XXXXXXX XXXXX, INC.
Common Stock
UNDERWRITING AGREEMENT
1. INTRODUCTORY. Xxxxxxx Xxxxx, Inc., a Florida corporation
("Company"), proposes to issue and sell from time to time shares of its common
stock registered under the registration statement referred to in Section 2(a)
("Registered Securities"). The number of shares, issuance price and the other
terms of each offering of Registered Securities will be determined at the time
of sale. Particular offerings of the Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the Underwriters,
if any, specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b), 5(c)
and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33-64305), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended at the time of any Terms Agreement
referred to in
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Section 3, is hereinafter referred to as the "Registration Statement", and
the prospectus included in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the Securities and the
terms of offering thereof, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act
of 1933 ("Act"), including all material incorporated by reference therein,
is hereinafter referred to as the "Prospectus".
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such Registration Statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission ("Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
3. PURCHASE AND OFFERING OF SECURITIES. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. The Terms Agreement will incorporate
by reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the number of shares to be purchased by each
Underwriter, the purchase price to be paid
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by the Underwriters and the terms of the Securities not already specified,
including, but not limited to, whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than five full
business days thereafter as the Representatives and the Company agree as the
time for payment and delivery, being herein and in the Terms Agreement referred
to as the "Closing Date"), the place of delivery and payment and any details of
the terms of offering that should be reflected in the prospectus supplement
relating to the offering of the Securities. The obligations of the Underwriters
to purchase the Securities will be several and not joint. It is understood that
the Underwriters propose to offer the Securities for sale as set forth in the
Prospectus. The certificates for the Securities delivered to the Underwriters
on the Closing Date will be in definitive form, in such denominations and
registered in such names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
number of shares of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts. If
the Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate number of shares of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the number of shares
of
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Securities set forth opposite each Underwriter's name in such Terms Agreement,
except to the extent that the Representatives determine that such reduction
shall be otherwise than pro rata and so advise the Company. The Company will
advise the Representatives not later than the business day prior to the Closing
Date of the number of shares of Contract Securities.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that it will furnish to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
for the Underwriters, one signed copy of the registration statement relating to
the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Representatives, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement.
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which
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they were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Company promptly will prepare
and file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance. Neither the Representatives' consent to, nor the Underwriters
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) During the period of ten years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other
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Underwriters, if any, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report or definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
for any expenses (including fees and disbursements of counsel) incurred by
them in connection with qualification of the Registered Securities for sale
and determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives may designate and the printing of
memoranda relating thereto or any fees charged by investment rating
agencies for the rating of the Securities, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Registered
Securities and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses and any preliminary prospectus supplements to
Underwriters.
(i) For a period beginning at the time of execution of the Terms
Agreement and ending thirty days after the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell, contract
to sell or otherwise dispose of any shares of capital stock of the Company.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
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(a) The Representatives shall have received a letter, dated the
Closing Date, of Xxxxxx Xxxxxxxx LLP, confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in effect that:
(i) in their opinion, any financial statements or schedules
examined by them and included in the Prospectus comply in form in
all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
(ii) they have made a review of any unaudited financial
statements included in the Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants,
as indicated in their report or reports attached to such letter;
(iii) on the basis of the review referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, a reading of the minutes of the meetings of the stockholders,
directors and committees of the Board of Directors of the Company,
inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included in
the Prospectus do not comply in form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and Regulations or are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent
8
with that of the audited financial statements included in the
Prospectus.
(B) the unaudited capsule information, if any, included in
the Prospectus does not agree with the corresponding amounts set
forth in the unaudited consolidated financial statements from
which it was derived or was not determined on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five days prior to the Closing Date, there was any change in
the capital stock or any increase in short-term indebtedness or
long-term debt of the Company and consolidated subsidiaries or,
at the date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated shareholders'
equity, as compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year in consolidated net interest income,
consolidated income before income taxes, in the consolidated
total or per share amounts of net income or in the ratio of
earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
included in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters, including any Representatives, materially
impairs the investment quality of the Securities or the Registered
Securities; (ii) any downgrading in the rating of any debt securities or
preferred stock of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act),
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or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred stock
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal or New York or
Florida authorities; or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by Congress
or any other substantial national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxxx Xxxxx & Xxxxxx, P.A., counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Florida,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification;
(ii) The Securities have been duly authorized; the Securities
other than any Contract Securities have been validly issued and are
fully paid and nonassessable; any Contract Securities, when issued,
delivered and sold pursuant to Delayed
10
Delivery Contracts, will be validly issued, fully paid and
nonassessable; and the Securities other than any Contract Securities
conform, and any Contract Securities, when so issued, delivered and
sold, will conform, to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities;
(iii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Securities by the Company, except such as have
been obtained and made under the Act and such as may be required under
state securities laws;
(iv) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) and any Delayed
Delivery Contracts and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties or any agreement or instrument known to such counsel to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
charter or by-laws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement);
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(v) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Act, and
the registration statement relating to the Registered Securities, as
of its effective date, the Registration Statement and the Prospectus,
as of the date of the Terms Agreement, and any amendment or supplement
thereto, as of its date, complied as to form in all material respects
with the requirements of the Act and the Rules and Regulations; such
counsel have no reason to believe that such registration statement, as
of its effective date, the Registration Statement or the Prospectus,
as of the date of the Terms Agreement, or any such amendment or
supplement, as of its date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present in all
material respects the information required to be shown; and such
counsel do not know of any legal or governmental proceedings required
to be described in the Prospectus which are not described as required
or of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement which are not described and
filed as required; it being understood that such counsel need express
no opinion as to the financial statements or other financial or
statistical data contained in the Registration Statement or the
Prospectus; and
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(vi) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as they may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Xxxxxxx Xxxxxxx & Xxxxxxxx may rely as to the incorporation of the Company
and all other matters governed by Florida law upon the opinion of Xxxxxxx
Xxxxx & Xxxxxx, P.A. referred to above.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or, to the
best knowledge of the Company, are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operation of the Company and its subsidiaries except
as set forth in or contemplated by the Prospectus or as described in such
certificate.
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(g) The Representatives shall have received a letter, dated the
Closing Date, of Xxxxxx Xxxxxxxx LLP, which reconfirms the matters set
forth in their letter delivered pursuant to subsection (a) of this Section
and states in effect that:
(i) in their opinion, any financial statements or schedules
examined by them and included in the Prospectus and not covered by
their letter delivered pursuant to subsection (a) of this Section
comply in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have made a review of any unaudited financial
statements included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section in accordance
with standards established by the American Institute of Certified
Public Accountants, as indicated in their report or reports attached
to such letter;
(iii) on the basis of the review referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, a reading of the minutes of the meetings of the stockholders,
directors and committees of the Board of Directors of the Company,
inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included in
the Prospectus and not covered by their letter delivered pursuant
to subsection (a) of this Section do not comply in form in all
material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations or are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent
14
with that of the audited financial statements included in the
Prospectus.
(B) the unaudited capsule information, if any, included in
the Prospectus does not agree with the corresponding amounts set
forth in the unaudited consolidated financial statements from
which it was derived or was not determined on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five days prior to the Closing Date, there was any change in
the capital stock or any increase in short-term indebtedness or
long-term debt of the Company and consolidated subsidiaries or,
at the date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated shareholders'
equity, as compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year in consolidated net interest income,
consolidated income before income taxes, in the consolidated
total or per share amounts of net income or in the ratio of
earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar
15
amounts) and other financial information included in the Prospectus
and not covered by their letter delivered pursuant to subsection (a)
of this Section (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
16
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
17
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after written notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities 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 on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses,
18
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which 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 in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate number of shares of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase and pay for does not
exceed 10% of the total number of shares of the Securities, the Representatives
may make arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the
19
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under this Agreement and the Terms
Agreement, to purchase the Securities that such defaulting Underwriters agreed
but failed to purchase and pay for. If any Underwriter or Underwriters so
default and the aggregate number of shares of the Securities with respect to
which such default or defaults occur exceeds 10% of the total number of shares
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in the Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
The respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the numbers of shares of the Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specified that such obligations and
agreements will not apply.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters under the Terms Agreement is not consummated, the
Company shall remain responsible for the
20
expenses to be paid or reimbursed by it pursuant to Section 4 and the respective
obligations of the Company and the Underwriters pursuant to Section 6 shall
remain in effect. If the purchase of the Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Securities.
9. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their addresses furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer.
10. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. APPLICABLE LAW. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
ANNEX I
(Three copies of this Delayed Delivery Contract
should be signed and returned
to the address shown below so as
to arrive not later than 9:00 A.M.,
New York time, on ______________, 19__*/.)
DELAYED DELIVERY CONTRACT
[Insert date of initial
public offering]
XXXXXXX XXXXX, INC.
c/o THE FIRST BOSTON CORPORATION
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxxx Xxxxx, Inc., a
Florida corporation ("Company"), and the Company agrees to sell to the
undersigned, [as of the date hereof, for delivery on , 19
("Delivery Date").]
_______________ shares
of the Company's [Insert title of securities] ("Securities"), offered by the
Company's Prospectus dated , 19 and a Prospectus Supplement dated
, 19 relating thereto, receipt of copies of which is hereby
acknowledged at $ per share plus accrued dividends, if any, and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the amounts set forth
below:
___________________
*/ Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
2
Number
Delivery Date of Shares
------------- ---------
__________________________ _________
__________________________ _________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of at .M. on [the] [such]
Delivery Date upon delivery to the undersigned of the Securities to be purchased
by the undersigned for delivery on such Delivery Date in definitive form and in
such denominations and registered in such names as the undersigned may designate
by written or telegraphic communication addressed to the Company not less than
five full business days prior to [the] [such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the] [each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total number of shares of
the Securities less the number of shares thereof covered by this and other
similar Contracts The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
3
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contact is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_______________________________________
(Name of Purchaser)
By __________________________________
__________________________________
(Title of Signatory)
__________________________________
__________________________________
(Address of Purchaser)
Accepted, as of the above date.
XXXXXXX XXXXX, INC.
By _______________________________
4
[Insert Title]
