EXHIBIT 1(a)
FORM OF UNDERWRITING AGREEMENT
FIRST SECURITY CORPORATION
[Insert Title of Securities]
UNDERWRITING AGREEMENT
----------------------
1. Introductory. First Security Corporation, a Delaware corporation
------------
("Company"), proposes to issue and sell from time to time certain [shares] of
its [common stock] [preferred stock] [common stock warrants] [debt securities]
registered under the registration statement referred to in Section 2(a)
("Registered Securities"). [The debt securities (the "Debt Securities") will
consist of unsecured debt securities (the "Senior Debt Securities") and
unsecured, subordinated debt securities (the "Subordinated Debt Securities").
The Senior Debt Securities will be issued under an Indenture, dated as of March
1, 1994 (the "Senior Indenture"), between the Company and The First National
Bank of Chicago, as Trustee. The Subordinated Debt Securities will be issued
under an Indenture, dated as of March 1, 1994 (the "Subordinated Indenture"),
between the Company and The First National Bank of Chicago, as Trustee. The
Senior Indenture and the Subordinated Indenture, as they may be modified by the
Trust Indenture Reform Act of 1990, are each referred to herein as an
"Indenture". The Debt Securities will be issued in one or more series, which
series may have varying designations, interest rates and times of payment of any
interest, maturities, redemption provisions and other terms, with all such terms
for any particular series of the Debt Securities being determined at the time of
the sale.] [The Preferred Stock will be issued pursuant to a Certificate of
Designations filed with the Delaware Secretary of State.] [The common stock
warrants will be issued pursuant to a Common Stock Warrant Agreement, dated July
__, 1998, between the Company and First Security Bank, N.A., as Warrant Agent
(the "Warrant Agreement").] [The Registered Securities will, to the extent
provided in the Terms Agreement referred to in Section 3, be convertible at the
option of the holder thereof into [shares of the Company's Common Stock, par
value $1.25 per share (the "Common Stock")] [insert description of other
---------------------------
securities
----------
into which convertible]. [The] [Particular series of the] Registered
----------------------
Securities will be sold pursuant to a Terms Agreement referred to in Section 3,
for resale in accordance with terms of offering determined at the time of sale.]
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Under writers, the term
"Representatives", as used in this Agreement (other than in Sections 2(b), 5(c)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-________), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended at the time of any Terms Agreement
referred to in Sec tion 3, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Regis tration Statement,
as supplemented as contemplated by Section 3 to reflect the terms of the
Securities and the terms of offering thereof, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Securities Act of 1933 (the "Securities Act"), including all
material incorporated by reference therein, is hereinafter referred to as
the "Prospectus". If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to
-2-
include such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, any preliminary form of prospectus
previously filed with the Commission pursuant to Rule 424 (a "preliminary
prospectus") or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") on or before the date of this
Agreement or the date of any preliminary prospectus or the Prospectus, as
the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of any
preliminary prospectus or the Prospectus, as the case may be, which are
deemed to be incorporated by reference therein.
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such Registration Statement conformed in all
respects to the requirements of the Securities Act[, the Trust Indenture
Act of 1939 ("Trust Indenture Act")] and the rules and regulations of the
Commission ("Rules and Regulations"), and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; and on the date of each Terms Agreement referred to in Section
3, at each Closing Date referred to in Section 3 and at the time of filing
of the Prospectus pursuant to Rule 424(b), the Registration Statement and
the Prospectus will conform in all respects to the requirements of the
Securities Act[, the Trust Indenture Act] and the Rules and Regulations,
and neither of such documents will include 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
-3-
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
(c) The financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations and the changes in their consolidated cash
flows for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a material adverse
change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus; and except as set
forth or contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not
in the ordinary course of business) material to the Company and its
subsidiaries taken as a whole.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign
-4-
corporation in good standing in all other jurisdictions in which it owns
properties or leases properties or the conduct of its business requires
such qualification.
(f) Each of the Company's subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, with corporate power and authority to
own its properties and conduct its business as described in the Prospectus,
and has been duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which it owns properties or leases
properties or the conduct of its business requires such qualification,
other than where the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued, are
fully-paid and non-assessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares) are owned by the Company,
directly or indirectly, free and clear of all liens, encumbrances, security
interests and claims.
3. Purchase and Offering of Securities. The obligation of the
-----------------------------------
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. Each Terms Agreement shall be
substantially in the form attached hereto as Annex I and will incorporate by
reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the [principal amount of] [number of] [shares of]
Securities to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters, the nature of the funds to be delivered by the Underwriters
[and] [,] the public offering price, if any [if Debt Securities, insert --, and
-----------------------------
the terms of the Securities not already specified in the Indenture, including,
but not limited to, interest rate, if any, maturity, any redemption
-5-
provisions and any sinking fund requirements] [if Preferred Stock, insert --,
-----------------------------
and the terms of the Securities not already specified in the Certificate of
Designations, including, but not limited to, annual dividend rates, sinking fund
provisions, if any, and redemption provisions, if any] [if Warrants, insert --,
----------------------
and the terms of the Securities not already specified in the Warrant Agreement,
including, but not limited to, the type of securities issuable on exercise of
one Warrant, the Warrant exercise price, the date after which Warrants are
exercisable and the Warrant expiration date], and whether any of the Securities
may be sold to institutional investors pursuant to Delayed Delivery Contracts
(as defined below). Each Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Representatives and the Company agree
as the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as set
forth in the Prospectus. The Securities delivered to the Underwriters on the
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Underwriters may request.
If any Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the
-6-
Underwriters, the fee set forth in such Terms Agreement in respect of the
[principal amount of] [number of] [shares of] Securities to be sold pursuant to
Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the [aggregate principal amount of]
[number of] [shares of] Securities to be purchased by each Underwriter will be
reduced pro rata in proportion to the [principal amount of] [number of] [shares
of] Securities set forth opposite each Underwriter's name in such Terms Agree
ment, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives not later than the business day prior to
the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Com pany agrees with the
---------------------------------
several Underwriters that it will furnish to Xxxxxxxx & Xxxxxxxx, counsel for
the Under writers, one signed copy of the Registration Statement relating to
the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Representatives, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement. The Company will advise you promptly of any such filing
pursuant to Rule 424(b).
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus, and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement;
-7-
and the Company will also advise the Representatives promptly of the filing
of any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Registration Statement or
Prospectus to comply with the Securities Act, 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. Neither the Representatives' consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months after the
date of each Terms Agreement, the Company will make generally available to
its security holders an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective date of the
Registration Statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Sec tion 11(a) of the
Securities Act.
-8-
(e) The Company will furnish to counsel for the Underwriters, one
signed copy of the Registration Statement, including all exhibits, relating
to the Securities [and any [shares of Common Stock] [insert other
------------
securities into which convertible] issuable upon conversion or exercise of
---------------------------------
the Securities] in the form in which it became effective and of all
amendments thereto and will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualifica tion of the
Securities [and any [shares of Common Stock] [insert other securities into
----------------------------
which convertible] issuable upon conversion or exercise of the Securities]
-----------------
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission under
the Exchange Act or mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as the Representatives may
reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including without limiting the
generality of
-9-
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution[, authentication] and delivery of the Securities [and
any [shares of Common Stock] [insert other securities into which
convertible] issuable upon conversion or exercise of the Securities][,
including any expenses of the Trustee], (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities [and any [shares of Common Stock] [insert
other securities into which convertible] issuable upon conversion or
exercise of the Securities] under the laws of such jurisdictions as the
Representatives may designate (including fees of counsel for the
Representatives and their disbursements), (iv) in connection with the
listing of the Securities on any stock exchange, (v) related to any filing
with the National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, [the Indenture,] the Preliminary and
Supplemental Blue Sky Memoranda and any legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided and (vii) payable to rating agencies in connection with the rating
of the Securities.
(i) For a period beginning at the time of execu tion of the Terms
Agreement and ending 30 days after the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell, con
tract to sell or otherwise dispose of any of its [insert securities to be
-----------------------
locked up] which are substantially similar to the Securities.
---------
[ (j) Insert if the Securities are convertible into Common Stock -- To
-------------------------------------------------------------
reserve and keep available at all
-10-
times, free of preemptive rights, shares of Common Stock for the purpose of
enabling the Company to satisfy any obligations to issue shares of Common
Stock upon conversion of the Securities.]
[ (k) Insert if required by the applicable Terms Agreement -- To use its
-------------------------------------------------------
best efforts to qualify the Securities [and shares of Common Stock issuable
upon conversion of the Securities] for trading as national market
securities on the Nasdaq National Market or list the Securities on such
other exchange on which the Company's Common Stock is then listed.
5. Conditions of the Obligations of the Under writers. The
--------------------------------------------------
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein as of the date hereof and the Closing Date, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) Subsequent to the signing of this Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of
Deloitte & Touche confirming that they are independent public accountants
within the meaning of the Securities Act and the applicable published Rules
and Regulations thereunder and stating in effect that:
(i) in their opinion, the financial state ments and schedules
examined by them and included in the prospectus contained in the
Registration Statement relating to the Registered Securities, as
amended at the date of such letter, comply in form in all material
respects with the applicable accounting requirements of the Securities
Act and the Exchange Act;
(ii) they have made a review of any unaudited financial
statements included in such
-11-
prospectus in accordance with standards estab lished by the American
Institute of Certified Public Accountants, as indicated in their
report or reports attached to such letter;
(iii) on the basis of the review referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that the
unaudited financial statements, if any, included in such prospectus do
not comply in form in all material respects with the applic able
accounting requirements of the Securities Act and the related
published Rules and Regulations or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in such prospectus; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in such prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidi aries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or compu tation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
-12-
All financial statements and schedules included in material incorporated by
reference into such prospectus shall be deemed included in such prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order sus pending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission as of the Closing Date.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any material adverse change, or any development
involving a material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in
the Prospectus; (ii) any downgrading in the rating of any debt securities
[or preferred stock] of the Company by any "nationally recognized
statistical rating organization" (as defined for pur poses of Rule 436(g)
under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities [or preferred stock] of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or limitation
of trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any
-13-
exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress, any material adverse change in the
financial markets or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters, including any Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Ray, Xxxxxxx & Xxxxxxx, counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospec tus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which it owns properties or leases
properties or the conduct of its business requires such qualification;
(ii) Each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which it owns properties or leases properties or the
conduct of its business requires such qualification, other than where
the failure to be so qualified or in good standing would not have a
material adverse
-14-
effect on the Company and its subsidiaries taken as a whole; and all
the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid
and non-assessable, and (except in the case of foreign subsidiaries,
for directors' qualifying shares) are owned by the Company, directly
or indirectly, free and clear of all liens, encumbrances, security
interests and claims.
[ (iii) Insert if Debt Securities -- The Indenture has been duly
----------------------------
authorized, executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act; the Securities have been duly
authorized; the Securities other than any Contract Securities have
been duly executed, authenticated, issued and delivered; the Indenture
and the Securities other than any Contract Securities constitute, and
any Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject to bank ruptcy, insolvency, fraudulent transfer, reorgani
zation, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles;
and the Securities other than any Contract Securities conform, and any
Contract Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the Prospectus;]
[ (__) Insert if Preferred Stock -- The Securities conform in all
----------------------------
material respects to the description thereof contained in the
Prospectus and have been duly authorized; and assuming the Securities
are paid for as provided herein, the Securities will be validly
issued, fully paid and
-15-
nonassessable;] [The Company has an authorized capitalization as set
forth in the Prospectus, and all of the outstanding shares of capital
stock of the Company described therein have been duly and validly
authorized and issued and are fully paid and nonassessable;]
[ (__) Insert if Common Stock -- [The Securities have been duly
-------------------------
authorized and, when issued and delivered to the Underwriters against
payment therefore as provided herein, will be validly issued and fully
paid and nonassessable;] [The Company has an authorized capitalization
as set forth in the Prospectus, and all of the outstanding shares of
capital stock of the Company described therein have been duly and
validly authorized and issued and are fully paid and nonassessable];]
[ (__) Insert if Warrants -- The Securities have been duly
---------------------
authorized and duly executed by the proper officers of the Company and
authenticated by the Warrant Agent under the Warrant Agreement and
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; [The Common Stock
initially issuable upon exercise thereof has been duly and validly
authorized and reserved for issuance upon such exercise, and such
shares, when issued upon such exercise in accordance with the terms of
the Warrant Agreement and at the price therein provided for, will be
duly authorized, validly issued, fully paid and nonassessable;] and
assuming due authorization, execution and delivery of the Warrant
Agreement by the Warrant Agent, the Warrant Agreement has been duly
authorized, executed and delivered by the Company and is a
-16-
valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
[ (iv) If Securities are convertible or exchangeable into Common
---------------------------------------------------------
Stock -- The shares of Common Stock issuable upon conversion of such
--------
Securities have been duly and validly authorized and reserved for
issuance upon such conversion, and, when issued and delivered upon
such conversion, will be duly and validly issued and will be fully
paid and non-assessable; the stockholders of the Company have no
preemptive rights with respect to such Common Stock issuable upon
conversion of such Securities; and such shares of Common Stock conform
in all material respects to the description of the Common Stock
contained in the Prospectus;]
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consumma tion of the transactions contemplated by the Terms Agreement
(including the provisions of this Agree ment) in connection with the
issuance or sale of the Securities by the Company, except such as have
been obtained and made under the Securities Act and the Trust
Indenture Act and such as may be required under state securities laws;
(vi) (A) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is, or with the giving of notice
or lapse of time or both would be, in breach or violation of any of
the terms and provisions of, or in default under, its charter or by-
laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such
-17-
counsel to which the Company or any of its subsidiaries is a party or
by which it or any of them or any of their respective properties is
bound, except for violations and defaults which individually and in
the aggregate are not material to the Company and its subsidiaries
taken as a whole or to the holders of the Securities, (B) to the best
of such counsel's knowledge, the execution, delivery and performance
of the [Indenture,] [the Warrant Agreement,] the Terms Agreement
(including the provisions of this Agreement) and any Delayed Delivery
Contracts, consummation of any of the transactions therein
contemplated, compliance with the terms and provisions thereof by the
Company and the issuance and sale of the Securities will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument which is material to
the business of the Company and to which the Company or any subsidiary
of the Company is a party or by which the Company or any such
subsidiary is bound or to which any of the proper ties of the Company
or any such subsidiary is subject and (C) such action will not result
in any violation of any provision of the charter or by-laws of the
Company or any such subsidiary, or any statute, rule or regulation,
or, to the best of such counsel's knowledge, any order of any
governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties;
(vii) The Registration Statement has become effective under the
Securities Act, the Prospectus was filed with the Commission pursuant
to the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has
-18-
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Securities Act, and the
Registration Statement relating to the Registered Securities, as of
its effective date, the Registration Statement and the Prospectus, as
of the date of the Terms Agreement and as of the Closing Date, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Securities Act[,
the Trust Indenture Act] and the Rules and Regulations; such counsel
have no reason to believe that such Registration Statement, as of its
effective date, the Registration Statement or the Prospectus, as of
the date of the Terms Agree ment and as of the Closing Date, or any
such amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; the descriptions in the Registration Statement
and Prospectus of the Registered Securities and of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and
such counsel do not know of any legal or governmental proceedings
required to be described in the Pros pectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the xxxxx cial statements or other
financial data contained in the Registration Statement or the
Prospectus; and
(viii) The Terms Agreement (including the provi sions of this
Agreement) and any Delayed Delivery
-19-
Contracts have been duly authorized, executed and delivered by the
Company.
(e) The Representatives shall have received from Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with res pect to the incorporation of the Company, the validity of
the Securities, the Registration Statement, [the Indenture,] [the Warrant
Agreement,] the Prospectus and other related matters as they may 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 Representatives shall have received a certificate, dated the
Closing Date, of any Vice-Presi dent who is a principal financial or
accounting officer of the Company in which such officer, to the best of his
knowledge after reasonable investigation, shall state that 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, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted and are
pending, or are contemplated by the Commission and that, subsequent to the
date of the most recent financial statements in the Prospectus, there has
been no material adverse change in the financial position or results of
opera tion of the Company and its subsidiaries except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche, which reconfirms the matters set forth
in their letter delivered pursuant to subsection (a) of this Section and
states in effect that:
-20-
(i) in their opinion, any financial statements or schedules
examined by them and included in the Prospectus and not covered by
their letter delivered pursuant to subsection (a) of this Sec tion
comply in form in all material respects with the applicable accounting
requirements of the Securities Act and the related published Rules and
Regulations;
(ii) they have made a review of any unaudited financial
statements included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section in accordance
with standards established by the American Institute of Certified
Public Accountants, as indicated in their report or reports attached
to such letter;
(iii) on the basis of the review referred to in (ii) above, a
reading of the latest avail able interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included in
the Prospectus and not covered by their letter delivered pursuant
to subsection (a) of this Section do not comply in form in all
material respects with the applicable accounting requirements of
the Securities Act and the related published Rules and
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included in the
Prospectus;
(B) the unaudited capsule information, if any, included in
the Prospectus does not
-21-
agree with the amounts set forth in the unaudited consolidated
financial statements from which it was derived or was not deter
mined on a basis substantially consistent with that of the
audited financial statements included in the Prospectus;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five days prior to the Closing Date, there was any change in
the capital stock or any increase in short-term indebtedness or
long-term debt of the Company and consolidated subsidiaries or,
at the date of the latest available balance sheet read by such
accoun tants, there was any decrease in consolidated total
assets, total deposits, reserves for loan losses or stockholders'
equity or any change in the reserve for loan losses or other real
estate, as compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year, and with the period of corres ponding length
ended the date of the latest income statement included in the
Prospectus, in consolidated net interest income, net interest
income after provision for loan losses, other income or in the
ratio of earnings to fixed charges or in the total or per share
amounts of income or net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or
-22-
may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Sec tion (in each case
to the extent that such dollar amounts, percentages and other
financial informa tion are derived from the general accounting
records of the Company and its subsidiaries sub ject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for the purposes of this subsection.
The Company will furnish the Representatives with such con formed copies of
such opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will indemnify
--------------------------------
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act 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 any material fact contained
in the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise
-23-
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 will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that 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 an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any, specifically for
use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act 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 any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, 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 such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of
-24-
any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under subsection (a) or (b) above, notify
the indemnifying party 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 other wise than under subsection (a) or (b)
above. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying party
has failed within a reasonable time to retain counsel reasonably satisfactory to
the indemnified party or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify any indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
-25-
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in sub section (a) or (b) above (i)
in such proportion as is appro priate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the alloca tion provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indem nified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this sub section (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwith standing the provisions of this subsection (d), no
Under writer 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
-26-
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omis sion or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Securities Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Securities Act.
7. Default of Underwriters. If any Underwriter or Underwriters
-----------------------
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Under writers, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and
-27-
arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities by other persons are not made within 36 hours after
such default, such Terms Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Company, except as provided in Section
8. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Under writer under this Section. Nothing herein will relieve
a defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the [principal amounts] [numbers of shares] of the
Securities set forth opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement speci fies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, represen tations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Under writer, the Company or any of their
respective representa tives, officers or directors or any controlling person
and will survive delivery of and payment for the Securities. If the Terms
Agreement is terminated pursuant to Section 7 or if for any reason the purchase
of the Securities by the Underwriters under the Terms Agreement is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 7 or the occurrence of any event specified in clause (iii), (iv) or
-28-
(v) of Section 5(c), the Company will reimburse the Under writers for all out-
of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
-------
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their addresses furnished to the Company in writing for the pur pose
of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Xxxxx X. Xxxxxxx, Chief Financial
Officer
10. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the Company and such Under writers as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
--------------
governed by, and construed in accordance with, the laws of the State of New
York.
-29-
ANNEX I
FIRST SECURITY CORPORATION
[Insert title of securities]
TERMS AGREEMENT
[Date]
First Security Corporation
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxx,
Chief Financial Officer
Dear Ladies and Gentlemen:
We offer to purchase, on and subject to the terms and conditions of
the Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 33-_________), a copy of which is attached hereto
("Underwriting Agreement"), the following Securities ("Securities") on the
following terms:
[Insert if Debt Securities --
-----------------------------
Title:
-----
Aggregate principal amount to be purchased: $ .
------------------------------------------
Purchase price to Underwriters (include accrued interest and
------------------------------
amortization, if any): $ .
[Sinking fund provisions: [None] [ ].]
------------------------
[Securities into which convertible: .
----------------------------------
-30-
Conversion price: .]
----------------
Interest Rate: % per annum.
-------------
Interest Payment Date[s]: [ , ,]
------------------------
[ and] of each year,
commencing .
Date of Maturity: , .
----------------
Indenture: Indenture dated , 199 , between the
---------
Company and , as Trustee.
[Defeasance provisions: .]
---------------------
[Other provisions:]]
----------------
[Insert if Preferred Stock --
----------------------------
Title: .
-----
Number of shares of Preferred Stock to be purchased:
---------------------------------------------------
Purchase Price to public (include accrued dividends, if
------------------------
any): $ per share of Preferred Stock.
Purchase Price to Underwriters (include accrued dividends,
------------------------------
if any): $ per share of Preferred Stock.
Liquidation preference: $ per share of Preferred
----------------------
Stock.
Annual Dividend: % of liquidation preference, payable
---------------
[annually] [semi-annually] [quarterly] on [ ,
] [ and] ,
commencing .
[Conversion rate: .]
----------------
[Sinking fund provisions: [None] [ ].]
------------------------
-2-
[Redemption provisions: [None] [ ].]
---------------------
[Other provisions:]]
----------------
[Insert if Common Stock --
-------------------------
Number of shares: .
----------------
Purchase price per share to the public: $ per share.
--------------------------------------
Purchase price per share to the Underwriters: $ per share.]
--------------------------------------------
[Insert if Warrants --
---------------------
Title: .
-----
Number: .
------
Securities issuable upon exercise of one Warrant: .
------------------------------------------------
Warrant exercise price: $ per Warrant.
-----------------------
Date after which Warrants are exercisable: , .
-----------------------------------------
Expiration Date: , .
---------------
Warrant Agent: .
-------------
[Other Provisions:]]
-----------------
Closing: :00 A.M., , 199 , at ,
-------
, in same day funds or such other time and
place as may be agreed to by the Representative[s] and the
Company.
Names and Addresses of the Underwriters:
---------------------------------------
-3-
The provisions of the Underwriting Agreement are incorporated herein
by reference. The Securities will be made available for checking and packaging
at the office of _________________________________________________ at least 24
hours prior to the Closing.
If the foregoing offer is acceptable to you, please sign where
indicated below, whereupon this Agreement will be a binding agreement between
us.
Very truly yours,
X.X. XXXXXX SECURITIES INC.
CS FIRST BOSTON CORPORATION
on behalf of the several
Underwriters
By: X.X. XXXXXX SECURITIES INC.
By:___________________________
We accept the above offer relating to [$_________ principal amount] [[_________]
shares] of our [Title of Securities].
FIRST SECURITY CORPORATION
By: __________________________
By: __________________________
By: __________________________
-4-
ANNEX II
(Three copies of this Delayed Delivery Contract
----------------------------------------------
should be signed and returned to the address
--------------------------------------------
shown below so as to arrive not later than
------------------------------------------
9:00 A.M., New York time, on
----------------------------
________________ ___, 19__*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public
-----------------------------
offering]
--------
First Security Corporation
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
c/o X.X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: [Insert name of JPM
------------------
Corporate Finance Officer]
-------------------------
Gentlemen:
The undersigned hereby agrees to purchase from First Security
Corporation, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
------------------------------
delivery on ______________, 19__ ("Delivery Date"),]
[$]______________
------------
* Insert date which is third full business day prior to Closing Date under
------------------------------------------------------------------------
the Terms Agreement.
-------------------
[principal amount] [shares] of the Company's [Insert title of securities]
--------------------------
("Securities"), offered by the Company's Prospectus dated __________, 19__ and a
Prospectus Supplement dated __________, 19__ relating thereto, receipt of copies
of which is hereby acknowledged, at [___% of the principal amount thereof plus
accrued interest, if any,] [$_____ per share] and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
------------------------------------------------------
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the [principal amounts]
[numbers of shares] set forth below:
[Principal Amount]
----------------
Delivery Date [Number of Shares]
------------- ----------------
_____________________ ___________
_____________________ ___________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order by wire transfer in Federal (immediately available) funds at the office of
____________________ at ______.M. on--the--such--Delivery Date upon delivery to
the undersigned of the Securities to be purchased by the undersigned--for
delivery on such Delivery Date--in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
-2-
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the 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--copies--of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective succes sors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract 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 requested 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.
-3-
This will become a binding contract between the Company and the undersigned when
such counterpart is so mailed or delivered.
Yours very truly,
_____________________________
(Name of Purchaser)
By _________________________
_________________________
(Title of Signatory)
_________________________
_________________________
(Address of Purchaser)
Accepted, as of the above date.
X.X. XXXXXX SECURITIES INC.
By _____________________
[Insert Title]
-4-
