$4/NOFOLIO
Exhibit 1.2
FORM OF UNDERWRITING AGREEMENT (EQUITY SECURITIES
AND WARRANTS TO PURCHASE EQUITY SECURITIES)
[DATE]
[Name and address
of Underwriters]
Ladies and Gentlemen:
From time to time, McKesson Corporation, a Delaware corporation (the
"Company"), may enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain securities (the "Securities"), specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Firm Securities"). If
specified in such Pricing Agreement, the Company may grant to the Underwriters
the right to purchase at their election an additional number of Securities,
specified in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Securities"). The Firm Securities and the Optional Securities, if
any, which the Underwriters elect to purchase pursuant to Section 3 hereof are
herein collectively called the "Designated Securities."
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto.
If the Designated Securities specified in any Pricing Agreement are
depositary shares (the "Depositary Shares"), each Depositary Share will
represent a portion, specified in the applicable Pricing Agreement, of the
Company's capital stock that the Company will have deposited against delivery of
depositary receipts (the "Depositary Receipts") to be issued by a depositary,
specified in the applicable Pricing Agreement (the "Depositary"), under a
deposit agreement (the "Deposit Agreement") among the Company, the Depositary
and the holders from time to time of the Depositary Receipts issued thereunder.
Each Depositary Receipt will represent Depositary Shares as described in the
applicable Depositary Agreement.
Particular sales of Designated Securities may be made from time to time to
the Underwriters of such Designated Securities, for whom the firms designated as
representatives of the Underwriters of such Designated Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to the Underwriters who act without any
firm being designated as their representative. This Agreement shall not be
construed as an obligation of the Company to sell any of the Securities or as an
obligation of any of the Underwriters to purchase any of the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate number of
the Firm Securities, the maximum number of Optional Securities, if any, the
initial public offering price of such Firm and Optional Securities or the manner
of determining such price, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters, the number of
such Designated Securities to be purchased by the Underwriters and the
commission, if any, payable to the Underwriters with respect thereto and shall
set forth the date, time and manner of delivery of such Firm and Optional
Securities, if any, and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus,
relating to the Securities. The registration statement as amended at the time
it becomes effective, is hereinafter referred to as the "Initial Registration
Statement"; such Initial Registration Statement and any post-effective amendment
thereto, together with a registration statement, if any, increasing the size of
the offering (a "Rule 462(b) Registration Statement"), filed
2
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Securities Act"), and, in each case, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained therein is
hereinafter referred to as the "Registration Statement." The prospectus relating
to the Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement is hereinafter called the "Prospectus." Any reference to Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein as of the date of the Prospectus and any amendment or supplement in the
form in which it is filed with the Commission pursuant to Rule 424(b) under the
Securities Act, including any documents incorporated by reference therein as of
the date of such filing.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
------------------------------
to, and agrees with the Underwriters, that:
a. The Registration Statement has become effective under the Securities
Act; no stop order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose is pending before or, to the
knowledge of the Company, threatened by the Commission.
b. (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph 1(b)
do not apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to the Underwriters furnished to the
Company in writing by the Underwriters expressly for use therein.
c. The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable, and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a
3
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
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.
d. The accountants who have audited certain financial statements included
or incorporated by reference in the Registration Statement and the Prospectus
are independent public accountants as required by the Securities Act and the
rules and regulations thereunder.
e. The financial statements (together with the related notes thereto)
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of and at the dates indicated and the results of
their operations for the periods specified, except as otherwise disclosed
therein; and except as otherwise stated therein or in the Registration Statement
and the Prospectus, said financial statements have been prepared in conformity
with generally accepted accounting principles in the United States applied on a
consistent basis; and the pro forma consolidated financial data of the Company
and its subsidiaries and the related notes thereto included or incorporated by
reference in the Registration Statement and Prospectus have been prepared in
accordance with the Commission's rules and regulations with respect to pro forma
financial data, have been and will be properly compiled on the bases described
therein and the assumptions used in the preparation thereof are and will be
reasonable and the adjustments used therein are and will be appropriate to give
effect to the transactions and circumstances referred to therein.
f. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in the State of California; and the Company is duly qualified to
transact business and is in good standing in each other jurisdiction in which
the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
4
g. Each significant subsidiary of the Company, as defined by Rule 1-02(w)
of Regulation S-X of the Securities Act, has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
h. This Agreement has been, and, when signed, the applicable Pricing
Agreement relating to the Designated Securities will be, duly authorized,
executed and delivered by the Company.
i. [If Depositary Shares are being issued the Deposit Agreement has been
-------------------------------------
duly authorized by the Company and, when duly executed and delivered by the
Company and assuming the due authorization, execution and delivery of the
Deposit Agreement by the other parties thereto, will be a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforcement is sought in a proceeding at law or in
equity).]
j. [If warrants (the "Warrants") to purchase any Series preferred stock,
-------------------------------------------------------------------
par value $0.01 per share (the "Preferred Securities"), or common stock, par
-----------------------------------------------------------------------------
value $0.01 per share (the "Common Stock"), of the Company are being issued
----------------------------------------------------------------------------
The Warrant Agreement to be dated as of [ ], (the "Warrant Agreement")
between the Company and [ ], has been duly authorized by the Company
and, when duly executed and delivered by the Company and assuming the due
authorization, execution and delivery of the Warrant Agreement by the other
parties thereto, will be a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of whether
enforcement is sought in a proceeding at law or in equity).]
k. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement [if convertible Preferred
------------------------
Securities are to be issued, the issuance of the Securities] issuable upon
---------------------------
conversion of the Preferred Securities] [if Depositary Shares are to be issued,
the Depositary Shares] and, when signed, the applicable Pricing Agreement (A) do
not and will not contravene (l) any provision of the General Corporation
5
Law of the State of Delaware (the "DGCL") or any other provision of applicable
law, or (2) the charter or by-laws of the Company, or (3) any agreement,
contract, bond, indenture or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or (4) any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary of the Company,
except with respect to clauses (A)(3) and (A)(4), for a contravention which
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries taken as a whole, (B) do not and will not result in the imposition
of any lien, charge or encumbrance upon any assets of the Company or any of its
subsidiaries, pursuant to the terms of any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of them or any of
their respective properties is bound, except for any liens, charges or
encumbrances which would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the Company and
its subsidiaries taken as a whole and (C) do not require any consent, approval,
authorization or order of, or qualification with, any governmental body or
agency, except such as may be required by the securities or Blue Sky laws of the
various states and except as may be required under the Securities Act and the
Exchange Act in connection with the offer and sale of the Designated Securities.
l. There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of this
Agreement).
m. There are no legal or governmental proceedings pending or, to the best
of the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject (i) which are required to be described in the
documents incorporated by reference in the Registration Statement or Prospectus
and are not so described or (ii) which could reasonably be expected to result in
a material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, or in the power or ability of the Company to perform its obligations
under this Agreement or to consummate any of the transactions contemplated by
the Prospectus or this Agreement. There are no statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
6
n. The Company is not an "investment company," as such term is defined in
the Investment Company Act of 1940, as amended (the "Investment Company Act").
o. The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
p. The shares of capital stock of the Company (including the shares
outstanding) have been duly authorized and are validly issued, fully paid and
non-assessable.
q. The Securities have been duly and validly authorized, and, when the
Firm Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities and, in the case of
any Optional Securities, pursuant to Over-allotment Options (as defined in
Section 3 hereof) with respect to such Securities, such Designated Securities
will be duly and validly issued and fully paid and non-assessable; the
Securities conform to the description thereof contained in the Registration
Statement and the Designated Securities will conform to the description thereof
contained in the Prospectus as amended or supplemented with respect to such
Designated Securities.
r. Each of the Company and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits (collectively,
"Permits") of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain or file could
not reasonably be expected to have a material adverse effect on the Company and
its subsidiaries, taken as a whole. Neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Permits which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could reasonably be
expected to have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
s. The Company and its subsidiaries (i) are in compliance with all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances, and regulated wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other approvals and filed
all notices required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of each such permit, license, notice or approval, except where such
noncompli-
7
ance with Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of such
permits licenses, approvals or obligations or to file such notices would not,
singly or in the aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole, except as otherwise disclosed or incorporated by
reference in the Prospectus.
t. There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for cleanup, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole, except as otherwise disclosed or incorporated by reference in
the Prospectus.
u. [Except for (i) the Registration Rights Agreement dated as of February
19, 1998 among the Company, Salomon Brothers Inc, BancAmerica Xxxxxxxxx
Xxxxxxxx and X.X. Xxxxxx Securities Inc., (ii) the Registration Rights Agreement
dated as of February 20, 1997 among McKesson Financing Trust, the Company and
Xxxxxx Xxxxxxx & Co. Incorporated and (iii) the Registration Rights Agreement
dated as of September 22, 1997 between the Company and 399 Venture Partners,
Inc.,] there are no contracts, agreements or understandings between the Company,
on the one hand, and any person, on the other hand, granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require the
Company to include such securities in any registration statement filed by the
Company under the Securities Act.
v. [The Rights (as defined in the Rights Agreement, dated [ ],
between the Company and [ ] (the "Rights Agreement")) have
been duly authorized by the Company and, when shares of Common Stock are issued
by the Company [including upon conversion of the Preferred Securities], the
Rights attached to such shares will be validly issued (unless the Rights have
theretofore been redeemed or exchanged or have expired pursuant to the Rights
Agreement.]
2. OFFERING. Upon the execution of the Pricing Agreement applicable to
--------
any Designated Securities and authorization by the Representatives of the
release of the Firm
8
Securities, the several Underwriters propose to offer the Firm Securities for
sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
3. PAYMENT AND DELIVERY. The Company may specify in the Pricing
--------------------
Agreement applicable to any Designated Securities that the Company thereby
grants to the Underwriters the right (an "Over-allotment Option") to purchase at
their election up to the number of Optional Securities set forth in such Pricing
Agreement, on the terms set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised by written notice from
the Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number of Optional Securities to
be purchased and the date on which such Optional Securities are to be delivered,
as determined by the Representatives, but in no event earlier than the First
Time of Delivery (as defined in Section 3 hereof) or, unless the Representatives
and the Company otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice set forth in
such Pricing Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by the Underwriters as set forth in Schedule I to the
Pricing Agreement applicable to such Designated Securities shall be, in each
case, the number of Optional Securities which the Company has been advised by
the Representatives have been attributed to such Underwriters; provided that, if
the Company has not been so advised, the number of Optional Securities to be so
added shall be, in each case, that proportion of Optional Securities which the
number of Firm Securities to be purchased by the Underwriters under such Pricing
Agreement bears to the aggregate number of Firm Securities (rounded as the
Representatives may determine to the nearest 100 Securities). The total number
of Designated Securities to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the aggregate number of Firm Securities set
forth in Schedule I to such Pricing Agreement plus the aggregate number of
Optional Securities which the Underwriters elect to purchase.
Certificates for the Firm Securities and the Optional Securities to be
purchased by the Underwriters pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of the
Underwriters, against payment by the Underwriters or on their behalf of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
Company in such
9
amounts and at such time specified in such Pricing Agreement, (i) with respect
to the Firm Securities, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "First Time of Delivery" and (ii) with respect to
the Optional Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the Representa-
tives of the Underwriters' election to purchase such Optional Securities, or at
such other time and date as the Representatives and the Company may agree upon
in writing, such time and date, if not the First Time of Delivery, herein called
the "Second Time of Delivery." Each such time and date for delivery is herein
called a "Time of Delivery."
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
-------------------------------------------
Underwriters are subject to the following conditions:
a. Subsequent to the execution and delivery of the Pricing Agreement
relating to the Designated Securities and prior to the Time of Delivery:
i. there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of
the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
ii. there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement)
that, in the Underwriters' judgment, is so material and adverse
and that makes it, in the Underwriters' judgment, impracticable
to market the Designated Securities on the terms and in the
manner contemplated in the Prospectus.
b. The Underwriters shall have received at each Time of Delivery for the
Designated Securities a certificate, at and as of such Time of Delivery, signed
by an
10
executive officer of the Company, to the effect set forth in clause (a)(i) above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct at and as of such Time of
Delivery and that the Company has complied with all of the agreements and
satisfied all of the conditions on their part to be performed or satisfied
hereunder on or before each such Time of Delivery.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
c. The Underwriters shall have received at each Time of Delivery for the
Designated Securities an opinion of Xxxx X. Xxxxxxxx, Vice President and General
Counsel of the Company, at and as of such Time of Delivery, to the effect that:
i. the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the state of
Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in
good standing in the State of California; and the Company is duly
qualified to transact business and is in good standing in each
other jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or to be
in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
ii. each significant subsidiary of the Company, as defined by
Rule l-02(w) of Regulation S-X of the Securities Act, has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
11
iii. the shares of outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and
nonassessable and are not subject to any preemptive or similar
rights arising under the DGCL, the charter or by-laws of the
Company or, to the best of such counsel's knowledge, any
agreement or instrument to which the Company or any of its
subsidiaries is a party;
iv. the statements in the Company's most recent Annual Report on Form
10-K under the caption "Legal Proceedings" and the statements
regarding legal proceedings in the Company's Current Reports on
Form 8-K, as amended, and Quarterly Reports on Form 10-Q, as
amended, incorporated by reference in the Prospectus, in each
case insofar as such statements constitute summaries of legal
matters or legal proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
v. each document filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus (except for financial statements,
exhibits and schedules included therein as to which counsel need
not express any opinion) complied when so filed or, if amended,
when so amended, as to form in all material respects with the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder;
vi. the execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement and, when
signed, the applicable Pricing Agreement, [if Depositary Shares
--------------------
are to be issued, the Depositary Shares] [if convertible
---------------- ---------------
Preferred Securities are to be issued and the issuance of the
-------------------------------------
Securities issuable upon conversion of the Preferred Securities]
(A) do not and will not contravene (l) any provision of
applicable law or the charter or by-laws of the Company, or (2)
to the best of such counsel's knowledge, any agreement, contract,
bond, indenture or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or (3) to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary of the Company, except, with respect to
12
clauses (A)(2) and (A)(3), for a contravention which would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and
its subsidiaries taken as a whole, (B) to the best of such
counsel's knowledge, do not and will not result in the imposition
of any lien, charge or encumbrance upon any assets of the
Company or any of its subsidiaries pursuant to the terms of any
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or any of their
respective properties is bound, except for any liens, charges or
encumbrances which would not have a material adverse effect on
the condition, financial or otherwise, or the earnings or
business affairs of the Company and its subsidiaries taken as a
whole, and (C) do not require any consent, approval,
authorization or order of, or qualification with, any
governmental body or agency, except such as may be required by
the securities or Blue Sky laws of the various states and except
as may be required under the Securities Act and the Exchange Act
in connection with the performance of the obligations under this
Agreement. Such opinion may state that the term "applicable law"
as used in such opinion means those laws, rules and regulations
of the State of California, the DGCL and the federal laws of the
United States of America that, in such counsel's opinion are
normally applicable to transactions of the type contemplated by
this Agreement (other than federal and state securities laws, the
laws, rules and regulations relating specifically to bank
holding companies, antifraud laws, or any law, rule or regulation
that may have become applicable to the Company as a result of the
Underwriters' involvement with the transaction contemplated by
this Agreement or because of any facts specifically pertaining to
the Underwriters and the rules and regulations of the National
Association of Securities Dealers, Inc.), but without such
counsel having made any special investigation concerning the
applicability of any other laws, rules or regulations;
vii. to the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is
subject (i) which are required to be described in the
Registration Statement or the Prospectus and are not so described
or (ii) which could reasonably be expected to result in a
material adverse change in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, or in the power or ability of the
Company to perform its obligations under the Agreement or to
consummate any of the transactions contemplated by
13
the Agreement. To the best of such counsel's knowledge, there are
no contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or
filed as required.
In addition, such counsel shall state that such counsel or his
representatives has participated in discussions with officers and other
representatives of the Company and representatives of the independent public
accountants for the Company, at which the contents of the Registration
Statement, the Prospectus and related matters were discussed and, although such
counsel has not independently verified, is not passing upon and does not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and has made no
independent check or verification thereof (except as otherwise indicated above),
on the basis of the foregoing, such counsel shall state that no facts have come
to such counsel's attention that have led such counsel to believe that (except
for financial statements and schedules and other financial and statistical data
included or incorporated by reference therein, as to which such counsel need not
express any belief) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or, as of its date or at or as of the Time of Delivery for the Designated
Securities, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
The foregoing opinion shall be rendered to the Underwriters at the request
of the Company and shall so state therein. In addition, in rendering such
opinion, such counsel shall state that such opinion is limited to matters
arising under the laws of the State of California, the DGCL and the federal laws
of the United States.
d. The Underwriters shall have received at each Time of Delivery for the
Designated Securities an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
special counsel to the Company, dated as of such Time of Delivery, to the effect
that:
i. the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of
Delaware;
ii. the statements (A) in the Prospectus under the captions
"Description of Capital Stock," [if Depositary Shares are being
------------------------------
issued and
----------
14
"Description of Depositary Shares,"] [if Warrants are being
---------------------
issued and "Description of Warrants,"] and (B) in the
------
Registration Statement in Item 15, insofar as such statements
constitute summaries of legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
iii. this Agreement and the applicable Pricing Agreement relating to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
iv. [if Warrants are to be issued the Warrant Agreement has been duly
----------------------------
authorized by the Company and, when duly executed and delivered
by the Company and assuming the due authorization, execution and
delivery of the Warrant Agreement by the other parties thereto,
will be a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether enforcement is
sought in a proceeding at law or in equity);]
v. [if Depositary Shares are to be issued the Depositary Agreement
-------------------------------------
has been duly authorized by the Company and, when duly executed
and delivered by the Company and assuming the due authorization,
execution and delivery of the Depositary Agreement by the other
parties thereto, will be a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether
enforcement is sought in a proceeding at law or in equity);]
vi. the execution and delivery by the Company of and the performance
by the Company of its obligations under, the Agreement [if
--
convertible Preferred Securities are to be issued, the issuance
-------------------------------------------------
of the Securities issuable upon conversion of the Preferred
Securities] and, when
15
signed, the applicable Pricing Agreement, [if Depositary Shares
--------------------
are to be issued and the Depositary Agreement] (A) do not and
----------------
will not contravene any provision of applicable law, the charter
or by-laws of the Company, and (B) do not require any consent,
approval, authorization or order of or qualification with, any
governmental body or agency, except such as may be required by
the securities or Blue Sky laws of the various states. Such
opinion may state that the term "applicable law" as used in such
opinion means those laws, rules and regulations of the state of
New York, the state of California, the DGCL and the federal laws
of the United States of America that, in such counsel's
experience, are normally applicable to transactions of the type
contemplated by this Agreement (other than federal and state
securities laws, the laws, rules and regulations relating
specifically to bank holding companies, antifraud laws, or any
law, rule or regulation that may have become applicable to the
Company as a result of the Underwriters' involvement with the
transaction contemplated by this Agreement or because of any
facts specifically pertaining to the Underwriters and the rules
and regulations of the National Association of Securities
Dealers, Inc.), but without such counsel having made any special
investigation concerning the applicability of any other laws,
rules or regulations;
vii. the Company is not an "investment company," as such term is
defined in the Investment Company Act;
viii. each of the Registration Statement, as of its effective date, and
the Prospectus, as of its date, appeared on its face to be
appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and
regulations of the Commission, except that in each case we
express no opinion as to (a) the documents and information
incorporated or deemed to be incorporated by reference therein
(the "Incorporated Documents") or (b) the financial statements,
schedules and other financial and statistical data included or
incorporated by reference therein or excluded therefrom or the
exhibits to the Registration Statement, and we do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the
Prospectus or any of the documents incorporated therein by
reference;
ix. the Designated Securities have been duly and validly authorized,
and, when the Firm Securities are issued and delivered pursuant
to this Agreement and the Pricing Agreement with respect to such
Designated Securities and, in the case of any Optional Designated
Securities, pursuant to Over-
16
allotment Options with respect to such Securities, such
Designated Securities will be duly and validly issued and fully
paid and non-assessable; the Securities conform to the
description thereof contained in the Registration Statement and
the Designated Securities will conform to the description thereof
contained in the Prospectus as amended or supplemented with
respect to such Designated Securities;
x. [the Rights have been duly authorized by the Company and, when
shares of Common Stock are issued by the Company [if Preferred
------------
Securities are to be issued, including upon conversion of the
---------------------------
Preferred Securities,] the Rights attached to such shares will be
validly issued (unless the Rights have theretofore been redeemed
or exchanged or have expired pursuant to the Rights Agreement).]
The foregoing opinion shall be rendered to the Underwriters at the request
of the Company and shall so state therein. In addition, in rendering such
opinion, such counsel shall state that such opinion is limited to matters
arising under the laws of the states of New York and California, the DGCL and
the federal laws of the United States.
e. The Underwriters shall have received at each Time of Delivery for the
Designated Securities an opinion of [_____________________], counsel for the
Underwriters, at and as of such Time of Delivery, in form and substance
satisfactory to the Underwriters, with respect to this Agreement, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may require.
f. The Underwriters shall have received at each Time of Delivery for the
Designated Securities, a letter dated the date hereof or at and as of such Time
of Delivery, as the case may be, in form and substance satisfactory to the
Underwriters, from Deloitte & Touche LLP, independent auditors, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Registration Statement and the Prospectus; provided that the letter delivered at
--------
and as of the Time of Delivery shall use a "cut-off date" not earlier than the
date hereof.
g. Any certificate signed by any officer of the Company and delivered to
the Underwriters or the Underwriters' counsel shall be deemed a representation
and warranty by the Company to the Underwriters as to the matters covered
thereby.
17
5. COVENANTS OF THE COMPANY. In further consideration of the agreements
------------------------
of the Underwriters herein contained, the Company covenants with the
Underwriters as follows:
a. To furnish to the Underwriters, without charge, two signed copies of
the Registration Statement (including exhibits thereto) and a conformed copy of
the Registration Statement (without exhibits thereto) and to furnish to the
Underwriters in New York City, without charge, prior to 5:00 P.M. New York City
time on the business day next succeeding the date of this Agreement and during
the period mentioned in paragraph (c) below, as many copies of the Prospectus
and any supplements and amendments thereto or to the Registration Statement as
the Underwriters may reasonably request.
b. Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to the Underwriters a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which the Underwriters reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under the
Securities Act any prospectus required to be filed pursuant to such Rule.
c. If during such period after the first date of the public offering of
the Designated Securities as in the Underwriters' opinion the Prospectus is
required by law to be delivered in connection with sales by the Underwriters or
a dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Underwriters will furnish to the Company)
to which Designated Securities may have been sold by the Underwriters and to any
other dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with applicable law.
d. To endeavor to qualify the Designated Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Underwriters
shall reasonably request, to comply with such laws as to permit the continuance
of sales and dealings in such jurisdictions until the earlier of (i) one year
after the date of this Agreement and (ii) as long as may be necessary to
complete the distribution of Designated Securities; provided,
18
however, that the Company will not be required to qualify as a foreign
corporation, to file a general consent to service of process in any such
jurisdiction or to take any other action that would subject the Company to
service of process in any suits other than those arising out of the offering of
the Designated Securities or to taxation in respect of doing business in any
jurisdiction in which it is not otherwise subject.
e. To make generally available to the Company's security holders and to
the Underwriters as soon as practicable an earnings statement (which need not be
audited) complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158).
6. EXPENSES. Whether or not the transactions contemplated in this
--------
Agreement or any Pricing Agreement are consummated or this Agreement or any
Pricing Agreement is terminated, the Company agrees to pay or cause to be paid
all expenses incident to the performance of their obligations under this
Agreement and the applicable Pricing Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the Designated
Securities under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, the Prospectus
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the quantities herein above specified, (ii) all
costs and expenses related to the transfer and delivery of the Designated
Securities to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the Designated
Securities under state securities laws and all expenses in connection with the
qualification of the Designated Securities for offer and sale under state
securities laws as provided in Section 5(d) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) the cost of printing certificates representing the
Designated Securities, (v) the costs and charges of any transfer agent,
registrar or depositary and (vi) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 7 entitled "Indemnity and Contribution" and
Section 10 entitled "Miscellaneous," the Underwriters will pay all of their
costs and expenses, including fees and disbursements of its counsel, stock
transfer taxes payable on resale of any of the Designated Securities by it and
any advertising expenses connected with any offers it may make. It is also
understood that nothing in this Agreement or the applicable Pricing
19
Agreement shall change or set aside any existing arrangement or agreement
between the Company and the Underwriters with respect to fees or expenses
incurred or to be incurred in connection with the transactions contemplated by
this Agreement or the applicable Pricing Agreement.
7. INDEMNITY AND CONTRIBUTION. a. The Company agrees to indemnify and
--------------------------
hold harmless the Underwriters and each person, if any, who controls the
Underwriters within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state in the Registration Statement a material fact
necessary in order to make the statements therein not misleading, or caused by
any omission or alleged omission to state in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Underwriters furnished to the Company in
writing by the Underwriters expressly for use therein.
b. The Underwriters agree to indemnify and hold harmless the Company, the
directors of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state in
the Registration Statement a material fact necessary in order to make the
statements therein not misleading, or caused by any omission or alleged omission
to state in the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) a material fact necessary in
order to make the statements therein, in the light of the circumstances under
20
which they were made, not misleading, but only with reference to information
relating to the Underwriters furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement, the Prospectus or
any amendments or supplements thereto.
c. In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a), (b) or (c) of this Section 7, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (i) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Underwriters and all
persons, if any, who control any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section of the Exchange Act and that all such reasonable fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the Underwriters,
such firm shall be designated in writing by the Underwriters. In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for the reasonable fees and expenses of counsel
as contemplated by the
21
second and third sentences of this paragraph, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
d. To the extent the indemnification provided for in paragraph (a), (b)
or (c) of this Section 7 is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Designated 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 indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Company and the Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
e. The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) of this Section 7.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) of this Section 7
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the
22
provisions of this Section 7, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Designated Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that the Underwriters
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
f. The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of the Underwriters or any person controlling the Underwriters
or the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Designated Securities.
8. TERMINATION. This Agreement and each Pricing Agreement shall be
-----------
subject to termination by notice given by the Underwriters to the Company, if
(a) after the execution and delivery of this Agreement and prior to each Time of
Delivery (i) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange or the National Association of Securities Dealers, Inc., (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the Underwriters' judgment, is material and adverse
and (b) in the case of any of the events specified in clauses (a)(i) through
(iv) such event, singly or together with any other such event, makes it, in the
Underwriters' judgment, impracticable to market the Designated Securities on the
terms and in the manner contemplated in the Prospectus.
9. Default by One or More of the Underwriters. a. If any Underwriter
------------------------------------------
shall default in its obligation to purchase the Firm Securities or Optional
Securities which it has agreed to purchase under the Pricing Agreement relating
to such Securities, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Securities on the
terms contained herein. If within thirty-six hours after such
23
default by any Underwriter the Representatives do not arrange for the purchase
of such Firm Securities or Optional Securities, as the case may be, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Securities, the
Representatives or the Company shall have the right to postpone a Time of
Delivery for such Securities for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
b. If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate number of such Securities which remains
unpurchased does not exceed one-eleventh of the aggregate number of the Firm
Securities or Optional Securities, as the case may be, to be purchased at the
respective Time of Delivery, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Firm Securities or
Optional Securities, as the case may be, which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Securities and,
in addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Firm Securities or Optional Securities, as the
case may be, which such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Securities or Optional Securities, as the case may be, of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
c. If, after giving effect to any arrangements for the purchase of the
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate number of Firm Securities or Optional
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number of the Firm Securities
24
or Optional Securities, as the case may be, to be purchased at the respective
Time of Delivery, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require non-
defaulting Underwriters to purchase Firm Securities or Optional Securities, as
the case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Securities or the Over-allotment Option relating
to such Optional Securities, as the case may be, shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. MISCELLANEOUS. If this Agreement or any applicable Pricing Agreement
-------------
shall be terminated by the Underwriters because (A) of any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or (B) if for any reason the Company shall be
unable to perform its obligations under this Agreement, then the Company will
reimburse the Underwriters, for all out-of-pocket expenses (including the fees
and disbursements of its counsel) reasonably incurred by the Underwriters in
connection with this Agreement or the offering contemplated hereunder. If any
Pricing Agreement or Over-allotment Option shall be terminated pursuant to
Section 8 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Firm Securities or Optional Securities with
respect to which such Pricing Agreement shall have been terminated except as
provided in Sections 6 and 7 hereof; but, if for any other reason, Designated
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided in
Sections 6 and 7 hereof.
11. EFFECTIVENESS. Each of this Agreement and each applicable Pricing
-------------
Agreement shall become effective upon the execution and delivery hereof and
thereof, as applicable, by the parties hereto.
12. COUNTERPARTS. This Agreement and each applicable Pricing Agreement
------------
may be signed in two or more counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
25
13. APPLICABLE LAW. This Agreement and each applicable Pricing Agreement
--------------
shall be governed by and construed in accordance with the laws of the State of
New York including, without limitation, Section 5-1404 of the New York General
Obligations Law.
14. HEADINGS. The headings of the sections of this Agreement and each
--------
applicable Pricing Agreement have been inserted for convenience of reference
only and shall not be deemed a part of this Agreement.
15. NOTICES. Except as otherwise provided in this Agreement and in the
-------
applicable Pricing Agreement, all notices, requests and other communications to
any person provided for hereunder shall be in writing and shall be given to such
person (a) in the case of any Underwriter, to such Underwriter at the address
set forth in its Underwriters' Questionnaire, or telex constituting a
Questionnaire, which address will be supplied to the Company by the
Representatives upon request, or (b) in the case of the Company, at McKesson
Corporation, Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, to the attention
of its General Counsel, or at such other address, or to the attention of such
other officer, as the Company shall have furnished to the Underwriters in
writing. Each such notice, request or other communication shall be effective
(i) if given by mail, 72 hours after such communication is deposited in the mail
with first class postage prepaid, addressed as aforesaid or (ii) if given by any
other means (including without limitation, by air courier), when delivered at
the address specified above. In all dealings hereunder, the Representatives of
the Underwriters of Designated Securities shall act on behalf of each of such
Underwriter, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice
26
or agreement on behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
Very truly yours,
McKESSON CORPORATION
By:______________________________
Name:
Title:
Accepted, __________________
____________________________
____________________________
By: _______________________
By:_________________________
Name: ___________________
Title: ________________
27
ANNEX I
Pricing Agreement
-----------------
Ladies and Gentlemen:
McKesson Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ___________, ____ (the "Underwriting Agreement"), between the
Company on the one hand and _________________________________ on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities" consisting of Firm Securities and any Optional Securities the
Underwriters may elect to purchase). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its 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; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 1 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 15 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 15 are set forth in Schedule
II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
I-1
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the number of Firm Securities set forth opposite the name of
such Underwriters in Schedule I hereto [and, (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional
Securities, as provided below, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at the purchase price to the Underwriters
set forth in Schedule II hereto that portion of the number of Optional
Securities as to which such election shall have been exercised].
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Securities set forth
opposite the name of such Underwriters in Schedule I hereto on the terms
referred to in the paragraph above for the sole purpose of covering over-
allotments in the sale of the Firm Securities. Any such election to purchase
Optional Securities may be exercised by written notice from the Representatives
to the Company given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Securities to
be purchased and the date on which such Optional Securities are to be delivered,
as determined by the Representatives, but in no event earlier than the First
Time of Delivery or, unless the Representatives and the Company otherwise agree
in writing, no earlier than two or later than ten business days after the date
of such notice.]
I-2
If the foregoing is in accordance with your understanding, please sign and
return to us [one for the Company and one for each of the Representatives plus
one for each counsel] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
McKESSON CORPORATION
By:_____________________________
Name:
Title:
Accepted as of the date hereof:
------------------------------
Name(s) of Co-Representative(s)
By:________________________________
(_____________________)
I-3
SCHEDULE I
Maximum
Number
of Optional
Number of Securities
Firm Securities Which
Underwriters to be Purchased May be
Purchased
---------------- ------------------- -----------------
[Name(s) of Representative(s)]
[Names of other Underwriters]
Total =================== =================
I-4
SCHEDULE II
Number of Designated Securities:
Number of Firm Securities:
Maximum Number of Optional Securities:
Initial Offering Price to Public:
[$........ per Security] [Formula]
Purchase Price by Underwriters:
[$........ per Security] [Formula]
Commission Payable to Underwriters:
$........ per Share
Form of Designated Securities:
Definitive form, to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of The Depository
Trust Company or [its designated custodian, the Representatives]
Specified Funds for Payment of Purchase Price:
Blackout Provisions:
Time of Delivery:
......... a.m. (New York City time), .................., 19..
Closing Location:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Other Terms:
I-5
