Prospectus, the Final Prospectus and any
amendments thereof or supplements thereto and the Indenture, and the rating of
the Securities by one or more rating agencies, all costs and expenses (including
fees of Underwriters' Counsel and their disbursements) incurred in connection
with blue sky qualifications, advising on the legality of the Securities for
investment, the filing
18
requirements, if any, of the National Association of Securities Dealers, Inc. in
connection with its review of corporate financings, the fee for listing the
Securities on the NYSE, the fees and expenses of the Trustee and all costs and
expenses of the printing and distribution of all documents in connection with
such offering. Except as provided in this Section 7, the Company will have no
responsibility to the Underwriters for the Underwriters' own costs and expenses,
including the fees of Underwriters' Counsel and any advertising expenses in
connection with any offer the Underwriters may make.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls such Underwriter within
the meaning of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statements, as originally filed or in any
amendment thereof, or in any Interim Prospectus, the Basic Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Representatives on
behalf of any Underwriter specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the
19
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Interim Prospectus was corrected in the Final
Prospectus, unless such failure to deliver the Final Prospectus was a result of
noncompliance by the Company with Section 5(d) hereof. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statements, and each person, if any, who controls the Company
within the meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statements, the Basic Prospectus,
any Interim Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that the same was made therein in reliance upon
and in conformity with written information furnished to the Company as herein
stated by the Representatives on behalf of such Underwriter specifically for use
in the preparation thereof, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The statements set forth in the last paragraph
of the cover page and under the heading "Underwriting" in the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Registration Statements and the Final
Prospectus, as the case may be, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it
20
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and either (i) the indemnifying party or parties and
the indemnified party or parties mutually agree or (ii) representation of both
the indemnifying party or parties and the indemnified party or parties by the
same counsel is inappropriate under applicable standards of professional conduct
due to actual or potential differing interests between them, the indemnified
party or parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed counsel in connection with the assumption
of legal defenses in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a) representing the indemnified
parties under subparagraph (a), as the case may be, who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company on grounds of policy or other similar
grounds, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discounts appearing on the cover page of
the Final Prospectus bear to the public offering prices appearing thereon and
the Company is responsible for the balance; provided, however, that (i) in no
case shall any Underwriter (except as may be
21
provided in any agreement among underwriters) be responsible for any amount in
excess of the underwriting discounts applicable to the Securities purchased by
such Underwriter hereunder and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of the Securities Act shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Securities Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statements
and each director of the Company shall have the same rights to contribution as
the Company, subject in each case to clauses (i) and (ii) of this subparagraph
(d). Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this subparagraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this
subparagraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for all of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bear to the
aggregate principal amount of Securities set opposite the names of the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of the Securities, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting Underwriters or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statements and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing herein contained shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any non-
22
defaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
at or prior to delivery of and payment for all the Securities, if, prior to such
time (i) trading in securities generally on the NYSE or the over-the-counter
market shall have been suspended or limited or minimum prices shall have been
established on the NYSE or the over-the-counter market, (ii) a banking
moratorium shall have been declared either by federal or New York State
authorities, (iii) any new restriction materially affecting the distribution of
the Securities shall have become effective; trading in any securities of the
Company shall have been suspended or halted by any national securities exchange,
the National Association of Securities Dealers, Inc. or the Commission, (iv) the
United States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States, or (v) there shall have been such a
material adverse change in national or international political, financial or
economic conditions, national or international equity markets or currency
exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Securities.
11. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Securities.
12. Notices. All communications hereunder will be in writing, and,
if sent to the Representatives will be mailed, delivered, telegraphed or telexed
and confirmed to them, at the address specified in Schedule I hereto; or, if
sent to the Company will be mailed, delivered, telegraphed or telexed and
confirmed to it at 3 World Financial Center, New York, New York 10285,
Attention: Chief Financial Officer.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their successors and, to the extent and only
to the extent stated in Section 8 hereof, the officers and directors and
controlling persons referred to in Section 8 hereof, and except as provided in
Section 8 hereof, no person other than the parties hereto and their respective
successors will have any right or obligation hereunder.
23
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
XXXXXX BROTHERS INC.
By
-------------------------------------
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXX BROTHERS INC.
By
-------------------------------------
Title:
Acting on behalf of the Representatives named
in Schedule I annexed hereto and the several
Underwriters named in Schedule II annexed hereto.
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No.
Representative(s) and Address(es): Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Indenture, Title, Purchase Price and Description of Securities:
Indenture: Indenture dated as of March 1, 1996, as supplemented,
with The First National Bank of Chicago, as trustee
Title:
Principal amount:
Price to public:
Purchase price:
Interest rate:
Time of payment of
interest:
Maturity:
Sinking fund
provisions:
Redemption
provisions:
Closing Date, Time and Location:
Date:
Time: 9:30 A.M., New York City time
Location: Xxxxxx Brothers Inc.
24th floor
Three World Financial Center
New York, New York 10285
Delayed Delivery
Arrangements:
SCHEDULE II
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITERS PURCHASED
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . $
------------
$
------------
------------
TOTAL $
------------
------------
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 19
[Insert name and address of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxx Brothers Inc. (the
"Company"), and the Company agrees to sell to the undersigned, on , 19
(the "Delivery Date"), $ principal amount of the Company's %
due (the "Securities") offered by the Company's Prospectus dated ,
19 , and related Prospectus Supplement dated , 19 , receipt of a
copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus accrued interest or amortization of original
issue discount, if any, thereon from , 19 , to the date of payment
and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 a.m., New York City time, on the Delivery Date to or upon the
order of the Company in New York Clearing House (next day) funds, at your office
or at such other place as shall be agreed between the Company and the
undersigned upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and
2
delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
---------------------------------
(Name of Purchaser)
By
------------------------------
(Signature and Title of Officer)
---------------------------------
(Address)
Accepted:
Xxxxxx Brothers Inc.
By
----------------------------------
(Authorized Signature)
