FORM OF UNDERWRITING AGREEMENT (PREFERRED STOCK, DEPOSITARY SHARES AND COMMON STOCK) MORGAN STANLEY
FORM
OF
(PREFERRED
STOCK, DEPOSITARY SHARES AND COMMON STOCK)
XXXXXX
XXXXXXX
_________,
20__
To the
Managers named in Schedule I hereto
for the
Underwriters named in Schedule II hereto
Ladies and
Gentlemen:
Xxxxxx
Xxxxxxx, a Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you
are acting as managers (the “Managers”), the number of its
[shares of its ___% Cumulative Preferred Stock, par value $.01 per share, stated
value $____ per share (“Preferred Shares”)]1
[Depositary Shares, each representing a [fraction] interest in its __%
Cumulative Preferred Stock, par value $.01 per share, stated value $______ per
share (“Depositary
Shares”)]2 [shares
of its common stock, par value $.01 per share (“Common Stock,” and the shares
of Common Stock that are the subject of this Agreement are referred to as the
“Common Shares”)]3
identified in Schedule I hereto (the “Firm Offered Securities”). The
Company also proposes to issue and sell to the Underwriters not more than any
additional number of its [shares of [“Preferred Shares”/“Depositary Shares”/“Common Stock”]4
identified in Schedule I hereto (the “Additional Offered
Securities”) if and to the extent that you shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such Additional
Capital Securities granted to the Underwriters herein. The Firm Offered
Securities and the Additional Offered Securities are hereinafter collectively
referred to as the “Offered
Securities.” If the firm or firms listed in Schedule II hereto include
only the Managers listed in Schedule I hereto, then the terms “Underwriters” and
“Managers” as used herein shall each be deemed to refer to such firm or
firms.
[The
Depositary Shares will be issued by ______________ (the “Depositary”) pursuant
to the terms of a Deposit Agreement (the “Deposit Agreement”) to be entered into
among the Company, the Depositary, and the holders from time to time of
Depositary Receipts issued thereunder. The Depositary Shares will be evidenced
by Depositary Receipts issued pursuant to the Deposit Agreement (the “Depositary
Receipts”). The shares of the Company’s ___%
1 Include only for issuances of Preferred
Stock.
2 Include only for issuances of Depositary
Shares representing interests in Preferred stock.
3 Include only for issuances of Common
Stock.
4 Delete as
appropriate.
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement including a prospectus (the file number of which is set forth in
Schedule I hereto) relating to, among other securities, the Offered Securities
[and any Underlying Preferred Shares] and has filed with, or transmitted for
filing to, or shall promptly after the date of this Agreement file with or
transmit for filing to, the Commission a prospectus supplement (in the form
first used to confirm sales of the Offered Securities (or in the form first made
available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act), the “Prospectus Supplement”)
pursuant to Rule 424 under the Securities Act of 1933, as amended (the “Securities Act”). The term
“Registration Statement” means the
registration statement as amended to the date of this Agreement, including the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act.
The term “Basic Prospectus” means the
prospectus relating to the Offered Securities [and any Underlying Preferred Shares]
included in the Registration Statement, in the form first used to confirm sales
of the Offered Securities (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act). The term “Prospectus” means the Basic
Prospectus together with the Prospectus Supplement. The term “preliminary prospectus” means
a preliminary prospectus supplement specifically relating to the Offered
Securities [and any Underlying Preferred Shares] together with the Basic
Prospectus. The term “free
writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act. The term “Time
of Sale Prospectus” means the Basic Prospectus and the other documents or
information each identified in Schedule I hereto. The term “broadly available road show”
means a “bona fide electronic
road show” as defined in Rule 433(h)(5) under the Securities Act that has
been made available without restriction to any person. As used herein, the terms
“Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of
Sale Prospectus,” and “Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms “supplement,” “amendment” and “amend” as used herein with
respect to the Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus or any preliminary prospectus or free writing prospectus shall
include all documents deemed to be incorporated by reference therein that are
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
1.
Representations
and Warranties. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a)
The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect; and no proceedings for
such purpose are pending before or threatened by the Commission. If the
Registration Statement is an automatic shelf registration statement as defined
in Rule 405 under the Securities Act, the Company is a well-known seasoned
issuer (as defined in Rule 405 under the Securities Act) and the Company is
eligible to use the Registration Statement as an automatic shelf registration
statement and the Company has not received
5 Include only for issuances of Depositary
Shares representing interests in Preferred Stock.
2
(b)
Any
preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with the
Securities Act and the rules and regulations of the Commission
thereunder.
(c)
(i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable, will
not contain any 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, (iii) the Registration Statement as of the date hereof does not
contain any 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, (iv) the Registration Statement and the Prospectus comply, and as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time
of each sale of the Securities in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing
Date or the Option Closing Date, as the case may be, the Time of Sale
Prospectus, as then amended or supplemented by the Company, if applicable, will
not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (vi) each broadly available road
show, if any, when considered together with the Time of Sale Prospectus, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (vii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to (A) statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information concerning any Underwriter furnished to the Company in writing by
such Underwriter through the Managers expressly for use therein or (B) those
parts of the Registration Statement that constitute the Statements of
Eligibility (Forms T-1) under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), of the trustees referred to in the Registration
Statement.
(d)
The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance
with the
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(e)
The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole.
(f)
Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole; all of the issued
shares of capital stock of each consolidated subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(g)
The
authorized capital stock of the Company, the Offered Securities, any Underlying
Preferred Shares, any Depositary Shares and any Deposit Agreement conform as to
legal matters to the descriptions thereof contained in the Time of Sale
Prospectus.
(h)
In the
case of Offered Securities that are Common Shares, the shares of the Company’s
Common Stock outstanding prior to the issuance of the Offered Securities have
been duly authorized and are validly issued, fully paid and non-assessable; and
there are no persons with registration or other similar rights granted by the
Company to require that any of the Company’s equity or debt securities be
registered for sale under the Registration Statement or included in the
offering, except for such rights as have been duly waived.
(i)
The
Preferred Shares, the Underlying Preferred Shares or the Common Shares, as the
case may be, have been duly authorized by the Company and, when
such
4
(j)
In the
case of Offered Securities that are Depositary Shares, the deposit of the
Underlying Preferred Shares by the Company in accordance with any Deposit
Agreement has been duly authorized and, when the Depositary Shares are issued
and delivered in accordance with the terms of this Agreement, the Depositary
Shares will represent legal and valid interests in the Underlying Preferred
Shares.
(k)
Assuming
due authorization, execution and delivery of any Deposit Agreement by the
Depositary, each Depositary Share, if any, will represent the interest described
in the Time of Sale Prospectus in a validly issued, outstanding, fully paid and
non-assessable Underlying Preferred Share; assuming due execution and delivery
of the Depositary Receipts, if any, by the Depositary pursuant to such Deposit
Agreement, the Depositary Receipts will entitle the holders thereof to the
benefits provided therein and in the Deposit Agreement.
(l)
This
Agreement has been duly authorized, executed and delivered by the Company.
(m)
The
Deposit Agreement, if any, has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company.
(n)
The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, any certificate of designation relating
to the Preferred Shares or the Underlying Preferred Shares, as the case may be
(the “Certificate of Designation”), and the Deposit Agreement, if any, will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Company or
any of its consolidated subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement, the
Certificate of Designation, if any, and the Deposit Agreement, if any, except
such as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities; provided, however, that no
representation is made as to whether the purchase of the Offered Securities
constitutes a “prohibited transaction” under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended.
5
(p)
There are
no legal or governmental proceedings pending or threatened to which the Company
or any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is subject (i)
other than proceedings accurately described in all material respects in the Time
of Sale Prospectus and proceedings that would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, or on the power or
ability of the Company to perform its obligations under this Agreement, the
Deposit Agreement or the Offered Securities or to consummate the transactions
contemplated by the Time of Sale Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are not so
described; and there are no statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(q)
The
Company is not, and after giving effect to the offering and sale of the
Preferred Shares, the Underlying Preferred Shares or the Common Shares, as the
case may be, and the application of the proceeds thereof as described in the
Prospectus will not be required to register as, an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
(r)
Each of
the Company and its consolidated subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Time of Sale Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its consolidated subsidiaries, taken
as a whole.
(s)
Xxxxxx
Xxxxxxx & Co. Incorporated is registered as a broker-dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the Financial Industry Regulatory Authority,
Inc.
2.
Agreements to Sell and
Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from the Company the number of
Firm Offered Securities set forth in Schedule II hereto opposite its name at the
purchase price set forth in Schedule I hereto.
In
addition, subject to the terms and conditions set forth herein, the Company
hereby agrees to sell to the Underwriters the Additional Offered Securities and
the Underwriters
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3.
Public Offering. The
Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Offered Securities as soon
after this Agreement has become effective as in your judgment is advisable. The
Company is further advised by you that the Offered Securities are to be offered
to the public upon the terms set forth in the Prospectus.
4.
Purchase and
Delivery. Payment for the Firm Offered Securities shall be made to the Company in
Federal or other funds immediately available in New York City at the closing
time and place set forth in Schedule I hereto, or at such other time on the same
or such other date, not later than the fifth business day thereafter, as may be
designated by you in writing. The time and date of such payment are hereinafter
referred to as the “Closing
Date.”
Payment
for any Additional Offered Securities shall be made to the Company in Federal or
other funds immediately available in New York City at the closing place referred
to above on such date of your determination (which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor later
than ten business days after the giving of the notice hereinafter referred to)
as shall be designated in a written notice from you to the Company, on behalf of
the Underwriters, to purchase a number, specified in said notice, of Additional
Offered Securities, or on such other date as shall be designated in writing by
you. In any event, such payment date shall be not later than __________, 20__.
The time and date of such payment are hereinafter referred to as the “Option Closing Date.” The
notice of the determination to exercise the option to purchase Additional
Offered Securities and of the Option Closing Date may be given at any time
within 30 days after the date of this Agreement.
Payment
for the Firm Offered Securities or any Additional Offered Securities shall be
made against delivery to you on the Closing Date or the Option Closing Date, as
the case may be, for the respective accounts of the several Underwriters, of the
Firm Offered Securities or any Additional Capital Securities, as the case may
be, registered in such names and in such denominations as you shall request in
writing not later than one full business day prior to the Closing Date or the
Option Closing Date, as the case may be, with any transfer taxes payable in
connection with the transfer of the Firm Offered Securities or any Additional
Offered Securities, as the case may be, to the Underwriters duly
paid.
7
(a)
Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date,
(i) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the securities of the Company or in the rating
outlook for the Company by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its consolidated subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus as of the date of this
Agreement that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Offered Securities on the terms and
in the manner contemplated in the Time of Sale Prospectus.
(b)
The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the effect
set forth in clause (a)(i) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct as of
the Closing Date and that the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied on
or before the Closing Date.
The
executive officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c)
The Underwriters shall have received on the Closing Date an opinion of Xxxxx
Xxxx & Xxxxxxxx, counsel to the Company, or of other counsel satisfactory to
you and who may be an officer of the Company, dated the Closing Date, to the
effect that:
(i) the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole;
(ii) each of
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Xxxxxxx International Holdings
Inc. (the “Material
Subsidiaries”) has been duly
8
(iii) each of
the Company and its Material Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Time of Sale Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its consolidated subsidiaries, taken
as a whole;
(iv) the
authorized capital stock of the Company, the Offered Securities, any Underlying
Preferred Shares, any Depositary Shares and any Deposit Agreement conform as to
legal matters to the descriptions thereof contained in the Time of Sale
Prospectus;
(v) in the
case of Offered Securities that are Common Shares, the shares of the Company’s
Common Stock outstanding prior to the issuance of the Offered Securities have
been duly authorized and are validly issued, fully paid and non-assessable;
there are no persons with registration or other similar rights granted by the
Company to require that any of the Company’s equity or debt securities be
registered for sale under the Registration Statement or included in the
offering, except for such rights as have been duly waived;
(vi) the
Preferred Shares, the Underlying Preferred Shares or the Common Shares, as the
case may be, have been duly authorized and, when such shares are issued and
delivered as contemplated by the terms of this Agreement, such shares will be
validly issued, fully paid and non-assessable, and the issuance of such shares
is not subject to any preemptive or similar rights; in the case of Preferred
Shares that are convertible into Common Stock, the shares of Common Stock into
which the Preferred Shares are convertible have been duly authorized and
reserved, and, when issued upon conversion of the Preferred Shares in accordance
with their terms, will be validly issued, fully paid and non-assessable, and the
issuance of such shares will not be subject to any preemptive or similar
rights;
(vii) in the
case of Offered Securities that are Depositary Shares, the deposit of the
Underlying Preferred Shares by the Company in accordance with any Deposit
Agreement has been duly authorized and, when the Depositary
9
(viii) assuming
due authorization, execution and delivery of any Deposit Agreement by the
Depositary, each Depositary Share, if any, will represent the interest described
in the Time of Sale Prospectus in a validly issued, outstanding, fully paid and
non-assessable Underlying Preferred Share; assuming due execution and delivery
of the Depositary Receipts, if any, by the Depositary pursuant to such Deposit
Agreement, the Depositary Receipts will entitle the holders thereof to the
benefits provided therein and in the Deposit Agreement;
(ix) this
Agreement has been duly authorized, executed and delivered by the
Company;
(x) the
Deposit Agreement, if any, has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company;
(xi) the
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Certificate of Designation, if any,
and the Deposit Agreement, if any, will not contravene any provisions of
applicable law or the certificate of incorporation or by-laws of the Company or,
to the best of such counsel’s knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its consolidated subsidiaries, taken as a whole, or, to the best of
such counsel’s knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval, authorization or order of
or qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Certificate of Designation, if any, and the Deposit Agreement, if any, except
such as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities; provided, however, that such counsel
need not express an opinion as to whether the purchase of the
Offered Securities constitutes a “prohibited transaction” under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended;
(xii) the
statements relating to legal matters, documents or proceedings included in (A)
the Time of Sale Prospectus and the Basic Prospectus under “Description of
Capital Stock” and “Plan of Distribution,” (B) the Time of Sale Prospectus, if
applicable, and the Prospectus Supplement under “Description of Cumulative
Preferred Stock,” “Description of Depositary Shares” or “Description of Offered
Common Stock,” as the case may be, and under “Dividend Policy” and
“Underwriters,” (C) in the Registration Statement under Item 15, (D) in “Item 3.
Legal Proceedings” of the most recent annual report on Form 10-K
incorporated
10
(xiii) after due
inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the Company or any
of its consolidated subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated by reference as required;
(xiv) the
Company is not, and after giving effect to the offering and sale of the
Preferred Shares, the Underlying Preferred Shares or the Common Shares, as the
case may be, and the application of the proceeds thereof as described in the
Prospectus will not be required to register as, an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended;
(xv) such
counsel is of the opinion ascribed to it under the caption “United States
Federal Income Tax Consequences” in the Time of Sale Prospectus, if applicable,
and the Prospectus Supplement; and
(xvi) (A) in the
opinion of such counsel (1) each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus
(except for the financial statements and financial schedules and other financial
and statistical data included therein, as to which such counsel need not express
any opinion) appeared on its face to be appropriately responsive as of its
filing date in all material respects to the requirements of the Exchange Act and
the applicable rules and regulations of the Commission thereunder and (2) the
Registration Statement and the Prospectus (except for the financial statements
and financial schedules and other financial and statistical data included
therein and except for those parts of the Registration Statement that constitute
the Forms T-1, as to which such counsel need not express any opinion) appear on
their face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder, and (B) nothing has come to the attention of such
counsel that causes such counsel to believe that (1) any part of the
Registration Statement, when such part became effective (except for the
financial statements and financial schedules and other financial and statistical
data included therein and except for those parts of the Registration Statement
that constitute Forms T-1, as to which such counsel need not express any belief)
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not
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(d)
The Underwriters shall have received on the Closing Date an opinion of Sidley
Austin LLP, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to in
Sections 5(c)(iv), 5(c)(v), 5(c)(vi), 5(c)(vii), 5(c)(viii), 5(c)(ix), 5(c)(x),
clauses (A) and (B) of Section 5(c)(xii) and Sections 5(c)(xvi)(B)(2),
5(c)(xvi)(B)(3) and 5(c)(xvi)(B)(4).
With
respect to Section 5(c)(xvi) above, if such opinion is given by counsel who is
also an officer of the Company, such counsel may state that his or her opinion
and belief are based upon his or her participation, or the participation of
someone under his or her supervision, in the preparation of the Registration
Statement, Time of Sale Prospectus and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified. With respect to Section 5(c)(xvi) above,
Sidley Austin LLP and, if
Xxxxx Xxxx & Xxxxxxxx is giving such opinion, Xxxxx Xxxx & Xxxxxxxx may
state that their opinions and beliefs are based upon their participation in the
preparation of the Registration Statement, Time of Sale Prospectus, Prospectus,
preliminary prospectus supplement, if any, any free writing prospectuses
identified in Schedule I hereto (but not including documents incorporated
therein by reference) and review and discussion of the contents of the
Registration Statement, the Time of Sale Prospectus and the Prospectus
(including documents incorporated by reference), but are without independent
check or verification except as specified.
The
opinion of Xxxxx Xxxx & Xxxxxxxx, or any other outside counsel to the
Company, described in Section 5(c) above shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
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(f)
In the
case of Offered Securities that are Common Shares or Preferred Shares
convertible into Common Stock, the Manager shall have received “lock-up”
agreements, each substantially in the form of Exhibit A hereto, between the
Manager and certain shareholders, officers and directors of the Company relating
to sales and certain other dispositions of shares of Common Stock or certain
other securities, delivered to the Manager on or prior the date of this
Agreement, and each such lock-up agreement shall be in full force and effect on
the Closing Date.
The
several obligations of the Underwriters to purchase Additional Offered
Securities hereunder are subject to the delivery to you on the Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Offered Securities and other matters related to the issuance of the Additional
Offered Securities.
6.
Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a)
To furnish
to you without charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference therein) and to deliver
to each of the Underwriters during the period mentioned in Section 6(e) or 6(f)
below, as many copies of the Time of Sale Prospectus, the Prospectus, any
documents incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(b)
Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object.
(c)
To furnish
to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which you reasonably object.
(d)
Not to
take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to file
thereunder.
13
(f)
If, during
such period after the first date of the public offering of the Offered
Securities as in the opinion of counsel for the Underwriters the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) under the Securities Act)
is required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition shall exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is delivered to a purchaser, not misleading, or if in the
opinion of counsel for the Underwriters it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission, and furnish, at the Company’s own expense, to the Underwriters
and to the dealers (whose names and addresses you will furnish to the Company)
to which Offered Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus, so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the
Securities Act) is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable
law.
(g) To
endeavor to qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(h) To make
generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the date
of this Agreement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
14
(i)
To use its best efforts to accomplish the listing of the Offered
Securities on the New York Stock Exchange and, in the case of Offered Securities
that are Common Shares, the Pacific Exchange.
(j)
In the
case of Offered Securities that are Preferred Shares or Depositary Shares,
during the period beginning on the date of this Agreement and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any preferred stock of the Company, as the case may be, substantially
similar to the Offered Securities (other than the Offered Securities), without
the prior written consent of the Manager.
(k) In the
case of Offered Securities that are Common Shares, during the period beginning
on the date of this Agreement and continuing to and including [90] days after
the date of the Prospectus, not (i) to offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether such transaction described in clause (i) or (ii) above is to be
settled by delivery of the Common Stock or such other securities, in cash or
otherwise, without the prior written consent of the Manager. The restrictions
contained in the preceding sentence shall not apply to (i) the Common Shares to
be sold hereunder or (ii) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a restricted
stock unit or other security outstanding on the date of this Agreement of which
the Manager has been advised in writing.
(l)
Whether or
not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of the Company’s obligations under this Agreement, including: (i)
the fees, disbursements and expenses of the Company’s counsel and the Company’s
accountants in connection with the registration and delivery of the Offered
Securities under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including the filing
fees payable to the Commission relating to the Offered Securities (within the
time required by Rule 456 (b)(1), if applicable), all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Offered Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the Offered Securities
for offer and sale under state securities laws as provided in Section 6(g)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification
and
15
in connection with the Blue Sky or legal investment memorandum, (iv)
all filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the
offering of the Offered Securities by the Financial Industry Regulatory
Authority, Inc., (v) any fees charged by the rating agencies for the rating of
the Offered Securities, [(vi) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the
Offered Securities and all costs and expenses incident to listing the Offered
Securities on the New York Stock Exchange] (vii) the cost of the preparation,
issuance and delivery of the Offered Securities, (viii) the costs and charges of
any trustee, transfer agent, registrar or depositary, (ix) the costs and
expenses of the Company relating to investor presentations on any “road show”
undertaken in connection with the marketing of the offering of the Offered
Securities, including, without limitation, expenses associated with the
preparation or dissemination of any electronic road show, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (x) the
document production charges and expenses associated with printing this Agreement
and (xi) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in this
Section, Section 8 entitled “Indemnity and Contribution,” and the last paragraph
of Section 10 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, transfer taxes payable on
resale of any of the Offered Securities by them and any advertising expenses
connected with any offers they may make.
(m)
If the
third anniversary of the initial effective date of the Registration Statement
occurs before all the Offered Securities have been sold by the Underwriters,
prior to the third anniversary to file a new shelf registration statement and to
take any other action necessary to permit the public offering of the Offered
Securities to continue without interruption; references herein to the
Registration Statement shall include the new registration statement declared
effective by the Commission.
(n)
To
prepare, if the Managers so request, a final term sheet relating to the offering
of the Offered Securities, containing only information that describes the final
terms of the Offered Securities or the offering in a form consented to by you,
and to file such final term sheet within the period required by Rule
433(d)(5)(ii) under the Securities Act following the date the final terms have
been established for the offering of the Offered Securities.
7.
Covenants of the
Underwriters. Each Underwriter severally covenants with the Company not to
take any action that would result in the Company being required to file with the
Commission under Rule 433(d) a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the
Company thereunder, but for the action of the Underwriter.
16
(b)
Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any free writing prospectus or the Prospectus or any amendment or supplement
thereto.
(c)
In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly
notify the person against whom such indemnity may be sought (the “indemnifying
party”) in writing and 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 disbursements 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
retention of such counsel or (ii) the named parties to 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. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are
17
(d)
To the extent the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Offered
Securities or (ii) if the allocation provided by clause 8(d)(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 8(d)(i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters bear to the aggregate initial public
offering price of the Offered Securities as set forth in the Prospectus. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters’
18
(e)
The
Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f)
The
indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter, any person controlling any Underwriter or any
affiliate of any Underwriter or by or on behalf of the Company, the officers or
directors of the Company or any person controlling the Company and (iii)
acceptance of and payment for any of the Offered Securities.
9.
Termination. The
Underwriters may terminate this Agreement by notice given by you to the
Company if, after the execution and delivery of this Agreement and prior to the
Closing Date, (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, The
NASDAQ Stock Market LLC, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a material disruption in securities settlement,
payment or clearance services in the United States [or other relevant
jurisdiction] shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets (or, if the Offered Securities are denominated in a
currency other than U.S. dollars, any change in currency exchange rates or
controls) or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in your judgment, impracticable or inadvisable to
proceed
19
10.
Effectiveness;
Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto. If, on the Closing Date or
the Option Closing Date, as the case may be, any one or more of the Underwriters
shall fail or refuse to purchase Offered Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of the
Offered Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Offered
Securities set forth opposite their respective names in Schedule II hereto bears
to the aggregate number of Firm Offered Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Offered Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Offered
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Offered Securities and the aggregate number of Firm Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Offered Securities to be purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such Firm Offered
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement, in the Time of
Sale Prospectus, in the Prospectus or in any other documents or arrangements may
be effected. If, on the Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Offered Securities and the aggregate
number of Additional Offered Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Offered
Securities to be purchased on such date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Additional Offered Securities or (ii) purchase not less than the number of
Additional Offered Securities that such non-defaulting Underwriters would have
been obligated to purchase in the absence of such default. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this
Agreement shall be terminated by the Underwriters, or any of them, because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
20
(b) The
Company acknowledges that in connection with the offering of the Offered
Securities: (i) the Underwriters have acted at arms length, are not agents of,
and owe no fiduciary duties to, the Company or any other person, (ii) the
Underwriters owe the Company only those duties and obligations set forth in this
Agreement and prior written agreements (to the extent not superseded by this
Agreement), if any, and (iii) the Underwriters may have interests that differ
from those of the Company. The Company waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the Offered
Securities.
12.
Counterparts. This
Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
13.
Applicable Law. This
Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
14.
Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
15.
Notices. All
communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the
address set forth in Schedule I hereto; and if to the Company shall be
delivered, mailed or sent to the address set forth in Schedule I
hereto.
21
|
Very
truly yours,
|
|||
|
XXXXXX
XXXXXXX
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Accepted
as of the date hereof
[NAME[S]
OF [CO-]MANAGER[S]]
Acting
severally on behalf of [itself][themselves] and
the
several Underwriters named in Schedule II hereto
|
By:
|
[Name[s] of [Co-]Manager[s]] | ||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
[FORM OF
LOCK-UP LETTER]
_______
__, 20__
Xxxxxx
Xxxxxxx & Co. Incorporated
[Name of
other Lead Managers]
c/o Morgan
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx Xxxx,
XX 00000
Dear
Sirs:
The
undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (“MS &
Co.”) proposes to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with Xxxxxx Xxxxxxx, a Delaware corporation (the “Company”),
providing for the public offering (the “Public Offering”) by the several
Underwriters, including MS & Co. (the “Underwriters”), of [___shares (the
“Shares”) of the common stock, par value $.01 per share, of the Company (the
“Common Stock”)] [____ shares of the Company’s __% Cumulative Preferred Stock,
par value $.01 per share, stated value $______ per share (the “Preferred
Stock”), convertible into the common stock, par value $.01 per share, of the
Company (the “Common Stock”)].
To induce
the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees
that, without the prior written consent of MS & Co. on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending [90] days after the date of the final prospectus relating to the Public
Offering (the “Prospectus”), (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (a) the sale of any [Shares/Preferred
Stock] to the Underwriters pursuant to the Underwriting Agreement or (b)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering. In
addition, the undersigned agrees that, without the prior written consent of MS
& Co. on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending [90] days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of the undersigned’s shares of Common
Stock except in compliance with the foregoing restrictions.
A-1
Whether or
not the Public Offering actually occurs depends on a number of factors,
including market conditions. Any Public Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation between
the Company and the Underwriters.
| Very truly yours, | |
|
(Name)
|
|
|
(Address)
|
A-2
SCHEDULE
I
|
Managers:
|
[Xxxxxx
Xxxxxxx & Co. Incorporated/
Xxxxxx
Xxxxxxx & Co. International plc]
[additional
Managers]
|
|
|
Manager
authorized to release lock-up under Section 6(k): [Xxxxxx Xxxxxxx &
Co. Incorporated/Xxxxxx Xxxxxxx & Co. International
plc]
|
||
|
Manager
authorized to appoint counsel under Section 8(c): [Xxxxxx Xxxxxxx &
Co. Incorporated/Xxxxxx Xxxxxxx & Co. International
plc]
|
||
|
Registration
Statement File No.:
|
333-_______
|
|
|
Time
of Sale Prospectus:
|
A.
Basic Prospectus dated __________, 20__
B.
preliminary prospectus dated __________, 20__ relating to the
Securities
C.
[free writing prospectus containing a description of terms that does not
reflect final terms, if the Time of Sale Prospectus does not include a
final term sheet]
D.
[Identify all free writing prospectuses filed by the Company under Rule
433(d) of the Securities Act]
E.
[orally communicated pricing information to be included on Schedule I if a
final term sheet is not used] [to be discussed]
|
|
|
Offered
Securities:
|
[name
of offered securities]
|
|
|
[CUSIP/ISIN/Common
Code: (if applicable)]
|
[●]
|
|
|
Aggregate
Number of Firm Offered
|
[●]
|
I-1
|
Securities:
|
||
|
Aggregate
Number of Additional Offered Securities:
|
Up
to [●]
|
|
|
Aggregate
Number of Offered Securities (if the Underwriters’ over-allotment option
is exercised in full):
|
[●]
|
|
|
Purchase
Price:
|
$_____
per Offered Security, plus accumulated distributions, if any,
from __________, 20__ to the date of payment and
delivery
|
|
|
Price
to Public:
|
$[●]
|
|
|
Underwriters’
Compensationper Offered Security:
|
$.[●]
|
|
|
Selling
Concession per Offered Security:
|
$.[●]
|
|
|
Reallowance
per Offered Security:
|
$.[●]
|
|
|
Terms
of [Underlying] Preferred Shares:
|
||
|
[Original
Issue Date:]
|
||
|
[Dividend
Rate:]
|
____%
per annum, accruing from ________, 20__
|
|
|
[Dividend
Payment Dates:]
|
|
[Redemption
Provisions:]
|
||
|
[Conversion/Exchange
Provisions:]
|
||
|
[Other
Terms:]
|
||
|
[Terms
of Depositary Shares]:
|
||
|
[Original
Issue Date:]
|
||
|
[Dividend
Rate:]
|
____%
per annum, accruing from ________, 20__
|
|
|
[Dividend
Payment Dates:]
|
I-2
|
[Liquidation
Preference:]
|
$_____
per share (equivalent to $____ per Underlying Preferred
Share)
|
|
|
[Redemption
Provisions:]
|
||
|
[Other
Terms:]
|
||
|
Closing
Date and Time:
|
_____________________,
20__ __:__ a.m.
|
|
|
Closing
Location:
|
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Address
for Notices to Underwriters:
|
||
|
Address
for Notices to the Company:
|
I-3
|
Underwriter
|
Number
of Firm
Offered
Securities To
Be
Purchased
|
|
|
[NAMES
OF
MANAGERS]
|
||
|
[NAMES
OF OTHER UNDERWRITERS]
|
||
|
Total
|
II-1
