Exhibit 1(b)
X.X. XXXXXX COMPANY
[$____ DEPOSITARY SHARES
Each Representing [One Quarter] Share of]
CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES __
(par value $.01 per share)
UNDERWRITING AGREEMENT
[Date]
________________,_____
[Names and Addresses of
Representatives]
Ladies and Gentlemen:
X.X. Xxxxxx Company, a Minnesota corporation (the "Company"), proposes to
issue up to _____ shares of its Cumulative [Convertible] Preferred Stock, Series
__, par value $.01 per share, (the "[Convertible] Preferred Shares"), of which
_________ [Convertible] Preferred Shares would be issued in connection with the
sale of the Firm Shares (as hereinafter defined) and up to _______________
[Convertible] Preferred Shares would be issued in connection with any sale of
Additional Shares (as hereinafter defined).
[The [Convertible] Preferred Shares will, when issued, be deposited by the
Company against delivery of Depositary Receipts ("Depositary Receipts") to be
issued by [_____________], as depositary (the "Depositary"), under a Deposit
Agreement (the "Deposit Agreement") among the Company, the Depositary and the
holders from time to time of the Depositary Receipts issued thereunder. Each
Depositary Receipt will evidence one or more Depositary Shares (as hereinafter
defined), and each Depositary Share will represent [one-quarter] of a
[Convertible] Preferred Share.]
[The Convertible Preferred Shares are convertible by the holders thereof
into shares of common stock, par value $1.00 per share, of the Company (the
"Common Stock"), all as described in the Prospectus referred to below.]
The Company proposes to sell to the several underwriters named in Schedule
I hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representative") ________ of the [[Convertible] Preferred Shares] [Depositary
Shares] (the "Firm Shares"). The Company also proposes to issue and sell to the
several Underwriters not more than an additional _________ of the [[Convertible]
Preferred Shares] [Depositary Shares] (the "Additional Shares") if and to the
extent that the Representatives shall have determined to exercise, on behalf of
the Underwriters, the right to purchase such [[Convertible] Preferred Shares]
[Depositary Shares] granted to the Underwriters in Article II hereof. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"[Depositary] Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the [Convertible] Preferred
Shares [and][,] [the Depositary Shares] [and the shares of Common Stock issuable
upon conversion of the Convertible Preferred Shares], which registration
statement has become effective, and will promptly file with the Commission a
prospectus supplement specifically relating to the [Convertible] Preferred
Shares [and][,] [the Depositary Shares] [and the Common Stock issuable upon
conversion of the Convertible
Preferred Shares] pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Act"). As used in this Agreement, the term "Registration
Statement" means such registration statement, including exhibits, financial
statements, schedules and documents incorporated by reference therein, as
amended to the date hereof. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically relating to the
[Convertible] Preferred Shares [and][,] [the Depositary Shares] [and the Common
Stock issuable upon conversion of the Convertible Preferred Shares] as filed
with the Commission pursuant to such Rule 424. The term "preliminary prospectus"
means any preliminary prospectus supplement specifically relating to the
[Convertible] Preferred Shares [and][,] [the Depositary Shares] [and the Common
Stock issuable upon conversion of the Convertible Preferred Shares] together
with the Basic Prospectus. Any reference herein to any preliminary prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein as of the date of such preliminary prospectus
or the Prospectus, as the case may be.
I.
The Company represents and warrants to 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.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Minnesota, has the
corporate power and authority to own its property and to conduct its business as
described in the 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 subsidiaries, taken as a whole.
(c) Each of [__________] (the "Significant Subsidiaries") has been duly
organized and is a validly existing corporation under the laws of the state of
its incorporation, 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 in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) All of the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and non-assessable, and all outstanding shares of such capital stock are owned
directly or indirectly by the Company free and clear of any security interests,
claims, liens or encumbrances.
(e) The authorized capital stock of the Company [,] [and] the [Depositary]
Shares [, the Depositary Receipts and the Deposit Agreement] conform as to legal
matters to the descriptions thereof contained in the Prospectus.
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[(f) The shares of Common Stock outstanding prior to the issuance of the
Convertible Preferred Shares [represented by the Depositary Shares] to be sold
by the Company have been duly and validly authorized and issued and are fully
paid and non-assessable.]
(g) The [Convertible] Preferred Shares [, and the deposit of [Convertible]
Preferred Shares by the Company in accordance with the Deposit Agreement,] have
been duly authorized and, when the [Convertible] Preferred Shares are issued and
delivered in accordance with the terms of this Agreement, the [Convertible]
Preferred Shares will be validly issued, fully paid and non- assessable, and the
issuance of such [Convertible] Preferred Shares is not subject to any preemptive
or similar rights.
[(h) The shares of Common Stock issuable upon conversion of the Convertible
Preferred Shares have been duly authorized and reserved for issuance upon such
conversion, and, if and when the Convertible Preferred Shares are converted into
shares of Common Stock in accordance with the Certificate of Designation,
Preferences and Rights relating to the Convertible Preferred Shares (the
"Certificate of Designations"), such shares of Common Stock will be validly
issued, fully paid and non-assessable, and the issuance of such shares of Common
Stock will not be subject to any preemptive or similar rights.]
[(i) Assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, each Depositary Share will represent an interest in
[one-quarter] of a validly issued, outstanding, fully paid and non-assessable
[Convertible] Preferred Share; assuming due execution and delivery of the
Depositary Receipts by the Depositary pursuant to the Deposit Agreement, the
Depositary Receipts will entitle the holders thereof to the benefits provided
therein and in the Deposit Agreement.]
(j) This Agreement has been duly authorized, executed and delivered by the
Company.
[(k) The Deposit Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company enforceable
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles.]
(l) The issue and sale of the [Convertible] Preferred Shares, the
compliance by the Company with all of the provisions of the Certificate of
Designation [, Preferences and Rights relating to the Preferred Shares (the
"Certificate of Designations")] [and the Deposit Agreement] and this Agreement
and the consummation of the transactions herein and therein contemplated will
not result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any of its
Significant Subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to which the
Company or any of its Significant Subsidiaries is a party or by which the
Company or any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any
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violation of the provisions of the articles of incorporation or the by-laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their properties; and no consent, approval
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
[Convertible] Preferred Shares or the consummation by the Company of the
transactions contemplated by this Agreement[,] [and] the Certificate of
Designations [and the Deposit Agreement], except such as have been, or will have
been prior to the Closing Date, obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws or National Association of Securities
Dealers, Inc. regulations in connection with the purchase and/or distribution of
the [Depositary Shares] [[Convertible]Preferred Shares] by the Underwriters;
(m) There has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(n) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that are not described
or filed as required.
(o) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in 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 and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder and (iv)
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 (o) do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information concerning any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
II.
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The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto at $___________ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _____________
Additional Shares at the Purchase Price. Additional Shares may be purchased as
provided in Article IV hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Shares. If any Additional
Shares are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares set forth in Schedule I
hereto.
[The Company hereby agrees that, without the prior written consent of the
Representatives, it will not file any registration statement with the Commission
in respect of any shares of Common Stock of the Company or offer, sell, contract
to sell or otherwise dispose of any shares of such Common Stock or any
securities convertible into or exercisable or exchangeable for such Common Stock
for a period of _______ days after the date of this Agreement, other than (i)
the Convertible Preferred Shares, (ii) the shares of Common Stock issuable upon
conversion of the Convertible Preferred Shares, (iii) any shares of such Common
Stock sold upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof, (iv) any shares of such Common Stock
registered, offered or issued, or options in respect of such Common Stock
granted, in connection with any employee benefit plans of the Company or any of
its subsidiaries (including employee benefit plans assumed by the Company or any
of its subsidiaries in connection with an acquisition by the Company), or (v)
any shares of such Common Stock registered, offered or issued in connection with
an acquisition by the Company.]
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the [Depositary] Shares as soon
after this Agreement has been entered into as in your judgment is advisable. The
Company is further advised by you that the [Depositary] Shares are to be offered
to the public initially at $________ per [Depositary] Share (the public offering
price) plus accrued dividends, if any, and to certain dealers selected by you at
a price that represents a concession not in excess of $.____ per [Depositary]
Share under the public offering price, and that the Underwriters may allow, and
such dealers may reallow, a concession, not in excess of $_________ per
[Depositary] Share, to any Underwriter or to certain other dealers.
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IV.
Delivery of the Firm Shares shall be made, against payment therefor in
immediately available funds, at the office of _____________________,
___________________________, _____________________, _________________, at
______________________ A.M., local time, on _____________________, ____, or at
such other time on the same or such other date, not later than
__________________, _____, as shall be designated in writing by you. The time
and date of such delivery and payment are hereinafter referred to as the Closing
Date.
Delivery of any Additional Shares shall be made, against payment therefor
in immediately available funds, at the office of ________________________,
______________________, _______________________, ________________, at
_____________ A.M., local time, on such date (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 the Representatives to the
Company of their determination, on behalf of the Underwriters, to purchase a
number, specified in said notice, of Additional Shares, or on such other date,
in any event not later than _____________________, _____, as shall be designated
in writing by the Representatives. The time and date of such delivery and
payment are hereinafter referred to as the Option Closing Date. The notice of
the determination to exercise the option to purchase Additional Shares 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 Shares and Additional Shares 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 [Depositary
Receipts] [certificates] evidencing the Firm Shares or Additional Shares, as the
case may be, registered in such names and in such denominations as you shall
request in writing not later than two full business days 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 [Depositary] Shares to the
Underwriters duly paid.
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) There shall not have occurred a change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' investment 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, is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the [Depositary Shares] [[Convertible] Preferred
Shares] on the terms and in the manner contemplated in the 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) above and to the effect that the representations
and warranties of the Company contained in
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this Agreement shall be true and correct as of the Closing Date and the Company
shall have performed all of its obligations to be performed hereunder on or
prior to the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion Xxxxxxx X.
Xxxxx, Esq., Corporate Secretary, Vice President and General Counsel 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 Minnesota, has
the corporate power and authority to own its property and to conduct its
business as described in the 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 subsidiaries taken as a whole;
(ii) each Significant Subsidiary has been duly organized and is
validly existing as a corporation under the laws of the state of its
incorporation, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of the 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 subsidiaries, taken
as a whole;
(iii) all the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully
paid and non-assessable, and all outstanding shares of such capital stock
are owned directly or indirectly by the Company free and clear of any
perfected security interest and, to the knowledge of such counsel, after
due inquiry, any other security interests, claims, liens or encumbrances;
(iv) the authorized capital stock of the Company [,] [and] the
[Depositary] Shares [, the Depositary Receipts and the Deposit Agreement]
conform as to legal matters to the descriptions thereof contained in the
Prospectus;
[(v) the shares of Common Stock outstanding prior to the issuance of
the Convertible Preferred Shares have been duly and validly authorized and
are issued and are fully paid and non-assessable;]
(vi) the [Convertible] Preferred Shares [, and the deposit of
[Convertible] Preferred Shares by the Company in accordance with the
Deposit Agreement,] have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, the [Convertible]
Preferred Shares will be validly issued, fully paid and non-assessable, and
the issuance of such [Convertible] Preferred Shares is not subject to any
preemptive or similar rights;
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[(vii) the shares of Common Stock issuable upon conversion of the
Convertible Preferred Shares have been duly authorized and reserved for
issuance upon such conversion, and, if and when the Convertible Preferred
Shares are converted into shares of Common Stock in accordance with the
Certificate of Designations, such shares of Common Stock will be validly
issued, fully paid and non-assessable, and the issuance of such shares of
Common Stock will not be subject to any preemptive or similar rights;]
[(viii) assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, each Depositary Share will represent
an interest in [one-quarter] of a validly issued, outstanding, fully paid
and non-assessable [Convertible] Preferred Share; assuming due execution
and delivery of the Depositary Receipts by the Depositary pursuant to the
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 has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.]
(xi) the issue and sale of the [Depositary Shares] [[Convertible]
Preferred Shares] and the compliance by the Company with all of the
provisions of the [Depositary Shares] [[Convertible] Preferred Shares],
this Agreement [,] [and] the Certificate of Designations [and the Deposit
Agreement] and the consummation of the transactions therein and herein
contemplated will not result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets of
the Company or any of its Significant Subsidiaries pursuant to the terms
of, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to which the Company
or any of its Significant Subsidiaries is a party or by which the Company
or any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of any statute or any
order, rule or regulation applicable to the Company and known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties.
(xii) the statements (y) in the Basic Prospectus under "Description
of Preferred Stock" [, "Description of Depositary Shares"], ["Description
of Common Stock",] and "Plan of Distribution" and (x) in the prospectus
supplement specifically relating to the [Convertible] Preferred Shares
[and][,] [the Depositary Shares] [and the Common Stock issuable upon
conversion of the Convertible Preferred Shares] under "Description of
Capital Stock", ["Description of Depositary Shares"] and "Underwriters",
and (z) in the
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Registration Statement in Item 15, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein;
(xiii) after due inquiry, such counsel does not know of any legal or
governmental proceeding pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its 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 as exhibits to the Registration Statement that
are not described or filed as required; and
(xiv) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except for financial statements
and schedules as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects with the
Exchange Act and the rules and regulations of the Commission thereunder,
(2) is of the opinion that the Registration Statement and the Prospectus
and any supplements or amendments thereto (except for financial statements
and schedules as to which such counsel need not express any opinion) comply
as to form in all material respects with the Act and the rules and
regulations of the Commission thereunder and (3) believes that (except for
financial statements and schedules as to which such counsel need not
express any belief) the Registration Statement and the Prospectus, as
amended or supplemented, if applicable, included therein at the time the
Registration Statement became effective did 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 and the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion of ___________,
counsel for the Underwriters, dated the Closing Date, covering the matters
referred to in subparagraphs (vi), (vii), (viii), (ix) and (xii) [(but only as
to the statements (A) in the Basic Prospectus under "Description of Preferred
Shares", ["Description of Depositary Shares"], "Description of Common Stock" and
"Plan of Distribution", and (B) in the prospectus supplement specifically
relating to the [Convertible] Preferred Shares [and[,] [the Depositary Shares]
[and the Common Stock issuable upon conversion of the Convertible Preferred
Shares] under "Description of Capital Stock", ["Description of Depositary
Shares"] and "Underwriters") and clauses (2) and (3) of (xiv) of paragraph (c)
above.
With respect to subparagraph (xiv) of paragraph (c) above, Xxxxxxx X.
Xxxxx, Esq. may state that his opinion and belief are based on his participation
in the preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto and
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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 clauses (2) and (3) of subparagraph (xiv) of
paragraph (c) above, _________________ may state that their opinion and belief
are based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendments of supplements thereto (other
than the documents incorporated therein by reference) and review and discussion
of the contents thereof (including documents incorporated therein by reference),
but are without independent check or verification, except as specified.
(e) You shall have received on the date of this Agreement a letter dated
such date and also on the Closing Date a letter dated the Closing Date, in each
case in form and substance satisfactory to you, from PricewaterhouseCoopers LLP,
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to the Representatives on the Option
Closing Date of such documents as the Representatives may reasonably request
with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares and other matters related to the issuance of
the Additional Shares.
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, one signed copy of the Registration
Statement (including exhibits thereto and documents incorporated therein by
reference) and to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto but including documents incorporated therein
by reference) and, during the period mentioned in paragraph (c) below, as many
copies of the Prospectus, any documents incorporated therein by reference and
any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or supplement,
and to file no such proposed amendment or supplement to which you reasonably
object.
(c) If, during such period after the first date of the public offering of
the [Depositary] Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense (unless
the amendment or supplement is required as a result of the act or omission of
any Underwriter, in which case such Underwriter(s) shall reimburse the
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Company for its reasonable expenses incurred to effect the amendment or
supplement), to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which [Depositary] Shares 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 is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law.
(d) To cooperate with the Underwriters to qualify the [Depositary] Shares
for offer and sale under the securities or Blue Sky laws of such jurisdictions
as you shall reasonably request and to pay all reasonable expenses (including
reasonable fees and disbursements of counsel) in connection therewith as well as
all fees payable in connection with the review (if any) of the offering of the
[Depositary] Shares by the National Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security holders as soon
as practicable an earnings statement covering the twelve-month period
ending___________, ____________, that satisfies the provisions of Section 11(a)
of the Act and the rules and regulations of the Commission thereunder.
[(f) To endeavor to list the [Depositary] Shares on the Nasdaq National
Market.]
VII.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Underwriters
furnished to the Company in writing by any Underwriter through you expressly for
use therein. With respect to any untrue statement or alleged untrue statement in
or omission or alleged omission from the Prospectus, the indemnity agreement
contained in this paragraph shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from or through whom the person
asserting any such losses, claims, damages or liabilities purchased the
securities concerned, to the extent that the Prospectus relating to such
securities was required to be delivered by such Underwriter under the Act in
connection with such purchase and was not so delivered at or prior to the
written confirmation of the sale of such securities to such person and the
untrue statement or omission of a material fact contained in the Prospectus was
corrected in an amendment or supplement if the Company had previously furnished
copies of the Prospectus as so amended or supplemented (exclusive of material
incorporated by reference) to such Underwriter. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
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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 Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called 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 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 incurred. In the case of any such separate firm for the
Underwriters and such control persons of Underwriters, such firm shall be
designated in writing by _____________________________. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. 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 the 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.
If the indemnification provided for in the first or second paragraph of
this Article VII is unavailable to an indemnified party 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 and the Underwriters
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from the offering of the [Depositary] Shares or (ii) if the allocation 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 and of the Underwriters 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 and the
Underwriters shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the [Depositary]
Shares. The relative fault of the Company and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any 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 Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the [Depositary] Shares 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VII are several, in proportion to the respective number
of Firm Shares to be purchased by each of such Underwriters as set forth
opposite each Underwriter's name in Schedule I hereto plus any additional Firm
Shares which such Underwriter may become obligated to purchase under this
Agreement or the Agreement Among Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VII and
the representations and warranties 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 or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Depositary Shares.
VIII.
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This Agreement shall be subject to termination in your discretion, by
notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date there shall have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the Nasdaq National Market; (ii) a suspension or material
limitation in trading of any securities issued by the Company; (iii) a general
moratorium on commercial banking activities declared by either Federal or New
York State authorities; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or (v) any material adverse change in financial conditions in
the United States or a disruption in commercial banking or securities settlement
or clearance services in the United States, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impractical or
inadvisable to proceed with the public offering or the delivery of the
[Depositary Shares] [[Convertible] Preferred Shares] on the terms and in the
manner contemplated by the Prospectus.
IX.
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 [Depositary]
Shares that it or they have agreed to purchase hereunder on such date, and the
aggregate number of [Depositary] Shares 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 [Depositary] Shares to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
number of Firm Shares set forth opposite their respective names in Schedule I
bears to the aggregate number of Firm Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the [Depositary] Shares 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 [Depositary] Shares that any Underwriter
has agreed to purchase pursuant to Article II be increased pursuant to this
Article IX by an amount in excess of one-ninth of such number of [Depositary]
Shares without the written consent of such Underwriter. If, on the Closing Date,
or the Option Closing Date, as the case may be, any Underwriter or Underwriters
shall fail or refuse to purchase [Depository] Shares and the aggregate number of
[Depositary] Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of [Depositary] Shares to be purchased on such
date, and arrangements satisfactory to you and the Company for the purchase of
such [Depositary] Shares 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 or the Option Closing Date, as the
case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
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
14
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.
This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
15
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
X.X. XXXXXX COMPANY
By: ____________________________
Its: _______________________
Accepted, ______________, ______
By: ___________________________
Its: ______________________
________________________________
By: ___________________________
Its: ______________________
Each acting severally on behalf of
itself and the several Underwriters
named herein.
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SCHEDULE I
Number of
Underwriter [Depositary] Shares
-------------------------------
Total
