Exhibit 1-b
UNDERWRITING AGREEMENT
(Preferred Stock and Depositary Shares)
_______ __, 199_
Xxxxxx Xxxxxxx, Xxxx Xxxxxx,
Discover & Co.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a Delaware corporation (the
"Company"), proposes to [issue and sell ____________ shares of its ___%
Cumulative Preferred Stock, par value $.01 per share, stated value $____ per
share (the "Firm Offered Securities")](1) [sell ______ Depositary Shares (the
"Firm Offered Securities"), each representing a [fraction] interest in its __%
Cumulative Preferred Stock, par value $.01 per share, stated value $______ per
share].(2) The Company also proposes to [issue and sell not more than an
additional ___________ shares of its ___% Cumulative Preferred Stock, par
value $.01 per share, stated value $___ per share (the "Additional Offered
Securities"),](1 ) [issue and sell not more than an additional ________
Depositary Shares (the "Additional Offered Securities"), each representing a
[fraction] interest in its __% Cumulative Preferred Stock, par value $.01 per
share, stated value $______ per share,](2) if and to the extent that we shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such Additional Offered Securities referred to below. The Firm Offered
Securities and the Additional Offered Securities are hereinafter collectively
referred to as the "Offered Securities" or as the ["Preferred
Shares"/"Depositary Shares"].(3) [The Depositary Shares will be issued by
______________ (the "Depositary") pursuant to the terms of a Deposit Agreement
(the "Deposit Agreement") to be entered into among the Company, the
Depositary, and the holders from time to time of Depositary Receipts issued
thereunder. The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement (the "Depositary Receipts"). The
shares of the Company's ___% Cumulative Preferred Stock, without par value,
stated value $________ per share, relating to the Depositary Shares are
hereinafter referred to as the "Underlying Preferred Shares".](4)
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(1) Include only for issuances of Preferred Stock.
(2) Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
(3) Delete as appropriate.
(4) Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the number of Firm Offered Securities
set forth below opposite their names at $____ per share plus accrued
dividends, if any, from ________ __, 199_ to the date of payment and delivery:
Number of Firm
Offered Securities
Underwriter To Be Purchased
[Xxxx Xxxxxx Xxxxxxxx Inc.]
[Xxxxxx Xxxxxxx & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters will pay for such Firm Offered Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on ________ __, 199_,
or at such other time, not later than 5:00 p.m. (New York time) on ________
__, 199_, as shall be designated by the Manager. The time and date of such
payment and delivery are hereinafter referred to as the "Closing Date."
Subject to the terms and conditions set forth herein and
incorporated by reference herein, the Company hereby agrees to sell to the
Underwriters the Additional Offered Securities, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to __________
Additional Offered Securities at the purchase price set forth above plus
accrued dividends, if any. Additional Offered Securities may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Offered Securities.
If any Additional Offered Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Offered Securities (subject to such adjustments to eliminate
fractional shares as we may determine) that bears the same proportion to the
total number of Additional Offered Securities to be purchased as the number of
Firm Offered Securities set forth above opposite the name of such Underwriter
bears to the total number of Firm Offered Securities. The Underwriters will
pay for any Additional Offered Securities upon delivery thereof at the offices
of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00
a.m. (New York time) on such date (which may be the same as the Closing Date
but shall in no event be earlier than the Closing Date nor later than ten
business days after the giving of the notice hereinafter referred to) as shall
be designated in a written notice from us to the Company of our determination,
on behalf of the Underwriters, to purchase a number, specified in such notice,
of Additional Offered Securities. The time and date of such payment are
hereinafter referred to as the "Option Closing Date." The notice of the
determination to exercise the option to purchase Additional Offered Securities
may be given at any time within 30 days after the date of this Agreement. The
several obligations of the Underwriters to purchase Additional Offered
Securities are subject to the delivery to us on the Option Closing Date of
such documents as we may reasonably request with respect to the good standing
of the Company, the due authorization and issuance of the Additional Offered
Securities [, the Underlying Preferred Shares](5) and other matters related to
the issuance of the Additional Offered Securities [and the Underlying
Preferred Shares]*.
(5) Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
The Offered Securities [and the Underlying Preferred Shares]*
shall have the terms set forth in the Prospectus dated June 2, 1997 and the
Prospectus Supplement dated __________ __, 199_, including the following:
Terms of [Underlying]* Preferred Shares
Dividends:
Rate:
Dividend Payment Dates: _______ __, _______ __,_______ __, and
_______ __, commencing _______ __, 199_; Dividends cumulate from _______ __,
199_ Liquidation Preference: $_____ per share
Redemption:
[Other Terms:]
[Terms of Depositary Shares
Dividends:
Rate:
Dividend Payment Dates: _______ __, _______ __, _______ __, and
_______ __, commencing _______ __, 199_; Dividends cumulate from _______ __,
199_
Liquidation Preference: $_____ per share (equivalent to $____
per Underlying Preferred Share)
Redemption:
[Other Terms:]](6)
------------
(6) Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all the provisions contained in the
document entitled Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. Underwriting
Agreement Standard Provisions (Preferred Stock and Depositary Shares) dated
June 2, 1997, (the "Standard Provisions"), a copy of which is attached hereto,
are herein incorporated by reference in their entirety and shall be deemed to
be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein, except that [(i)] if any term defined in such
document is otherwise defined herein, the definition set forth herein shall
control [and (ii) all references in such document to Depositary Shares,
Depositary Receipts, Underlying Preferred Shares and the Deposit Agreement
shall not be deemed to be part of this Agreement].(7)
------------
(7) Include only for issuances of Preferred Stock.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[XXXX XXXXXX XXXXXXXX INC.]
[XXXXXX XXXXXXX & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By XXXXXX XXXXXXX & CO.
INCORPORATED
By:
----------------------------------
Name:
Title:
Accepted:
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:
----------------------------------
Name:
Title:
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK AND DEPOSITARY SHARES)
June 2, 1997
From time to time, Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.
, a Delaware corporation (the "Company"), may enter into one or more
underwriting agreements that provide for the sale of designated securities to
the several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Offered Securities and the Underlying Preferred Shares and has
filed with, or transmitted for filing to, or shall promptly hereafter file
with or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Offered Securities and
the Underlying Preferred Shares pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"). The term Registration Statement
means the registration statement as amended to the date of this Agreement. The
term Basic Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
Prospectus Supplement. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities and the
Underlying Preferred Shares together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Basic Prospectus
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as of the date of the Underwriting
Agreement that:
(a) The Registration Statement has become effective;
no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder.
(c) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented,
if applicable, will comply, in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph (c) do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information concerning any Underwriter
furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein.
(d) 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 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 consolidated subsidiaries, taken as a whole.
(e) Each subsidiary of the Company 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 consolidated
subsidiaries, taken as a whole.
(f) The authorized capital stock of the Company, the
Offered Securities, any Underlying Preferred Shares, any Depositary
Shares and any Deposit Agreement conform as to legal matters to the
descriptions thereof contained in the Prospectus.
(g) The Preferred Shares or the Underlying Preferred
Shares, as the case may be, have been duly authorized and, when such
shares are issued and delivered as contemplated by the terms of this
Agreement, such shares will be validly issued, fully paid and non-
assessable, and the issuance of such shares is not subject to any
preemptive or similar rights.
(h) The deposit of the Underlying Preferred Shares
by the Company in accordance with any Deposit Agreement has been duly
authorized and, when the Depositary Shares are issued and delivered in
accordance with the terms of this Agreement, the Depositary Shares
will represent legal and valid interests in the Underlying Preferred
Shares.
(i) Assuming due authorization, execution and
delivery of any Deposit Agreement by the Depositary, each Depositary
Share, if any, will represent the interest described in the Prospectus
in a validly issued, outstanding, fully paid and non-assessable
Underlying Preferred Share; assuming due execution and delivery of the
Depositary Receipts, if any, by the Depositary pursuant to such
Deposit Agreement, the Depositary Receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit Agreement.
(j) This Agreement has been duly authorized,
executed and delivered by the Company.
(k) The Deposit Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company.
(l) The execution and delivery by the Company of,
and the performance by the Company of its obligations under, this
Agreement, the Certificate of Designation relating to the Preferred
Shares or the Underlying Preferred Shares, as the case may be (the
"Preferred Shares Certificate of Designation"), and the Deposit
Agreement, if any, will not contravene any provision of applicable law
or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any of its subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Preferred Shares Certificate of
Designation and the Deposit Agreement, if any, except such as may be
required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Offered Securities;
provided, however, that no representation is made as to whether the
purchase of the Preferred Stock or Depositary Shares constitutes a
"prohibited transaction" under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended.
(m) 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 effected subsequent to the date of
the Underwriting Agreement).
(n) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or
incorporated as required.
(o) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and 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 would not have a
material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(p) Xxxx Xxxxxx Xxxxxxxx Inc. is registered as a
broker-dealer and investment adviser with the Commission, is
registered with the Commodity Futures Trading Commission as a futures
commission merchant and is a member of the New York Stock Exchange,
Inc. and the National Association of Securities Dealers, Inc.
(q) Xxxxxx Xxxxxxx & Co. Incorporated is registered
as a broker-dealer and investment adviser with the Commission, is
registered with the Commodity Futures Trading Commission as a futures
commission merchant and is a member of the New York Stock Exchange,
Inc. and the National Association of Securities Dealers, Inc.
(r) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Firm Offered Securities
and any Additional Offered Securities shall be made to the Company in
immediately available funds at the time and place set forth in the Underwriting
Agreement.
Payment for any Firm Offered Securities and Additional Offered
Securities which are in the form of Depositary Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case
may be, for the respective accounts of the several Underwriters of Depositary
Receipts evidencing such Firm Offered Securities or Additional Offered
Securities, as the case may be, registered in such names and in such
denominations as the underwriters shall request in writing not later than two
full business days prior to the Closing Date or the Option Closing Date, as the
case may be, with any transfer taxes payable in connection with the transfer of
such Offered Securities to the Underwriters duly paid.
Certificates for any Firm Offered Securities and Additional
Offered Securities shall be in definitive forms and registered in such names
and in such denominations as the underwriters shall request in writing not
later than two full business days prior to the Closing Date or the Option
Closing Date, as the case may be. The certificates evidencing such Firm
Offered Securities and Additional Offered Securities shall be delivered to you
on the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of such Offered Securities to the
Underwriters duly paid, against payment of the purchase price therefor.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(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 effected subsequent to the execution and delivery
of the Underwriting Agreement), that, in the judgment of
the Manager, is material and adverse and that makes it, in
the judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Manager shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in
clause (i) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true
and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or
before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing
Date an opinion of Xxxxx & Wood LLP, counsel to the Company, or
of other counsel satisfactory to the Manager and who may be an
officer of the Company, dated the Closing Date, to the effect
that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under
the laws of the State of 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
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
consolidated subsidiaries, taken as a whole;
(ii) each of Xxxx Xxxxxx Xxxxxxxx, Xxxxxxxxx
Trust Company, Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxxx Xxxxxxx International Incorporated (the "Material
Subsidiaries") 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
consolidated subsidiaries, taken as a whole;
(iii) each of the Company and its Material
Subsidiaries has all necessary consents, authorizations,
approvals, orders, certificates and 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 would not have a material
adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(iv) the authorized capital stock of the
Company, the Offered Securities, any Underlying Preferred
Shares, any Depositary Shares and any Deposit Agreement
conform as to legal matters to the descriptions thereof
contained in the Prospectus;
(v) the Preferred Shares or the Underlying
Preferred Shares, as the case may be, have been duly
authorized and, when such shares are issued and delivered
as contemplated by the terms of this Agreement, such
shares will be validly issued, fully paid and non-
assessable, and the issuance of such shares is not subject
to any preemptive or similar rights;
(vi) the deposit of the Underlying Preferred
Shares by the Company in accordance with any Deposit
Agreement has been duly authorized and, when the
Depositary Shares are issued and delivered in accordance
with the terms of this Agreement, the Depositary Shares
will represent legal and valid interests in the Underlying
Preferred Shares;
(vii) assuming due authorization, execution and
delivery of any Deposit Agreement by the Depositary, each
Depositary Share, if any, will represent the interest
described in the Prospectus in a validly issued,
outstanding, fully paid and non-assessable Underlying
Preferred Share; assuming due execution and delivery of
the Depositary Receipts, if any, by the Depositary
pursuant to such Deposit Agreement, the Depositary
Receipts will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement;
(viii) this Agreement has been duly authorized,
executed and delivered by the Company;
(ix) the Deposit Agreement, if any, has been
duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company;
(x) the execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, the Preferred Shares Certificate of
Designation and the Deposit Agreement, if any, will not
contravene any provisions of applicable law or the
certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company
and its consolidated subsidiaries, taken as a whole, or,
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 of its
subsidiaries, and no consent, approval, authorization or
order of or qualification with any governmental body or
agency is required for the performance by the Company of
its obligations under this Agreement, the Preferred Shares
Certificate of Designation and the Deposit Agreement,
except such as may be required by the securities or blue
sky laws of the various states in connection with the
offer and sale of the Offered Securities; provided,
however, that such counsel need not express an opinion as
to whether the purchase of the Preferred Stock or
Depositary Shares constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended;
(xi) the statements (1) in the Basic Prospectus
under "Description of Capital Stock" and "Plan of
Distribution," (2) in the Prospectus Supplement under
"Description of Cumulative Preferred Stock," "Description
of Depositary Shares" and "Underwriters," (3) in the
Registration Statement under Item 15, (4) in "Item 3 -
Legal Proceedings" of the most recent annual reports on
Form 10-K incorporated by reference in the Prospectus and
(5) in "Item 1 - Legal Proceedings," of Part II of the
quarterly reports on Form 10-Q, if any, filed since such
annual reports and incorporated by reference in the
Prospectus, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(xii) after due inquiry, such counsel does not
know of any legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties
of the Company or any of its consolidated subsidiaries is
subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated by
reference as required; and
(xiii) such counsel (1) is of the opinion that
each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement
and the Prospectus (except as to financial statements and
schedules included therein, as to which such counsel need
not express any opinion) complied when so filed as to form
in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, (2) has no reason to believe that any part of
the Registration Statement (except as to financial
statements and schedules included therein, as to which
such counsel need not express any belief) on the date such
part became effective contained, and the Registration
Statement (except as to financial statements and schedules
included therein, as to which such counsel need not
express any belief) as of the date such opinion is
delivered contains any untrue statement of a material fact
or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus (except as to
financial statements and schedules included therein, as to
which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act
and the applicable rules and regulations of the Commission
thereunder and (4) has no reason to believe that the
Prospectus (except as to financial statements and
schedules included therein as to which such counsel need
not express any belief) as of the date such opinion is
delivered contains any untrue statement of a material fact
or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) The Manager shall have received on the Closing
Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date, covering the matters
referred to in subparagraphs (iv), (v), (vi), (vii), (viii),
(ix), clauses (1) and (2) of (xi) and clauses (2), (3) and (4)
of (xiii) of paragraph (c) above.
With respect to paragraph (xiii) above, if such opinion is
given by counsel who is also an officer of the Company such counsel may state
that his or her opinion and belief are based upon his or her participation, or
the participation of someone under his or her supervision, in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified. With respect to subparagraph (xiii) of
paragraph (c) above, Xxxxx Xxxx & Xxxxxxxx and, if Xxxxx & Wood LLP is giving
such opinion, Xxxxx & Xxxx LLP may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (other than
the documents incorporated by reference) and review and discussion of the
contents thereof (including documents incorporated by reference), but are
without independent check or verification except as specified.
(e) The Manager shall have received on the Closing
Date a letter, dated the Closing Date, in form and substance
satisfactory to the Manager, from the Company's 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 in or incorporated by
reference into the Prospectus.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish to the Manager, without charge, a
conformed copy of the Registration Statement (including
exhibits and all amendments thereto) and for delivery to each
other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period
mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto or to the Registration
Statement as the Manager may reasonably request.
(b) Before amending or supplementing the
Registration Statement or the Prospectus with respect to the
Offered Securities, to furnish to the Manager a copy of each
such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of
the public offering of the Offered Securities as in the opinion
of counsel for the Underwriters the Prospectus is required by
law to be delivered in connection with sales by an Underwriter
or 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 existing when the Prospectus is delivered to a
purchaser, not misleading, or if in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Manager will furnish to
the Company) to which Offered Securities may have been sold by
the Manager on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the
Prospectus, satisfactory in all respects to the Manager, so
that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or
supplemented, will comply with law and to cause such amendments
or supplements to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions as the Manager shall reasonably request and to
maintain such qualifications for as long as the Manager shall
reasonably request.
(e) To make generally available to the Company's
security holders and to the Manager as soon as practicable an
earning statement covering a twelve month period beginning on
the first day of the first full fiscal quarter after the date
of the Underwriting Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder. If
such fiscal quarter is the last fiscal quarter of the Company's
fiscal year, such earning statement shall be made available not
later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered
thereby.
(f) To use its best efforts to accomplish the
listing of the Offered Securities on the New York Stock
Exchange.
(g) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the
Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any preferred stock of the Company substantially
similar to the Offered Securities (other than the Offered
Securities), without the prior written consent of the Manager.
(h) Whether or not any sale of Offered Securities is
consummated, to pay all expenses incident to the performance of
its obligations under this Agreement, including: (i) the
preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Offered Securities,
(iii) the fees and disbursements of the Company's counsel and
accountants and of the Depositary and its counsel, (iv) the
qualification of the Offered Securities under securities or
blue sky laws in accordance with the provisions of Section
5(d), including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in
connection with the preparation of any blue sky or Legal
Investment Memoranda, (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of
the Registration Statement and all amendments thereto and of
the Prospectus and any amendments or supplements thereto, (vi)
the printing and delivery to the Underwriters of copies of any
blue sky or Legal Investment Memoranda, (vii) any fees charged
by rating agencies for the rating of the Offered Securities,
(viii) any expenses incurred by the Company in connection with
a "road show" presentation to potential investors, (ix) all
document production charges of counsel to the Underwriters (but
not including their fees for professional services in
connection with the preparation of this Agreement) and (x) any
filing fees in connection with any review of the offering of
the Offered Securities by the National Association of
Securities Dealers, Inc.
6. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
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
allegedly untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus 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 therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or allegedly untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information relating
to such Underwriter furnished to the Company by such Underwriter in writing
through the Manager expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus or any amendments or supplements
thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (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 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 the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. 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 fees and expenses of counsel as contemplated by the third sentence 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.
To the extent the indemnification provided for in the first or
second paragraph of this Section 6 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 Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters 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 benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company and of the
Underwriters shall be determined by reference to, among other things, whether
the untrue or allegedly untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 6, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or allegedly 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
Underwriters' obligations to contribute pursuant to this Section 6 are several
in proportion to their respective underwriting percentages (as defined in the
Agreement Among Underwriters) and not joint. The remedies provided for in this
Section 6 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.
7. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (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, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (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 judgment of the
Manager, 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 judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the Option
Closing Date, as the case may be, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of
the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Firm Offered
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate number of Firm Offered Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of
Offered Securities that any Underwriter has agreed to purchase pursuant to the
Underwriting Agreement be increased pursuant to this Section 8 by an amount
in excess of one-ninth of such number of Offered Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Offered Securities and the
aggregate number of Firm Offered Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Firm Offered Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
If, on the Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Additional Offered Securities and the aggregate number of
Additional Offered Securities with respect to which such default occurs is
more than one-tenth of the aggregate number of Additional Offered Securities
to be purchased on such date, the non-defaulting Underwriters shall have the
option to (i) terminate their obligation hereunder to purchase Additional
Offered Securities or (ii) purchase not less than the number of Additional
Offered Securities that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
the Offered Securities.
9. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
this Agreement will remain in full force and effect, regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 6, and no
other person will have any right or obligation hereunder.
11. Counterparts. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
