Exhibit B-3
[NAME OF ISSUER]
EQUITY SECURITIES
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
[NAME OF ISSUER]
STANDARD PURCHASE PROVISIONS -
EQUITY SECURITIES
From time to time, [Name of Issuer], a corporation
organized and existing under the laws of the State of Delaware
(the "Company") may enter into purchase agreements that provide
for the sale of designated securities to the purchaser or pur-
chasers named therein. The standard provisions set forth
herein may be incorporated by reference in any such purchase
agreement (the "Purchase Agreement"). The Purchase Agreement,
including the provisions incorporated therein by reference, is
herein sometimes referred to as "this Agreement." The term
"[Preferred] [Common] Stock" shall mean the [Preferred] [Com-
mon] Stock of the Company. Unless otherwise defined herein,
terms defined in the Purchase Agreement are used herein as
therein defined.
The Company has filed, in accordance with the provi-
sions of the Securities Act of 1933, as amended, and the rules
and regulations of the Securities and Exchange Commission
thereunder (collectively called the "Act"), with the Securities
and Exchange Commission (the "Commission"), a registration
statement on Form S-3 (including a prospectus), relating to the
Company's [Preferred] [Common] Stock, which pursuant to Item 12
of Form S-3 incorporates by reference documents which the Com-
pany has filed in accordance with the provisions of the Securi-
ties Exchange Act of 1934, as amended, and the rules and regu-
lations thereunder (collectively called the "Exchange Act").
Such registration statement has been declared effective by the
Commission. Promptly upon the execution of this Agreement, the
Company will prepare a prospectus supplement relating to the
[Preferred] [Common] Stock to be sold by the Company pursuant
to the applicable Purchase Agreement (the "Prospectus Supple-
ment"). The Company has furnished to you, for use by the
Underwriters (as defined herein) and dealers, copies of one or
more preliminary prospectuses and the documents so incorporated
therein (each thereof, including the documents so incorporated
therein, is herein called the "Preliminary Prospectus"). The
terms Registration Statement and Prospectus shall have the
meanings ascribed to them in the Purchase Agreement.
1. Introductory. The Company proposes to issue and
sell from time to time [Preferred] [Common] Stock registered
under the Registration Statement. [Each series of Preferred
Stock to be sold pursuant to a particular Purchase Agreement
will bear dividends and have the redemption and sinking fund
provisions, if any, and other terms determined at the time of
the sale and set forth in the Purchase Agreement and the
-2-
Prospectus Supplement relating to such series of Preferred
Stock.] The shares of [Preferred] [Common] Stock involved in
any such offering are hereinafter referred to as the "Shares,"
and the firm or firms, as the case may be, which agree to pur-
chase the same are hereinafter referred to as the "Underwrit-
ers" of the Shares. The terms "you" and "your" refer to those
Underwriters who sign the Purchase Agreement either on behalf
of themselves only or on behalf of themselves and as represen-
tatives of the several Underwriters named in Schedule A
thereto, as the case may be. Shares to be purchased by Under-
writers are herein referred to as "Underwriters' Shares," and
any Shares to be purchased pursuant to Delayed Delivery Con-
tracts (as defined below) as hereinafter provided are herein
referred to as "Contract Shares."
2. Delivery and Payment. The Company will deliver
the certificates for the Shares to you for the accounts of the
Underwriters at the place specified in the Purchase Agreement,
against payment of the purchase price by wire transfer of imme-
diately available funds (as agreed to by the parties and speci-
fied in the Purchase Agreement), at the time set forth in this
Agreement or at such other time not later than seven full busi-
ness days thereafter as you and the Company determine, such
time being herein referred to as the "time of purchase."
Unless otherwise provided for in the Purchase Agreement, the
certificates for the Underwriters' Shares so to be delivered
will be in such denominations and registered in such names as
you request in writing not later than 10.00 A.M.,* on the third
business day prior to the time of purchase, or, if no such
request is received, in the names of the respective Underwrit-
ers in the denominations agreed to be purchased by them pursu-
ant to this Agreement. For the purpose of expediting the
checking of the certificates for the Underwriters' Shares, the
Company agrees to make such certificates available to you at
the place specified in the Purchase Agreement registered in
such names and denominations as you shall have requested not
later than 10.00 A.M. on the first business day preceding the
time of purchase.*
If any Purchase Agreement provides for sales of
Shares pursuant to delayed delivery contracts, the Company
___________________
* Times mentioned herein are New York City Time.
* As used herein, "business day" shall mean a day on which
the New York Stock Exchange is open for trading.
-3-
authorizes the Underwriters to solicit offers to purchase Con-
tract Shares pursuant to delayed delivery contracts substan-
tially in the form of Schedule I attached hereto (the "Delayed
Delivery Contracts") with such changes therein as the Company
may approve. Delayed Delivery Contracts are to be with insti-
tutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies, and
educational and charitable institutions. At the time of pur-
chase the Company will pay you as compensation, for the
accounts of the Underwriters, the compensation set forth in
such Purchase Agreement in respect of the principal amount of
Contract Shares. The Underwriters will not have any responsi-
bility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Shares shall be
deducted from the Shares to be purchased by the several Under-
writers and the aggregate principal amount of Shares to be pur-
chased by each Underwriter shall be reduced pro rata in propor-
tion to the principal amount of Shares set forth opposite each
Underwriter's name in such Purchase Agreement, except to the
extent that you determine that such reduction shall be other-
wise allocated and so advise the Company.
3. Certain Covenants of the Company. The Company
agrees:
(a) As soon as possible after the execution
and delivery of this Agreement to file, or mail
for filing, the Prospectus with the Commission
pursuant to its Rule 424 under the Act and, if and
when required at any time after such execution and
delivery, to file amendments to the applications
the Company has previously filed with any state
regulatory agencies having jurisdiction to govern
the Company's issuance of its securities setting
forth, among other things, the necessary informa-
tion with respect to the price and the terms of
the Shares and the terms of offering of the
Shares;
(b) To file no amendment or supplement to
the Registration Statement or Prospectus (other
than a required filing under the Exchange Act)
subsequent to the execution of this Agreement and
prior to the time of purchase to which you object
in writing;
-4-
(c) To furnish such proper information as
may be required and otherwise to cooperate in
qualifying the Shares for sale under the laws of
such jurisdictions as you may designate and in
determining their eligibility for investment under
the laws of such jurisdictions; provided that the
Company shall not be required to qualify as a for-
eign corporation or to file a general consent to
service of process in any jurisdiction;
(d) To the extent not previously furnished
to you, to furnish to you two signed copies of the
Registration Statement, as initially filed with
the Commission, of all amendments thereto, and of
all documents incorporated by reference therein
(including all exhibits filed therewith, other
than exhibits which have previously been furnished
to you), two signed copies of each consent and
certificate of independent accountants and of each
other person who by his profession gives authority
to statements made by him and who is named in the
Registration Statement as having prepared, certi-
fied or reviewed any part thereof, and to furnish
to you sufficient unsigned copies of the foregoing
(other than exhibits, including consents filed as
exhibits, to the Registration Statement) for dis-
tribution of a copy to you and to each of the
other Underwriters;
(e) To deliver to the Underwriters without
charge in New York City as soon as practicable
after the execution and delivery of this Agreement
and thereafter from time to time to furnish to the
Underwriters, without charge, as many copies of
the Prospectus in final form and any documents
incorporated by reference therein at or after the
date thereof (or as amended or supplemented, if
the Company shall have made any amendment or sup-
plement after the effective date of the Registra-
tion Statement) as you or the respective Under-
writers may reasonably request for the purposes
contemplated by the Act;
(f) To advise you promptly (confirming such
advice in writing) of any official request made by
the Commission for amendments to the Registration
Statement or Prospectus or for additional
-5-
information with respect thereto, or of official
notice of institution of proceedings for, or the
entry of, a stop order suspending the effective-
ness of the Registration Statement and, if such
order should be entered by the Commission, to make
every reasonable effort to obtain the lifting or
removal thereof as soon as possible, or of the
suspension of qualification of the Shares for
offering or sale in any jurisdiction or of the
initiation or threatening of any proceeding for
any such purpose;
(g) To apply the net proceeds from the sale
of the Shares in the manner set forth in the
Prospectus;
(h) To furnish to you during a period of
five years from the time of purchase (i) as soon
as practicable after the end of each fiscal year,
a copy of its annual report to shareholders for
such year, (ii) from time to time, copies of any
reports or other communications which it shall
file with the Commission or any governmental
agency substituted therefor under the Exchange Act
or sent to its public stockholders, or holders of
the Shares, and (iii) such other information as
you may from time to time reasonably request
regarding the financial condition and operations
of the Company;
(i) To furnish to any other Underwriter cop-
ies of such of the financial statements, reports
or other information referred to in the foregoing
subparagraphs (h)(i) and (ii) as such Underwriter
may, from time to time during the period you are
entitled to receive them, request;
(j) To advise the Underwriters of the hap-
pening of any event known to the Company within
the time during which a prospectus relating to the
Shares is required to be delivered under the Act
which, in the judgment of the Company, would
require the making of any change in the Prospectus
or any amended or supplemented Prospectus or in
the information incorporated by reference therein
so that as thereafter delivered to purchasers such
Prospectus will not include an untrue statement of
-6-
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, and on request to pre-
pare and furnish to the Underwriters and to deal-
ers and other persons designated by you such
amendments or supplements (including appropriate
filings under the Exchange Act) to the Prospectus
as may be necessary to reflect any such change,
provided that the Company shall be so obligated
only so long as the Company is notified of unsold
allotments (failure by the Underwriters to so
notify the Company cancels the Company's obliga-
tion under this Section 3(j));
(k) As soon as practicable, to make gener-
ally available to its security holders an earnings
statement (as contemplated by Rule 158 under the
Act) covering a period of twelve months after the
effective date of the Registration Statement;
(l) to pay the fees and expenses of counsel
for the Underwriters, and to reimburse the Under-
writers for their reasonable out-of-pocket
expenses incurred in contemplation of the perfor-
xxxxx of this Agreement, in the event that the
Shares are not delivered to and taken up and paid
for by the Underwriters hereunder for any reason
whatsoever except the failure or refusal of any
Underwriter to take up and pay for Shares for some
reason not permitted by the terms of this Agree-
ment, the Underwriters agreeing to pay the fees
and expenses of counsel for the Underwriters in
any other event;
(m) To pay all expenses, fees and taxes
(other than transfer taxes and fees and disburse-
ments of counsel for the Underwriters except as
set forth under 3(1) above or (iv) below) in con-
nection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospec-
tus and the Prospectus, any documents incorporated
by reference therein at or after the date thereof
and any amendments or supplements thereto, and the
printing or reproduction and furnishing of copies
of each thereof to the Underwriters and to deal-
ers, (ii) the issue, sale and delivery of the
-7-
Shares, (iii) the printing or reproduction of this
Agreement and the opinions and letters referred to
in Section 4(a) hereof, (iv) the qualification of
the Shares for sale and determination of their
eligibility for investment under state laws as
aforesaid, including the reasonable legal fees and
all filing fees and disbursements of counsel for
the Underwriters and all other filing fees, and
the printing or reproduction and furnishing of
copies of the "Blue Sky Survey" and the "Legal
Investment Survey" to the Underwriters and to
dealers, (v) the rating of the Shares by national
rating agencies and (vi) the performance of the
Company's other obligations hereunder;
(n) To furnish to you as early as practi-
cable prior to the time of purchase, but no later
than two business days prior thereto, a copy of
the latest available unaudited interim xxxxxxx-
dated financial statements, if any, of the Company
which have been read by the Company's independent
public accountants as stated in their letter to be
furnished pursuant to Section 4(a) of this Agree-
ment; and
(o) If a public offering of the Shares is to
be made, not to offer or sell any of its [Pre-
ferred] [Common] Stock prior to thirty days after
the time of purchase without your consent (except
pursuant to employee benefit or dividend reinvest-
ment plans).
4. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters hereunder are subject
to the following conditions:
(a) That, at the time of purchase, you shall
receive the signed opinions of counsel for the
Company and counsel for the Underwriters, substan-
tially in the forms heretofore furnished to you,
addressed to the Underwriters (with reproduced or
conformed copies thereof for each of the other
Underwriters); and that, at the time of purchase,
you shall receive the signed letters of the inde-
pendent public accountants of the Company, sub-
stantially in the form heretofore furnished to you
and in substance satisfactory to you addressed to
-8-
the Underwriters (with reproduced or conformed
copies thereof for each of the other
Underwriters);
(b) That, at or before 5:30 P.M. on the date
hereof, or at such later time and day as you may
have from time to time consented to in writing or
by telephone, confirmed in writing, such orders of
state authorities which are necessary to permit
the issue, sale and delivery of the Shares, if
any, shall have been issued; at the time of pur-
chase such orders shall be in full force and
effect; and prior to such time of purchase no stop
order with respect to the effectiveness of the
Registration Statement shall have been issued
under the Act by the Commission and at such time
of purchase no proceedings therefor shall be pend-
ing or threatened;
(c) That, at the time the Registration
Statement became effective, the Registration
Statement did not contain an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, and that at
the time of purchase the Prospectus shall not con-
tain an untrue statement of a material fact or
omit to state a material fact required to be
stated therein or necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading, other than
any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus
in reliance upon, and in conformity with, informa-
tion furnished in writing by or on behalf of any
Underwriter through you to the Company expressly
for use with reference to such Underwriter in the
Registration Statement or Prospectus;
(d) That, subsequent to the respective dates
as of which information is given in the Registra-
tion Statement and in the Prospectus, at the time
the Prospectus is first filed, or mailed for fil-
ing, pursuant to Rule 424 under the Act, and prior
to the time of purchase, in your opinion no mate-
rial adverse change, or any development involving
a prospective material adverse change, in the
-9-
condition of the Company, financial or otherwise,
shall have taken place (other than as referred to
in or contemplated by the Registration Statement
and Prospectus as of such time);
(e) That the Company shall have performed
all of its obligations under this Agreement which
are to be performed by the terms hereof at or
before the time of purchase; and
(f) That, since the date of this Agreement,
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 direc-
tion of the possible change, in the rating
accorded any of the Company's securities by any
"nationally recognized statistical rating organi-
zation," as such term is defined for purposes of
Rule 436(g)(2) under the Act (other than as
referred to in or contemplated by the Registration
Statement and the Prospectus as of such time);
(g) That the Company shall, at the time of
purchase, deliver to you (with reproduced or con-
formed copies thereof for each of the other Under-
writers) a signed certificate of two of its execu-
tive officers stating that, subsequent to the
respective dates as of which information is given
in the Registration Statement and in the Prospec-
tus, at the time the Prospectus is first filed, or
mailed for filing, pursuant to Rule 424 under the
Act, and prior to the time of purchase, no mate-
rial adverse change, or any development involving
a prospective material adverse change, in the con-
dition of the Company, financial or otherwise,
shall have taken place (other than as referred to
in or contemplated by the Registration Statement
and Prospectus as of such time) and also covering
the matters set forth in (c) and (e) of this
Section 4.
(h) That the Company shall have accepted
Delayed Delivery Contracts in any case where sales
of Contract Shares arranged by the Underwriters
have been approved by the Company.
-10-
5. Termination of Agreement. The obligations of
the several Underwriters hereunder shall be subject to termina-
tion in your absolute discretion, if, at any time prior to the
time of purchase, trading in securities on the New York Stock
Exchange shall have been suspended (other than a temporary sus-
pension to provide for an orderly market) or minimum prices
shall have been established on the New York Stock Exchange, or
if a banking moratorium shall have been declared either by the
United States or New York State authorities, or if after the
execution of this Agreement the United States shall have
declared war in accordance with its constitutional processes or
there shall have occurred any material outbreak or escalation
of hostilities or other national or international calamity or
crisis of such magnitude in its effect on the financial markets
of the United States as, in your judgment, to make it impracti-
cable to market the Shares.
If you elect to terminate this Agreement as provided
in this Section 5, the Company and each other Underwriter shall
be notified promptly in writing or by telephone, confirmed in
writing.
If the sale to the Underwriters of the Underwriters'
Shares as herein contemplated is not carried out by the Under-
writers for any reason permitted hereunder or if such sale is
not carried out because the Company shall be unable to comply
with any of the terms thereof, the Company shall not be under
any obligation or liability under this Agreement (except to the
extent provided in Sections 3(1), 3(m), 7(b) and 9 hereof), and
the Underwriters shall be under no obligation or liability to
the Company (except to the extent provided in Sections 8(b) and
9 hereof) or to one another under this Agreement.
6. Increase in Underwriters' Commitments. If any
Underwriter shall default in its obligation to take up and pay
for the Shares to be purchased by it hereunder and if the num-
ber of Shares which all Underwriters so defaulting shall have
so failed to take up and pay for does not exceed 10% of the
total number of Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the number of Shares they
are obligated to purchase pursuant to this Agreement) the num-
ber of Shares agreed to be purchased by all such defaulting
Underwriters, as herein provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriter or Under-
writers in such number as you may designate with the consent of
each Underwriter so designated or, in the event no such desig-
nation is made, such Shares shall be taken up and paid for by
-11-
all non-defaulting Underwriters pro rata in proportion to the
number of Shares set opposite the names of all such non-
defaulting Underwriters in Schedule A to the Purchase
Agreement.
Without relieving any defaulting Underwriter of its
obligations hereunder, the Company agrees with the non-default-
ing Underwriters that it will not sell any Shares hereunder
unless all of the Shares are purchased by the Underwriters (or
by substituted Underwriters selected by you with the approval
of the Company or selected by the Company with your approval).
If a new underwriter or underwriters are substituted
by the Underwriters or by the Company for a defaulting Under-
writer or Underwriters in accordance with the foregoing provi-
sion, the Company or you will have the right to postpone the
time of purchase for a period of not exceeding five business
days in order that necessary changes in the Registration State-
ment and Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement will
refer to and include any underwriter substituted under this
Section 6 with like effect as if such substituted underwriter
had originally been named in Schedule A to the Purchase
Agreement.
7. Warranties and Representations of and Indemnity
by the Company. (a) The Company warrants and represents that,
when the Registration Statement became effective, the Registra-
tion Statement complied in all material respects, and, when the
Prospectus is first filed, or mailed for filing, pursuant to
Rule 424 under the Act, the Prospectus will comply in all mate-
rial respects with the provisions of the Act, and that neither
will contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or neces-
sary to make the statements therein not misleading; provided,
however, that the Company makes no warranty or representation
with respect to any statement contained in, or any matter omit-
xxx from, the Registration Statement or the Prospectus in reli-
ance upon and in conformity with information furnished in writ-
ing by or on behalf of any Underwriter through you to the Com-
pany expressly for use with reference to the Underwriter in the
Registration Statement or Prospectus. The Company also war-
rants and represents that the documents incorporated by refer-
ence in the Prospectus comply in all material respects with the
requirements of the Exchange Act and any additional documents
deemed to be incorporated by reference in the Prospectus will,
-12-
when they are filed with the Commission, comply in all material
respects with the requirements of the Exchange Act, and will
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein, or neces-
sary to make the statements therein, in the light of the cir-
cumstances under which they are made, not misleading.
(b) The Company agrees to indemnify and hold harm-
less each Underwriter, and any person who controls any Under-
writer within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any loss,
expense, liability or claim (including the reasonable fees and
expenses of counsel and other reasonable expenses in connection
with investigating, defending or settling any such claim) which
arises out of or is based upon any alleged untrue statement of
a material fact in the Registration Statement, any prospectus
contained in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary pro-
spectus, or arises out of or is based upon any alleged omission
to state therein a material fact required to be stated therein
or necessary to make the statements made therein not mislead-
ing. The foregoing shall not cover any such loss, expense,
liability or claim, however, which arises out of or is based
upon any alleged untrue statement of a material fact contained
in, and in conformity with information furnished in writing by
or on behalf of such Underwriter through you to the Company
expressly for use with reference to the Underwriter in, any
such documents or arises out of or is based upon any alleged
omission to state a material fact in connection with such
information required to be stated in any such documents or nec-
xxxxxx to make such information not misleading.
If any action is brought against an Underwriter or
controlling person in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, such
Underwriter shall promptly notify the Company in writing or by
telephone, confirmed in writing, of the institution of such
action and the Company shall assume the defense of such action,
including the employment of counsel and payment of expenses.
Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of
such counsel shall have been authorized in writing by the Com-
pany in connection with the defense of such action or the Com-
pany shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties
-13-
shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional
to those available to the Company (in which case the Company
shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which
events such fees and expenses of one counsel (in addition to
local counsel) for all indemnified parties selected by you
shall be borne by the Company. Anything in this paragraph to
the contrary notwithstanding, the Company shall not be liable
for any settlement of any such claim or action effected without
its written consent. The Company's indemnity agreement con-
tained in this Section 7(b) and its warranties and representa-
tions contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf
of any Underwriter or controlling person, and shall survive any
termination of this Agreement or the issuance and delivery of
the Shares. The Company agrees promptly to notify the Under-
writers of the commencement of any litigation or proceedings
against the Company or any of its officers or directors in con-
nection with the issue and sale of the Shares or with such Reg-
istration Statement or Prospectus.
8. Warranties and Representations of the Indemnity
by Underwriters. (a) Each Underwriter warrants and represents
that the information furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use
with reference to such Underwriter in the Registration State-
ment at the time it became effective or the Prospectus, or any
related preliminary prospectus does not contain an untrue
statement of a material fact and does not omit to state a mate-
rial fact in connection with such information required to be
stated in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary pro-
spectus or necessary to make such information not misleading.
Each Underwriter, in addition to other information furnished by
such Underwriter or on its behalf through you to the Company in
writing expressly for use with reference to such Underwriter in
the Registration Statement and Prospectus, hereby furnishes to
the Company in writing expressly for use with reference to such
Underwriter the statements with respect to the terms of offer-
ing of the Shares by the Underwriters set forth on the cover
page of the Prospectus Supplement and under "underwriting"
therein.
-14-
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors and its officers
from and against any loss, expense, liability or claim (includ-
ing the reasonable fees and expenses of counsel and other rea-
sonable expenses in connection with investigating, defending or
settling any such claim) which arises out of or is based upon
any alleged untrue statement of a material fact contained in,
and in conformity with information furnished in writing by or
on behalf of such Underwriter through you to the Company
expressly for use with reference to such Underwriter in, the
Registration Statement, any prospectus contained in the Regis-
tration Statement at the time it became effective or the Pro-
spectus, or any related preliminary prospectus, or arises out
of or is based upon any alleged omission to state a material
fact in connection with such information required to be stated
in such documents or necessary to make such information not
misleading.
If any action is brought against the Company or any
such person in respect of which indemnity may be sought against
any Underwriter pursuant to the foregoing paragraph, the Com-
pany or such person shall promptly notify such Underwriter in
writing or by telephone, confirmed in writing, of the institu-
tion of such action and such Underwriter shall assume the
defense of such action, including the employment of counsel and
payment of expenses. The Company or such person shall have the
right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense
of the Company or such person unless the employment of such
counsel shall have been authorized in writing by such Under-
writer in connection with the defense of such action or such
Underwriter shall not have employed counsel to have charge of
the defense of such action or such indemnified party or parties
shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional
to those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses for all indemnified
parties of one counsel (in addition to local counsel) selected
by the Company shall be borne by such Underwriter. Anything in
this paragraph to the contrary notwithstanding, no Underwriter
shall be liable for any settlement of any such claim or action
effected without the written consent of such Underwriter. The
indemnity agreement on the part of each Underwriter contained
in this Section 8(b) shall remain in full force and effect
regardless of any investigation made by or on behalf of the
-15-
Company or such person, and shall survive any termination of
this Agreement or the issuance and delivery of the Shares.
Each Underwriter agrees promptly to notify the Company of the
commencement of any litigation or proceedings against such
Underwriter in connection with the issue and sale of the Shares
or with such Registration Statement or Prospectus.
9. Contribution. If the indemnification provided
for in Section 7(b) or 8(b) above is unavailable in respect of
any losses, expenses, liabilities or claims referred to
therein, then the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities
and expenses except to the extent that contribution is not per-
mitted under the Act or the Exchange Act. In determining the
amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits
received by each party from the offering of the Shares (taking
into account the portion of the proceeds of the offering real-
ized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the
claim was asserted, the opportunity to correct and prevent any
statement or omission, and any other equitable considerations
appropriate under the circumstances. The Company and the
Underwriters and such controlling persons agree that it would
not be equitable if the amount of such contribution were deter-
mined by pro rata or per capita allocation (even if the Under-
writers and such controlling persons were treated as one entity
for such purpose). Notwithstanding the provisions of this
Section 9, no indemnifying Underwriter shall be required to
contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by such Under-
writer and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter other-
wise has been required to pay by reason of such untrue state-
ment or alleged untrue statement or omission or alleged omis-
sion. 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 fraudu-
lent misrepresentation. The contribution agreement contained
in this Section 9 shall remain in full force and effect regard-
less of any investigation made by or on behalf of any Under-
writer or the Company or any of its officers or directors or
any controlling person and shall survive any termination of
this Agreement or the issuance and delivery of the Shares.
-16-
10. Notices. All statements, requests, notices and
agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered
or sent by registered mail to the address furnished in writing
for the purpose of such statements, requests, notices and
agreements hereunder, and, if to the Company shall be suffi-
cient in all respects if delivered or sent by registered mail
to the Company at [Issuer/Address], Attention: .
11. Construction. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
New York.
The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a
part of this agreement.
12. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the con-
trolling persons, directors and officers referred to in Section
8 hereof, and their respective successors, assigns, executors
and administrators, and no other person shall acquire or have
any right under or by virtue of this Agreement. Nothing in
this Agreement is intended or shall be construed to give to any
other person, firm or corporation (including, without limita-
tion, any purchaser of the Securities from an Underwriter or
any subsequent holder thereof) any legal or equitable right,
remedy or claim under or in respect of this Agreement or any
provision herein contained.
The term "successor" as used in this Agreement shall
not include any purchaser, as such purchaser, of any Shares
from any Underwriter or any subsequent holder thereof.
13. Counterparts. This Agreement may be executed in
any number of counterparts which, taken together, shall consti-
tute one and the same instrument.
Schedule I
DELAYED DELIVERY CONTRACT
Dated: , 199
[NAME OF ISSUER]
[ADDRESS]
Attention:
Dear Sirs:
The undersigned xxxxxx agrees to purchase from [Name
of Issuer] (the "Company"), and the Company agrees to sell to
the undersigned,
___________________ shares
of the Company's [state title of issue] (the "Shares") offered
by the Company's Prospectus dated , 199 and a
Prospectus Supplement dated , 199 , receipt of cop-
ies of which is hereby acknowledged, at a purchase price of
$ per share [plus accrued dividends] and on the further
terms and conditions set forth in this contract.
The undersigned agrees to purchase such Shares in the
amounts and on the delivery dates (the "Delivery Dates") set
forth below:
Delivery Number of [Plus Accrued
__Date__ _Shares__ Dividends From:]
________________ _______________ ________________
________________ _______________ ________________
________________ _______________ ________________
Payment for the Shares which the undersigned has
agreed to purchase on each Delivery Date shall be made to the
Company or its order by wire transfer of immediately available
-2-
funds at the Corporate Trust Office of (or at
such other place as the undersigned and the Company shall
agree) at 11:00 A.M., New York City Time, on such Delivery Date
upon issuance and delivery to the undersigned of the Shares to
be purchased by the undersigned on such Delivery Date and,
unless otherwise provided herein, registered in such names as
the undersigned may designate by written or telegraphic commu-
nications addressed to the Company not less than five full
business days prior to such Delivery Date.
The obligation of the Company to sell and deliver,
and of the undersigned to take delivery of and make payment
for, Shares on each Delivery Date shall be subject to the con-
ditions that (1) the purchase of Shares to be made by the
undersigned shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which the undersigned is
subject, (2) the sale of the Shares by the Company pursuant to
this contract shall not at the time of delivery be prohibited
under the laws of any jurisdiction to which the Company is sub-
ject and (3) the Company shall have sold, and delivery shall
have taken place, to the Underwriters of such number of the
Shares as is to be sold and delivered to them. In the event
that Shares are not sold to the undersigned because one of the
foregoing conditions is not met, the Company shall not be lia-
ble to the undersigned for damages arising out of the transac-
tions covered by this contract.
Promptly after completion of the sale and delivery to
the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such
effect, accompanied by copies of the opinions of counsel for
the Company delivered to the Underwriters.
Failure to take delivery of and make payment for
Shares by any purchaser under any other Delayed Delivery Con-
tract shall not relieve the undersigned of its obligations
under this contract.
The undersigned represents and warrants that (a) as
of the date of this contract, the undersigned is not prohibited
under the laws of the jurisdictions to which the undersigned is
subject from purchasing the Shares hereby agreed to be pur-
chased and (b) the undersigned does not contemplate selling the
Shares which it has agreed to purchase hereunder prior to the
Delivery Date therefor.
-3-
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective succes-
sors, but will not be assignable by either party hereto without
the written consent of the other. This contract shall be gov-
erned by and construed in accordance with the laws of the State
of New York. This contract may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
It is understood that the acceptance of any Delayed
Delivery Contract is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come,
first-served basis. If the contract is acceptable to the Com-
pany, it is requested that the Company sign the form of accep-
tance below and mail or deliver one of the counterparts hereof
to the undersigned at its address set forth below. This will
become a binding contract between the Company and the under-
signed when such counterpart is so signed.
Yours very truly,
____________________________________
By____________________________________
____________________________________
____________________________________
Address
Accepted, as of the date first above written
[Name of Issuer]
By_________________________________
-4-
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the repre-
sentative of the Purchaser with whom details of delivery on the
Delivery Date may be discussed are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
[NAME OF ISSUER]
PURCHASE AGREEMENT
EQUITY SECURITIES
[Name of Issuer]
[ADDRESS]
Dear Sirs:
Referring to the [Preferred] [Common] Stock of [Name
of Issuer] (the "Company") covered by the registration state-
ment on Form S-3 (No. 333-______), such registration statement
including (i) the prospectus included therein, dated
, 199_ in the form first filed under Rule 424 and
any additional prospectus supplements relating to the [Pre-
ferred] [Common] Stock filed under Rule 424 (such prospectus as
so supplemented, including each document incorporated by refer-
ence therein is hereinafter called the "Prospectus") and
(ii) all documents filed as part thereof or incorporated by
reference therein, is hereinafter called the "Registration
Statement", on the basis of the representations, warranties and
agreements contained in this Agreement, but subject to the
terms and conditions herein set forth, the purchaser or pur-
chasers named in Schedule A hereto (the "Underwriters") agree
to purchase, severally, and the Company agrees to sell to the
Underwriters, severally, the respective number of shares of
[Preferred] [Common] Stock having the terms described below
(the "Shares") set forth opposite the name of each Underwriter
on Schedule A hereto.
The price at which the Shares shall be purchased from
the Company by the Underwriters shall be $____ per share [plus
dividends, if any, accrued from _________________, 199_]. The
initial public offering price shall be $____ per share [plus
dividends, if any, accrued from ___________________, 199_].
The Shares will be offered by the Underwriters as set forth in
the Prospectus relating to such Shares.
The Shares will have the following terms:
-2-
Title of Shares: [___% Preferred Stock]
[Dividend rate: [____% per annum]
Date from which [cumula-
tive] dividend will
accrue:] _______________, 199_
[Liquidation Preference
per share:] ______________________
[Redemption Provisions:] _______________________
_______________________
_______________________
[Sinking Fund
Provisions:] _______________________
_______________________
_______________________
Other: _______________________
_______________________
_______________________
Payment for the Shares
shall be made in the fol-
lowing funds: _______________________
The "time of purchase"
shall be: _______________________
The place at which the
Shares may be checked and
packaged shall be: _______________________
The place(s) at which the
Shares shall be delivered
and sold shall be: _______________________
Delayed Delivery
Contracts: _______________________
-3-
Notices to Underwriters shall be sent to the follow-
ing address(es) or telecopier number(s):
If we are acting as Representative(s) for the several
Underwriters named in Schedule A hereto, we represent that we
are authorized to act for such several Underwriters in connec-
tion with the transactions contemplated in this Agreement, and
that, if there are more than one of us, any action under this
Agreement taken by any of us will be binding upon all the
Underwriters.
All of the provisions contained in the document enti-
tled "[Name of Issuer] Standard Purchase Provisions - Equity
Securities", a copy of which has been previously furnished to
us, are hereby incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein.
If the foregoing is in accordance with your under-
standing of our agreement, kindly sign and return to us the
enclosed duplicate hereof, whereupon it will become a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
[Firm Name]
By _____________________________
Title: ______________________
[Firm Name]
By _____________________________
Title: ______________________
Acting on behalf of and as
Representative(s) of the
several Underwriters named
in Schedule A hereto.*
___________________
* To be deleted if the Purchase Agreement is not executed by
one or more Underwriters acting as Representative(s) of
the Underwriters for purposes of this Agreement.
-4-
The foregoing Purchase Agreement is
hereby confirmed as of the date
first above written
[NAME OF ISSUER]
By ____________________________
Title: _____________________
_______________________________
SCHEDULE A
Number
of
Name of Underwriters Shares
Total __________
__________
