EXHIBIT 1.B
Debt Securities
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to you and the other underwriters named in Schedule
II hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities") to be issued under the indenture (the
"Indenture") identified in such Schedule I, between the Company and the trustee
(the "Trustee") identified therein. If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives" shall each be deemed to refer to such
firm or firms.
1. Representations and Warranties. The Company
represents and warrants to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file number of
which is set forth in Schedule I hereto), which has become effective, for
the registration of the Securities under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies in all other material respects with such rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424") a supplement to the form of prospectus included
in the registration statement relating to the initial
offering of the Securities and the plan of distribution thereof and has
previously advised you of all further information (financial and other)
with respect to the Company to be set forth therein. The term
"Registration Statement" means the registration statement, as amended at
the date of this Agreement, including the exhibits thereto, financial
statements, and all documents incorporated therein by reference pursuant to
Item 12 of Form S-3 (the "Incorporated Documents"), and such prospectus as
then amended, including the Incorporated Documents, is hereinafter referred
to as the "Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant to
Rule 424 (including the Basic Prospectus as so supplemented), is
hereinafter called the "Final Prospectus". Any preliminary form of the
Basic Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus". Any reference herein to the
Registration Statement, the Basic Prospectus, any Interim Prospectus or the
Final Prospectus shall be deemed to refer to and include the Incorporated
Documents which were filed under the Securities Exchange Act of 1934 (the
"Exchange Act"), on or before the date of this Agreement or the issue date
of the Basic Prospectus, any Interim Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any Incorporated Documents under the
Exchange Act after the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the
case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
with the Commission pursuant to Rule 424, when, before the Closing Date
(hereinafter defined), any amendment to the Registration Statement becomes
effective, when, before the Closing Date, any Incorporated Document is
filed with the Commission, when any supplement to the Final Prospectus is
filed with the Commission and at the Closing Date, the Registration
Statement, the Final Prospectus and any such amendment or supplement will
comply in all material respects with the applicable requirements of the
Securities Act and the Rules, and the Incorporated Documents will comply in
all material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations adopted by the
Commission thereunder; on the date hereof and on the Closing Date, the
Indenture shall have been qualified under and will comply in all material
respects with the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"); on the date it became effective, the Registration
Statement did not, and, on the date that any post-effective amendment to
the Registration
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Statement becomes effective, the Registration Statement as amended by such
post-effective amendment did not or will not, as the case may be, 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; on the date the Final Prospectus is filed with the
Commission pursuant to Rule 424 and on the Closing Date, the Final
Prospectus, as it may be amended or supplemented, will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and on said dates,
the Incorporated Documents will comply in all material respects with the
applicable provisions of the Exchange Act and rules and regulations of the
Commission thereunder, and, when read together with the Final Prospectus,
or the Final Prospectus as it may be then amended or supplemented, 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, in light of the circumstances under which they are made, not
misleading; provided that the foregoing representations and warranties in
this paragraph (b) shall not apply to statements or omissions made in
reliance upon and in conformity with written information furnished to the
Company by or through the Representatives on behalf of any Underwriter
specifically for use in connection with the preparation of the Registration
Statement or the Final Prospectus, as they may be amended or supplemented,
or to any statements in or omissions from the statement of eligibility and
qualification on Form T-1 of the Trustee under the Trust Indenture Act
("Form T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of their
respective dates, complied in all material respects with the requirements
of the Securities Act and of the Rules and did not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Commission has not issued
an order preventing or suspending the use of the Basic Prospectus or any
Interim Prospectus.
(d) The nationally recognized firm of independent public accountants
whose report appears in the Company's most recent Annual Report on
Form 10-K, which is incorporated by reference in the Final Prospectus, are
independent public accountants as required by the Securities Act and the
Rules.
(e) In the event that a report of a nationally recognized firm of
independent public accountants regarding
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historical financial information with respect to any entity acquired by the
Company is required to be incorporated by reference in the Final
Prospectus, such independent public accountants were independent public
accountants, as required by the Securities Act and the Rules, during the
period of their engagement to examine the financial statements being
reported on and at the date of their report.
(f) The audited consolidated financial statements of the Company in
the Final Prospectus and the Registration Statement present fairly on a
consolidated basis the financial position, the results of operations,
changes in common stock and other stockholder's equity and cash flows of
the Company and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The unaudited consolidated financial statements of the Company,
if any, included in the Final Prospectus and the Registration Statement and
the related notes are true, complete and correct, subject to normally
recurring changes resulting from year-end audit adjustments, and have been
prepared in accordance with the instructions to Form 10-Q.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material adverse
change in or any adverse development which materially affects the business,
properties, financial condition or results of the Company or the Company
and its subsidiaries taken as whole, from the dates as of which information
is given in the Registration Statement and Final Prospectus.
(h) The Securities conform to the description thereof contained in
the Final Prospectus, are duly and validly authorized, and, when validly
authenticated, issued and delivered in accordance with the Indenture and
sold to the Underwriters as provided in this Agreement, will be validly
issued and outstanding obligations of the Company entitled to the benefits
of the Indenture.
(i) The Company does not have any subsidiaries having business or
properties that are material to the business and properties of the Company
and its subsidiaries taken as a whole with the exception of ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇") and the possible exception of ▇▇▇▇▇▇ Commercial Paper Inc.
(the "Named Subsidiary"). Neither the Company nor any of the Named
Subsidiary is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its subsidiaries
taken as a whole. The execution, delivery and performance of this
Agreement will not conflict with, result in the creation or imposition of
any material lien, charge
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or encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument, or result in a violation of
the corporate charter or by-laws of the Company or any of its subsidiaries
or any order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, the Named Subsidiary or their property.
Except as set forth in the Final Prospectus or as required by the
Securities Act, the Exchange Act, the Trust Indenture Act and applicable
state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement.
(j) The Company and the Named Subsidiary have been duly organized,
are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations and are fully
registered as a broker-dealer, broker, dealer or investment advisor, as the
case may be, in each jurisdiction in which their respective ownership of
property or the conduct of their respective businesses requires such
qualification or registration and in which the failure to qualify or
register would be reasonably likely, individually or in the aggregate, to
have a material adverse effect on the business, condition or properties of
the Company and its subsidiaries taken as a whole. Each of the Company and
its Named Subsidiary holds all material licenses, permits, and certificates
from governmental authorities necessary for the conduct of its business and
owns, or possesses adequate rights to use, all material rights necessary
for the conduct of such business and has not received any notice of
conflict with the asserted rights of others in respect thereof; and each of
the Company and its Named Subsidiary has the corporate power and authority
necessary to own or hold its properties and to conduct the businesses in
which it is engaged. Except as may be disclosed in the Registration
Statement and the Final Prospectus, all outstanding shares of capital stock
of the Named Subsidiary are owned by the Company, directly or indirectly
through subsidiaries, free and clear of any lien, pledge and encumbrance or
any claim of any third party and are duly authorized, validly issued and
outstanding, fully paid and non-assessable.
(k) Except as described in the Registration Statement and the Final
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the Company
or any of its subsidiaries which might reasonably be expected to result in
any material adverse change in the business, properties, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole or which is required
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to be disclosed in the Registration Statement and the Final Prospectus.
(l) The certificates delivered pursuant to paragraph (f) of Section 6
hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Securities
were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, in all material respects true and complete.
2. Sale and Purchase of the Securities. The Company agrees to sell
to each Underwriter, and each Underwriter, on the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein stated, agrees to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedule II hereto, except that,
if Schedule I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto, less
the respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts (as hereinafter defined) are herein called "Contract
Securities". The obligations of the Underwriters under this Agreement are
several and not joint.
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities, or a portion thereof, from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve, and the Underwriters will endeavor to
make such arrangements. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds and educational and charitable institutions. The Company will make
Delayed Delivery Contracts in all cases where sales of Contract Securities
arranged by the Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery Contract must be for
not less than the minimum principal amount set forth in Schedule I hereto and
the total principal amount of Contract Securities may not exceed the maximum
principal amount set forth in Schedule I hereto. The Underwriters will not have
any responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which bears the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter
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bears to the total principal amount of Securities set forth in Schedule II
hereto, except to the extent that the Representatives determine that such
reduction shall be otherwise than in such proportion and so advise the Company
in writing; provided, however, that the total principal amount of Securities to
be purchased by all Underwriters shall be the total principal amount set forth
in Schedule II hereto less the total principal amount of Contract Securities.
3. Delivery and Payment. Delivery by the Company of the
Underwriters' Securities to the Representatives for the respective accounts of
the several Underwriters and payment by the Underwriters therefor by certified
or official bank check or checks payable in, or by wire transfer of, immediately
available (federal) funds to or upon the order of the Company shall take place
at the office, on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date").
Concurrently with the delivery of any payment for Underwriters'
Securities as provided in this Section 3, the Company will deliver to the
Representatives for the respective accounts of the several Underwriters a check
in an amount equal to the fee set forth in Schedule I hereto with respect to the
principal amount of Securities for which Delayed Delivery Contracts are made.
The Underwriters' Securities will be registered in such names and in
such authorized denominations as the Representatives may request no less than
two full business days in advance of the Closing Date. The Company agrees to
have the Underwriters' Securities available for inspection, checking and
packaging by the Representatives at such place as is designated by the
Representatives, not later than 1:00 p.m., New York City time, on the business
day prior to the Closing Date.
4. Offering by Underwriters. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed any Interim Prospectus and are authorized to distribute the Final
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Securities has been terminated, the Representatives will so advise the
Company.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 as required
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thereby and will promptly advise the Representatives (A) when the Final
Prospectus shall have been filed with the Commission pursuant to Rule 424,
(B) when any amendment to the Registration Statement relating to the
Securities shall have become effective, (C) of any request by the
Commission for any amendment of the Registration Statement, the Final
Prospectus, the Basic Prospectus or any Interim Prospectus, or for any
additional information, (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
qualification of the Indenture or the institution or threatening of any
proceedings for that purpose and (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. After the date of this Agreement and
prior to the termination of the offering of these Securities the Company
will not file any amendment of the Registration Statement or amendment or
supplement to the Final Prospectus (except an amendment or supplement to
the Final Prospectus that is deemed to be incorporated by reference in the
Final Prospectus pursuant to Item 12 of Form S-3) without the consent of
the Representatives and will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof. Prior to receipt of the advice to be given by the
Representatives pursuant to Section 4, the Company will not file any
document that would be deemed to be incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3 without delivering to the
Representatives a copy of the document proposed to be so filed, such
delivery to be made at least twenty-four hours prior to such filing, and
the Company will consult with the Representatives as to any comments which
the Representatives make in a timely manner with respect to the document so
delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time during which a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event
occurs as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or supplement
the Final Prospectus to comply with the Securities Act or the Rules, 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 and will use its best efforts to cause
any amendment of the Registration Statement containing an
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amended Final Prospectus to be made effective as soon as possible.
(c) The Company will deliver to the Representatives, without charge,
(i) signed copies of the Registration Statement relating to the Securities
and of any amendments thereto (including all exhibits filed with, or
incorporated by reference in, any such document) and (ii) as many conformed
copies of the Registration Statement and of any amendments thereto which
shall become effective on or before the Closing Date (excluding exhibits)
as the Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will deliver, without
charge to the Representatives and to Underwriters and dealers, at such
office or offices as the Representatives may designate, as many copies of
the Basic Prospectus, any Interim Prospectus and the Final Prospectus as
the Representatives may reasonably request.
(e) The Company will make generally available to its security holders
and to the Representatives as soon as practicable an earnings statement
(which need not be audited) of the Company and its subsidiaries, covering a
period of at least 12 months beginning after the date the Final Prospectus
is filed with the Commission pursuant to Rule 424, which will satisfy the
provisions of Section 11(a) of the Securities Act.
(f) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Securities for offering and sale under the laws of such jurisdictions as
the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(g) So long as any Securities are outstanding, the Company will
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission.
(h) If the Company has applied for the listing of the Securities on
the New York Stock Exchange Inc. (the "NYSE"), it will use its best efforts
to cause such listing to be approved as soon as possible.
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(i) For a period beginning at the time of execution of this Agreement
and ending on the later of the business day following the Closing Date or
following the date on which any price restrictions on the sale of the
Securities are terminated, without the prior consent of the
Representatives, the Company will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company covered by the
Registration Statement or any other registration statement filed under the
Securities Act.
(j) The Company will use its best efforts to do and perform all
things to be done and performed hereunder prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Securities to be
purchased hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of any material statements made in any certificates,
opinions, affidavits, written statements or letters furnished to the
Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel")
pursuant to this Section 6, to the performance by the Company of its respective
obligations hereunder and to the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the
second business day following the date of this Agreement or such later date
and time as shall be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the qualification of
the Indenture, shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission and any requests for
additional information on the part of the Commission (to be included in the
Registration Statement or the Final Prospectus or otherwise) shall have
been complied with to the reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall not have
been any change or decrease specified in the letter referred to in
paragraph (g) of this Section 6 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
offering and delivery of the Securities as contemplated by the Registration
Statement and the Final Prospectus.
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(d) The Company shall have furnished to the Representatives the
opinion of a Deputy General Counsel or the Chief Legal Officer for the
Company, dated the day of the Closing Date, to the effect that:
(i) The Company has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its
incorporation with all requisite corporate power and authority to own
and operate its properties and to conduct its business as described in
the Final Prospectus.
(ii) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Final
Prospectus.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms; and the
Securities have been duly authorized, executed and issued by the
Company, and assuming due authentication by the Trustee and upon
payment and delivery in accordance with the Underwriting Agreement,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture; provided however, that the
foregoing is subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and by an implied covenant of good faith and fair dealing.
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement, except for (1) such
consents, approvals, authorizations or orders as have been obtained
under the Securities Act and such as may be required under the
Exchange Act and the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters, and (2) the qualification of the Indenture under the
Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules which
have not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules.
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(vi) To the best of such counsel's knowledge, neither the Company
nor its Named Subsidiary is in violation of its corporate charter or
by-laws, or in default under any material agreement, indenture or
instrument known to such counsel, the effect of which violation or
default would be material to the Company and its subsidiaries taken as
a whole.
(vii) This Agreement and, to the extent applicable, the Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company; the execution, delivery and performance of this
Agreement and any Delayed Delivery Contracts by the Company will not
conflict with, or result in the creation or imposition of any material
lien, charge or encumbrance upon any of the assets of the Company or
its Named Subsidiary pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument known to such
counsel and to which the Company or its Named Subsidiary is a party or
is bound, or result in a violation of the corporate charter or by-laws
of the Company or its Named Subsidiary or any order, rule or
regulation known to such counsel of any court or governmental agency
having jurisdiction over the Company, its Named Subsidiary or any of
their respective properties, the effect of which would be material to
the Company and its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under the
Securities Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose is pending or
threatened by the Commission.
(ix) The Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (except that no opinion need
be expressed as to the financial statements or other financial or
statistical data or the Form T-1 of the Trustee under the Trust
Indenture Act included or incorporated by reference therein) comply as
to form in all material respects with the requirements of the
Securities Act and the Rules.
(x) If the Securities are to be listed on the NYSE,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with the NYSE, and such
counsel has no reason to believe that the Securities will not be
authorized for
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listing, subject to official notice of issuance and evidence of
satisfactory distribution.
(xi) The Named Subsidiary is a duly organized and validly
existing corporation in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate power
and authority to own and operate its properties and to conduct its
business as described in the Final Prospectus. Each of the Company
and its Named Subsidiary is duly qualified to do business as a foreign
corporation, is in good standing and is duly registered as a
broker-dealer, broker, dealer or investment advisor, as the case may
be, in each jurisdiction in which the nature of the business conducted
by it or in which the ownership or holding by lease of the properties
owned or held by it require such qualification or registration and
where the failure to so qualify or register would have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(xii) All the outstanding shares of capital stock of the
Company's Named Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable and, except for
directors' qualifying shares, are owned by the Company or a subsidiary
of the Company free and clear of any claims, liens, encumbrances and
security interests.
(xiii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of this
Agreement or is required to be disclosed in the Final Prospectus which
is not disclosed and correctly summarized therein.
Such opinion shall also contain a statement that although such counsel
is not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Final Prospectus (except as to those matters stated in
paragraph (ii) of such opinion), such counsel has no reason to believe that (i)
the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or (ii) the Final Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that no opinion need be expressed as to the
financial statements or other financial or statistical data or the Form T-1
included or incorporated by reference therein).
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In rendering such opinion, such counsel may rely upon opinions of
local counsel satisfactory to the Representatives for matters not governed by
New York law and may rely as to matters of fact, to the extent he deems proper,
upon certificates or affidavits of officers of the Company, the Trustee and
public officials. Such counsel may rely on a certificate of the Trustee with
respect to the execution of the Securities by the Company and the authentication
thereof by the Trustee.
(e) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of the Closing Date, with
respect to the issuance and sale of the Securities, the Registration Statement,
the Final Prospectus and other related matters as the Representatives may
reasonably 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.
(f) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Vice President and its Chief Financial Officer or its Treasurer,
dated the day of the Closing Date, to the effect that, to the best of their
knowledge after due inquiry:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date,
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(iii)(x) The Registration Statement does not contain 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, (y) the Final Prospectus does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (z) since the effective date of the
Registration Statement there has not occurred any event required to be
set forth in an amended or supplemented prospectus which has not been
so set forth.
14
(g) At the Closing Date, a nationally recognized firm of
independent public accountants shall have furnished to the Representatives a
letter, dated the day of the Closing Date, confirming that they are
independent auditors with respect to the Company within the meaning of the
Securities Act and in form and substance satisfactory to the Representatives,
stating in effect that:
(i) In their opinion, the consolidated financial statements of
the Company and its subsidiaries, and the supporting schedules,
included in the Registration Statement and the Final Prospectus and
audited by them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
included in the Registration Statement and the Final Prospectus and of
the latest unaudited consolidated financial statements made available
by the Company and Lehman, carrying out certain specified procedures
(but not an audit in accordance with generally accepted auditing
standards), a reading of the minutes of the meetings of the directors
of the Company and Lehman, and inquiries of certain officials of the
Company and its subsidiaries, who have responsibility for financial
and accounting matters of the Company and its subsidiaries, as to
transactions and events subsequent to the date of the most recent
audited consolidated financial statements included in the Registration
Statement and the Final Prospectus, nothing came to their attention
that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the Company and
its subsidiaries, if any, included in the Registration Statement
and the Final Prospectus, for them to be in conformity with
generally accepted accounting principles; and such financial
statements do not comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and
the published instructions, rules and regulations thereunder.
(B) the unaudited capsule information of the Company and its
subsidiaries, if any, included in the Registration Statement and
the Final Prospectus does not agree with the amounts set forth in
the unaudited consolidated financial statements of the Company
from which it was
15
derived or was not determined on a basis substantially consistent
with that of the corresponding financial information in the
latest audited financial statements of the Company included in
the Registration Statement and the Final Prospectus.
(C)(I) as of the latest date as of which the Company and its
subsidiaries have monthly financial statements, there was any
decrease in the capital stock, additional paid-in capital or
related earnings, or increase in long-term indebtedness of the
Company and its subsidiaries, as compared with the amounts shown
in the most recent consolidated statement of financial condition
of the Company and its subsidiaries included in the Registration
Statement and the Final Prospectus, (II) with respect to the
period subsequent to the date of the most recent financial
statements included in the Registration Statement and the Final
Prospectus and extending through the latest date as of which the
Company and its subsidiaries have monthly financial statements,
there was a consolidated net loss or (III) with respect to the
amounts of net capital or excess net capital of Lehman determined
pursuant to Commission Rule 15c3-1 and shown in the most recent
financial statement of Lehman filed pursuant to Commission Rule
17a-5, there has been any decrease in such amounts as compared
with the amounts shown in the most recent consolidated financial
statements included in the Registration Statement and the Final
Prospectus;
(D) as of a specified date not more than three business
days prior to the date of the letter, there was any decrease in
the capital stock or additional paid-in capital, or increase in
long-term indebtedness of the Company and its subsidiaries, as
compared with the amounts shown in the most recent consolidated
statement of financial condition of the Company and its
subsidiaries included in the Registration Statement and the Final
Prospectus;
except in all instances for increases or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof, unless said
explanation is not deemed necessary by the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus,
16
(x) they have read such pro forma financial statements, (y) they have
made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company as
to the basis for their determination of the pro forma adjustments and
whether such pro forma financial statements comply as to form in all
material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X and (z) they have proved the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts; and as a result thereof, nothing came to their
attention that caused them to believe that such pro forma financial
statements do not so comply with Rule 11-02 of Regulation S-X and that
such pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(iv) They have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived from dollar amounts, and has been
obtained from the general accounting records of the Company) set forth
in the Registration Statement, as amended, and the Final Prospectus,
as amended or supplemented, and in Exhibit 12 to the Registration
Statement, including specified information, if any, included or
incorporated from the Company's Annual Report on Form 10-K
incorporated therein or specified information, if any, included or
incorporated from any of the Company's Quarterly Reports on Form 10-Q
or its Current Reports on Form 8-K incorporated therein, agrees with
the accounting records of the Company and its subsidiaries or
computations made therefrom, excluding any questions of legal
interpretation.
(h) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt securities by
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Corporation.
(i) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as the
Representatives or Underwriters' Counsel may reasonably request.
17
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing, or by telegraph confirmed in writing.
7. Expenses. (a) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company will
pay all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issuance, sale and delivery of the
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), any
Interim Prospectus, the Basic Prospectus, the Final Prospectus and any
amendments thereof or supplements thereto and the Indenture, and the rating of
the Securities by one or more rating agencies, all costs and expenses (including
fees of Underwriters' Counsel and their disbursements) incurred in connection
with blue sky qualifications, advising on the legality of the Securities for
investment, the filing requirements, if any, of the National Association of
Securities Dealers, Inc. in connection with its review of corporate financings,
the fee for listing the Securities on the NYSE, the fees and expenses of the
Trustee and all costs and expenses of the printing and distribution of all
documents in connection with such offering. Except as provided in this Section
7, the Company will have no responsibility to the Underwriters for the
Underwriters' own costs and expenses, including the fees of Underwriters'
Counsel and any advertising expenses in connection with any offer the
Underwriters may make.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls such Underwriter within
the meaning of the Securities
18
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law 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 a material fact contained in the
Registration Statement, as originally filed or in any amendment thereof, or in
any Interim Prospectus, the Basic Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, 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
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) 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 any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company as herein stated by the Representatives on behalf of any Underwriter
specifically for use in connection with the preparation thereof, and (ii) such
indemnity with respect to the Basic Prospectus or any Interim Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus at or prior to the confirmation
of the sale of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Interim Prospectus was
corrected in the Final Prospectus, unless such failure to deliver the Final
Prospectus was a result of noncompliance by the Company with Section 5(d)
hereof. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law 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 a material fact
contained in the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or
19
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 the
same was made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Representatives on
behalf of such Underwriter specifically for use in the preparation thereof, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have. The
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" in the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the Registration Statement and the Final Prospectus, as the case may be, and
you, as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
8 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 this
Section 8, 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
this Section 8. 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 participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and either (i) the indemnifying party or parties and
the indemnified party or parties mutually agree or (ii) representation of both
the indemnifying party or parties and the indemnified party or parties by the
same counsel is inappropriate under applicable standards of professional conduct
due to actual or potential differing interests between them, the indemnified
party or parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed
20
counsel in connection with the assumption of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a) representing the indemnified parties under subparagraph (a), as the case may
be, who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company on grounds of policy or other similar
grounds, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discounts appearing on the cover page of
the Final Prospectus bear to the public offering prices appearing thereon and
the Company is responsible for the balance; provided, however, that (i) in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters) be responsible for any amount in excess of the underwriting
discounts applicable to the Securities purchased by such Underwriter hereunder
and (ii) 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. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
the Securities Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Securities Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to clauses (i) and (ii) of this subparagraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this
subparagraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be
21
sought from any other obligation it or they may have hereunder or otherwise than
under this subparagraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for all of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bear to the
aggregate principal amount of Securities set opposite the names of the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of the Securities, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting Underwriters or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing herein contained shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any non-defaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
at or prior to delivery of and payment for all the Securities, if, prior to such
time (i) trading in securities generally on the NYSE or the over-the-counter
market shall have been suspended or limited or minimum prices shall have been
established on the NYSE or the over-the-counter market, (ii) a banking
moratorium shall have been declared either by federal or New York State
authorities, (iii) any new restriction materially affecting the distribution of
the Securities shall have become effective; trading in any securities of the
Company shall have been suspended or halted by any national securities exchange,
the National Association of Securities Dealers, Inc. or the Commission, (iv) the
United States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States, or (v) there shall have been such a
material adverse change in national or international political, financial or
economic conditions, national or international equity markets or currency
22
exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Securities.
11. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Securities.
12. Notices. All communications hereunder will be in writing, and,
if sent to the Representatives will be mailed, delivered, telegraphed or telexed
and confirmed to them, at the address specified in Schedule I hereto; or, if
sent to the Company will be mailed, delivered, telegraphed or telexed and
confirmed to it at 3 World Financial Center, New York, New York 10285,
Attention: Chief Financial Officer.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their successors and, to the extent and only
to the extent stated in Section 8 hereof, the officers and directors and
controlling persons referred to in Section 8 hereof, and except as provided in
Section 8 hereof, no person other than the parties hereto and their respective
successors will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By
-----------------------------------
Title:
23
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇ BROTHERS INC.
By
-----------------------------
Title:
Acting on behalf of the Representatives named in Schedule I annexed hereto
and the several Underwriters named in Schedule II annexed hereto.
24
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-14791
Representative and Address: ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Indenture, Title, Purchase Price and Description of Securities:
Indenture:
Title:
Principal amount:
Price to public:
Purchase price:
Interest rate:
Time of payment of
interest:
Maturity:
Sinking fund
provisions:
Redemption
provisions:
Repayment:
Closing Date, Time and Location:
Date:
Time:
Location: ▇▇▇▇▇▇ Brothers Holdings Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Delayed Delivery
Arrangements:
SCHEDULE II
Principal
Amount of
Securities
to be
Underwriters Purchased
------------
▇▇▇▇▇▇ Brothers Inc. .............................................$
Total.......................................................$
------------
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ Brothers Holdings
Inc. (the "Company"), and the Company agrees to sell to the undersigned, on
, 19 (the "Delivery Date"), $ principal amount of the Company's %
due (the "Securities") offered by the Company's Prospectus dated
, 19 , and related Prospectus Supplement dated , 19 , receipt of a
copy of which is hereby acknowledged, at a purchase price of % of the
principal amount thereof, plus accrued interest or amortization of original
issue discount, if any, thereon from , 19 , to the date of payment
and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 a.m., New York City time, on the Delivery Date to or upon the
order of the Company in New York Clearing House (next day) funds, at your office
or at such other place as shall be agreed between the Company and the
undersigned upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such 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. The
obligation of the undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the Securities to be sold
and delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
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 acceptance of this contract and other similar
contracts 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 required 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, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
_________________________________________
(Name of Purchaser)
By_________________________________
(Signature and Title of Officer)
_________________________________________
(Address)
Accepted:
▇▇▇▇▇▇ Brothers Holdings Inc.
By___________________________________
(Authorized Signature)
2
