Exhibit (h)
DECS TRUST IX
3,304,348 DECS*
(Representing Beneficial Interests in a Contract Relating
to Shares of Common Stock, $0.01 par value, of XxXxxxxxx & Co Inc.)
Underwriting Agreement
New York, New York
February [ ], 2002
XXXXXXX XXXXX XXXXXX INC.
ABN AMRO ROTHSCHILD LLC
XXXXXXXXX & COMPANY, INC.
As Representatives of the several Underwriters,
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
DECS Trust IX, a statutory business trust organized under the State of
Delaware Business Trust Act, 12 Del.C. Section 3801 ET SEQ. (the "DELAWARE
ACT"), (such trust and the trustees thereof acting in their capacities as such
being referred to herein as the "TRUST"), proposes to issue and to sell to the
several underwriters named in Schedule I hereto (the "UNDERWRITERS"), for whom
you (the "REPRESENTATIVES") are acting as representatives, an aggregate of
3,304,348 DECS representing shares of beneficial interest in the Trust (the
"UNDERWRITTEN DECS"). In addition, the Underwriters will have an option to
purchase up to 495,652 DECS (the "OPTION DECS" and, together with the
Underwritten DECS, the "DECS") to cover over-allotments, if any. The Option DECS
and the Underwritten DECS, together with the [ ] DECS of the Trust subscribed
for by Xxxxxxx Xxxxx Xxxxxx Inc. ("XXXXXXX XXXXX XXXXXX") pursuant to the
Subscription Agreement, dated as of January 17, 2002, between Xxxxxxx Xxxxx
Xxxxxx and the Trust (the "SUBSCRIPTION DECS"), are referred to herein as the
"SECURITIES." The Securities are to be issued under an Amended and Restated
Declaration of Trust, dated as of January 22, 2002 (the "TRUST AGREEMENT"),
among the initial trustee and initial sponsor of the Trust, the trustees of the
Trust (the "TRUSTEES") and Xxxxxxx Xxxxx Xxxxxx, as sponsor.
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* Plus an option to purchase from the Trust up to 495,652 additional DECS
to cover over-allotments.
The Trust has entered into forward purchase contracts (the "CONTRACTS")
with each of the selling stockholders named in Schedule II hereto ("SELLING
STOCKHOLDERS"), pursuant to which Selling Stockholders have agreed to sell, and
the Trust has agreed to purchase, the number of shares (the "SHARES") of
XxXxxxxxx Common Stock, par value $0.01 per share (the "XXXXXXXXX COMMON
STOCK"), of XxXxxxxxx & Co Inc., a Delaware corporation (the "COMPANY"),
specified therein on [ ], 2005 (the "EXCHANGE DATE") (subject to the Selling
Stockholders' right to extend and accelerate the Exchange Date and to deliver
cash with a value equivalent thereto, or other property, as provided in the
Contracts). The Selling Stockholders' obligations under the Contracts will be
secured by a pledge of collateral under collateral agreements (the "COLLATERAL
AGREEMENTS"), each among a Selling Stockholder, the Trust and The Bank of New
York ("BONY"), as collateral agent (in such capacity, the "COLLATERAL AGENT").
In connection with the foregoing, the Company has filed with the
Commission a registration statement, including a basic prospectus, with respect
to 3,304,348 Shares in respect of the Underwritten DECS, plus an additional
495,652 Shares in respect of the Option DECS, for delivery by Selling
Stockholders pursuant to the Securities, which registration statement is
referred to in Section 2(a) of this Agreement.
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used herein are defined in Section 23 hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Trust meets the requirements for use of Form N-2 under
the Act and has prepared and filed with the Commission (a) a notification on
Form N-8A (the "NOTIFICATION") of registration of the Trust as an investment
company under the Investment Company Act and (b) a registration statement on
Form N-2 (file numbers 333-76476 and 811-10623), including a related preliminary
prospectus, for the registration of the offering and sale of the DECS under the
Act. The Trust may have filed one or more amendments thereto, including the
related preliminary prospectus, each of which has previously been furnished to
you. The Trust will next file with the Commission one of the following: either
(1) prior to the Trust Effective Date of such registration statement, a further
amendment to such registration statement (including the form of final
prospectus); or (2) after the Trust Effective Date of such registration
statement, a final prospectus in accordance with Rules 430A and 497(h). In the
case of clause (2), the Trust has included in such registration statement, as
amended at the Trust Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included in such
registration statement and the Trust Prospectus. As filed, such amendment and
form of final prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except to
the extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only
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such specific additional information and other changes (beyond that contained in
the latest Preliminary Trust Prospectus) as the Trust has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Trust Effective Date, the Trust Registration
Statement and the Notification did or will, and when the Trust Prospectus is
first filed (if required) in accordance with Rule 497(h) and on the Closing Date
(as defined herein) and on any date on which Option DECS are purchased, if such
date is not the Closing Date (a "SETTLEMENT DATE"), the Trust Prospectus (and
any supplements thereto) will comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Investment Company
Act, and the respective rules thereunder; on the Trust Effective Date and at the
Execution Time, the Trust Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; and, on the Trust Effective Date, the Trust Prospectus, if not filed
pursuant to Rule 497(h), did not or will not, and on the date of any filing
pursuant to Rule 497(h) and on the Closing Date and any Settlement Date, the
Trust Prospectus (together with any supplement thereto) will 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.
(c) No stop order suspending the effectiveness of the Trust
Registration Statement is in effect, no order preventing or suspending the use
of any Preliminary Trust Prospectus has been issued by the Commission, no notice
or order under Section 8(e) of the Investment Company Act has been issued, and
no proceedings for any such purpose are pending before or threatened by the
Commission.
(d) The Trust has been duly created, is validly existing as a
business trust under the Delaware Act, has the power and authority to own or
lease, as the case may be, and to operate its properties and conduct its
business as described in the Trust Prospectus and to enter into and perform its
obligations under this Agreement, the Trust Agreement and each of the
Fundamental Agreements (as defined below) and is duly qualified to do business
and is in good standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification
other than where the failure to be so qualified would not have a material
adverse effect on the Trust or its assets. The Trust has no subsidiaries.
(e) The Trust is registered with the Commission as a
non-diversified, closed-end management investment company under the Investment
Company Act and no order of suspension or revocation of such registration has
been issued or proceedings therefor initiated or, to the knowledge of the Trust,
threatened by the Commission. No person is serving or acting as an officer or
trustee of the Trust except in accordance with the provisions of the Investment
Company Act.
(f) This Agreement has been duly authorized, executed and
delivered by the Trust.
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(g) Each of the Contracts, the Collateral Agreements, the
Administration Agreement between BoNY and the Trust (the "ADMINISTRATION
AGREEMENT"), the Custodian Agreement between BoNY and the Trust (the "CUSTODIAN
AGREEMENT"), the Paying Agent Agreement between BoNY and the Trust (the "PAYING
AGENT AGREEMENT") and the Fund Indemnity Agreement between Xxxxxxx Xxxxx Xxxxxx
and the Trust (the "FUND INDEMNITY AGREEMENT"), (the Contracts, the Collateral
Agreements, the Administration Agreement, the Custodian Agreement, the Paying
Agent Agreement, and the Fund Indemnity Agreement are referred to herein,
collectively, as the "FUNDAMENTAL AGREEMENTS") has been duly authorized,
executed and delivered by the Trust and, assuming due authorization, execution
and delivery by the other parties thereto, is a valid and binding agreement of
the Trust, enforceable against the Trust in accordance with its terms except as
such enforceability may be limited by applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and by general equitable
principles.
(h) The execution and delivery by the Trust of, and the
performance by the Trust of its obligations under, this Agreement and each
Fundamental Agreement (including the issue and sale by the Trust of the DECS as
contemplated by this Agreement) do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach or violation of, or default under, or give the holder of any indebtedness
of the Trust the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Trust
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Trust is a
party or by which it may be bound, or to which any of the property or assets of
the Trust is subject, nor will such action result in any violation of the
provisions of the Trust Agreement or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Trust or any of its assets or properties; and no consent, approval,
authorization, order of, or qualification or filing with, any governmental body
or agency, self-regulatory organization or court or other tribunal, whether
foreign or domestic, is required for the execution and delivery by the Trust of
this Agreement or the Fundamental Agreements or the performance by the Trust of
its obligations hereunder and thereunder, except for the filing of a Certificate
of Trust and the filing of a Restated Certificate of Trust with the office of
the Secretary of State of the State of Delaware (which filings have been duly
made) and such as have been obtained and as may be required by the securities or
Blue Sky laws of the various states and foreign jurisdictions in connection with
the offer and sale of the DECS by the Underwriters.
(i) The DECS, the Trust Agreement and the Fundamental
Agreements conform in all material respects to the descriptions thereof
contained in the Trust Prospectus.
(j) The Trust Agreement and the Fundamental Agreements comply
with all applicable provisions of the Act, the Exchange Act and the Investment
Company Act, and all approvals of such documents required under the Investment
Company Act by the holders of the Securities and the Trustees have been obtained
and are in full force and effect.
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(k) On the Closing Date, the Fundamental Agreements will be in
full force and effect and the Trust will not be in default thereunder and, to
the knowledge of the Trust, no event will have occurred which with the passage
of time or the giving of notice or both would constitute a default thereunder.
The Trust is not currently in breach of, or in default under, the Trust
Agreement or any other written agreement or instrument to which it or its
property is bound or affected.
(l) All of the outstanding Securities have been duly
authorized and are validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, and the form of certificate
used to evidence the Securities is in due and proper form and complies with all
provisions of applicable law.
(m) The DECS have been duly authorized by the Trust for
issuance to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Trust in accordance with the terms of this Agreement and the
Trust Agreement against payment of the purchase price therefor as provided
herein, will be validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust, and the issuance of such DECS
will not be subject to any preemptive or similar rights. No person has rights to
the registration of any securities because of the filing of the Trust
Registration Statement, and no holder of the Securities will be subject to
personal liability by reason of being such a holder.
(n) The DECS have been approved for listing on the New York
Stock Exchange (the "NYSE"), subject to official notice of issuance. The Trust's
Registration Statement on Form 8-A under the Exchange Act is effective.
(o) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, of the Trust, or in the investment objectives,
investment policies, liabilities, business, prospects or operations of the Trust
from that set forth in the Trust Prospectus (exclusive of any supplements
thereto subsequent to the date of this Agreement) and there have been no
transactions entered into by the Trust which are material to the Trust other
than those in the ordinary course of its business or as described in the Trust
Prospectus (exclusive of any supplements thereto subsequent to the date of this
Agreement).
(p) There are no legal or governmental proceedings pending or,
to the knowledge of the Trust, threatened against or affecting the Trust that
are required to be described in the Trust Registration Statement or the Trust
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Trust Registration
Statement or the Trust Prospectus or to be filed as exhibits to the Trust
Registration Statement that are not described or filed as required.
(q) The Trust has all necessary consents, authorizations,
approvals, orders (including exemptive orders), certificates and permits of and
from, and has made all declarations and filings with, all governmental
authorities, self-regulatory organizations and courts and other tribunals,
whether foreign or domestic, to own and use its assets and to conduct its
business in the manner described in the Trust Prospectus, except to the extent
that the failure to obtain or file
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the foregoing would not have a material adverse effect on the Trust and 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 DECS.
(r) There are no material restrictions, limitations or
regulations with respect to the ability of the Trust to invest its assets as
described in the Trust Prospectus, other than as described therein.
(s) The Trust has good title to all properties owned by it, in
each case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Trust Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Trust.
(t) There are no legal or governmental proceedings pending to
which the Trust is a party or of which any property of the Trust is the subject
which, if determined adversely to the Trust, would individually or in the
aggregate have a material adverse effect on the current or future financial
position or results of operations of the Trust; and, to the best of the Trust's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(u) The statement of assets, liabilities and capital included
in the Trust Registration Statement and the Trust Prospectus, together with the
notes thereto, present fairly the financial position of the Trust at the date
indicated, and such financial statement has been prepared in conformity with
generally accepted accounting principles in the United States of America.
(v) The accountants who certified the financial statements and
supporting schedules included in the Trust Registration Statement are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(w) The Trust has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the DECS or the Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 2.
(a) The Company meets the requirements for use of Form S-3
under the Act. The Company Registration Statement and any Rule 462(b) Company
Registration Statement has become effective under the Act. At the respective
times the Company Registration Statement, any Rule 462(b) Company Registration
Statement and any post-effective amendments thereto become effective (the
"COMPANY EFFECTIVE DATE") and on each Settlement Date, (A) the Company
Registration Statement and any amendments and supplements thereto, comply and
will comply in all material respects with the requirements of the Act, (B)
neither the Company
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Registration Statement nor any amendment or supplement thereto includes or will
include an untrue statement of a material fact or omits or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) neither the Company Prospectus nor any
amendment or supplement thereto includes or will include an untrue statement of
a material fact or omits or will 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; PROVIDED, HOWEVER, that this
representation and warranty does not apply to statements or omissions made in
reliance upon and in conformity with information furnished to the Company in
writing (i) by any Underwriter through the Representatives expressly for use in
the Company Registration Statement or the Company Prospectus, (ii) by or on
behalf of the Selling Stockholders expressly for use in the Company Registration
Statement or the Company Prospectus or (iii) by or on behalf of the Trust
expressly for use in the Company Registration Statement or the Company
Prospectus. The Company makes no representations or warranties as to the Trust
Registration Statement or the Trust Prospectus.
(b) The documents incorporated or deemed to be incorporated by
reference in the Company Prospectus pursuant to Item 12 of Form S-3 under the
Act, at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the Exchange
Act and, when read together and with the other information in the Company
Prospectus, at the time the Company Registration Statement became effective and
at all times subsequent thereto up to the Closing Date and any Settlement Date,
did not and will not include an 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.
(c) (i) The accountants, Xxxxxx Xxxxxxxx LLP, that have
certified the financial statements and supporting schedules incorporated by
reference in the Company Prospectus and the Company Registration Statement are
independent public accountants with respect to the Company, as required by the
Act and the Exchange Act.
(ii) The accountants, PriceWaterhouseCoopers LLP, that
have certified certain financial statements of XXXX XXXX XxXXXXX Financial
Services, Inc. and delivered their report with respect to the audited financial
statements incorporated by reference in the Company Prospectus and the Company
Registration Statement, are independent public accountants with respect to XXXX
XXXX XxXXXXX Financial Services, Inc. within the meaning of the Act and the
applicable published rules and regulations thereunder.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The consolidated historical financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Company Registration Statement and the Company Prospectus present fairly the
consolidated financial position of the Company and its subsidiaries as of the
dates indicated and the consolidated results of operations and changes in
financial position of the Company and its subsidiaries for the periods
specified. Such financial
7
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved. The
financial statement schedules, if any, included in the Company Registration
Statement present fairly the information required to be stated therein. The
selected financial data included in the Company Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with that
of the audited consolidated financial statements included or incorporated by
reference in the Company Registration Statement.
(f) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with power
and authority (corporate and other) under such laws to own, lease and operate
its properties and conduct its business as described in the Company Prospectus;
and the Company is duly qualified to transact business as a foreign corporation
and is in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure to be
so qualified in a foreign jurisdiction would not have a material adverse effect
on the business, prospects, condition (financial or other), properties, earnings
or results of operations of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business (a
"MATERIAL ADVERSE EFFECT") or will not have a Material Adverse Effect on the
validity of this Agreement.
(g) The subsidiaries of the Company set forth on Schedule III
are all of its subsidiaries (the "SUBSIDIARIES"). Each of the Subsidiaries has
been duly organized and is validly existing as a limited liability company or a
corporation, as the case may be, in good standing under the laws of the
jurisdiction in which it is organized or incorporated, as the case may be, with
the power and authority to own, lease and operate its properties and conduct its
business as described in the Company Prospectus, and is duly qualified and is in
good standing and authorized to do business in each foreign jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification, except to the extent that a failure to be so
qualified in a foreign jurisdiction would not have a Material Adverse Effect.
All of the outstanding shares of capital stock or membership interests, as the
case may be, of each of the Company's Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable, and are owned by the
Company, directly or indirectly through one or more Subsidiaries, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of any
nature (each, a "LIEN").
(h) At September 30, 2001, the capitalization of the Company
was as set forth in the Company Prospectus under the heading "Capitalization";
the Shares conform in all material respects to the description thereof
incorporated by reference in the Company Registration Statement and the Company
Prospectus and such description conforms in all material respects to the rights
set forth in the instruments defining the same.
(i) All the outstanding shares of capital stock of the
Company, including the Shares, have been duly authorized and validly issued and
are fully paid and non-assessable, and none of the outstanding shares of capital
stock of the Company, including the Shares, was issued in violation of the
preemptive rights of any stockholder of the Company.
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(j) Since the respective dates as of which information is
given in the Company Prospectus and the Company Registration Statement, other
than as set forth in or contemplated by the Company Prospectus and the Company
Registration Statement (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change or any development which has resulted or could
reasonably be expected to result in a Material Adverse Effect and (ii) there has
not been any development which has resulted or could reasonably be expected to
result in a Material Adverse Effect in the capital stock or in the long-term
debt of the Company or any of its Subsidiaries.
(k) Neither the Company nor any of its Subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or any provisions of the Foreign Corrupt Practices Act or the rules
and regulations promulgated thereunder, except for such violations which, singly
or in the aggregate, would not have a Material Adverse Effect.
(l) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(m) Each of the Company and its Subsidiaries (i) has such
concessions, permits, licenses, consents, exemptions, franchises,
authorizations, orders, registrations, qualifications and other approvals (each,
an "AUTHORIZATION") of, and has made all filings with and notices to, all
federal, state and foreign governments, governmental or regulatory authorities
and self-regulatory organizations and all courts and other tribunals, including,
without limitation, under any applicable Environmental Laws and (ii) is a member
in good standing of each federal, state or foreign exchange, board of trade,
clearing house or association and self-regulatory or similar organization, in
each case, as are necessary to own, lease, license and operate its respective
properties, to conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly or in the
aggregate, have a Material Adverse Effect. Each such Authorization is valid and
in full force and effect and each of the Company and its Subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such Authorization; except where such revocation, suspension, termination
or impairment would not, singly or in the aggregate, have a Material Adverse
Effect.
(n) The statements in the Company Prospectus under the
captions "Risk Factors -- Failure to comply with net capital and net liquid
asset requirements may result in the
9
revocation of our registration with the SEC or our expulsion from the NYSE
and/or the AMEX," "Business--Operations--NYSE Rules Governing Our Specialist
Activities," "Business--Regulatory Matters" and "Plan of Distribution" (other
than statements in the "Plan of Distribution" furnished to the Company by the
Representatives, as to which no opinion is rendered) in the Company Prospectus
and the Company Registration Statement and "Business--Operations--NYSE Rules
Governing Our Specialist Activities" and "Business--Regulatory Matters" in the
Company's annual report on Form 10-K, as supplemented and amended by the
Company's Form 10-K/As, for the year ended December 31, 2000 (the "2000 FORM
10-K"), and in the Company Registration Statement, insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred to
therein, fairly present in all material respects such legal matters, documents
and proceedings
(o) Except as disclosed in the Company Prospectus, there are
no contracts, agreements or understandings between the Company and any person
granting such person the right, which right has not been waived, to require the
Company to include any securities owned by such person that are not already
subject to an effective Registration Statement with the Shares registered
pursuant to the Company Registration Statement.
(p) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company or any of its
respective representatives (other than each of the Underwriters, as to whom the
Company makes no representation) in connection with the offer and sale of the
Shares or the DECS contemplated hereby, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
(q) Each certificate signed by any officer of the Company or
any of its Subsidiaries and delivered to the Representatives or counsel for the
Representatives shall be deemed to be a representation and warranty by the
Company to the Representatives as to the matters covered thereby.
(r) Each of the Company and its Subsidiaries and ERISA
Affiliates (as defined below) has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of ERISA and Section 412 of the
Internal Revenue Code of 1986, as amended (the "CODE") and the regulations and
published interpretations thereunder with respect to each "plan" (as defined in
Section 3(3) of ERISA) for which the Company or any of its Subsidiaries or ERISA
Affiliates have or may have any liability (contingent or otherwise) and each
such plan is in compliance in all material respects with the applicable
provisions of ERISA and such regulations and published interpretations
thereunder. Neither the Company nor any of its Subsidiaries or ERISA Affiliates
has incurred any [material] unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary course) or
to any such plan under Title IV of ERISA. Neither the Company nor any of its
Subsidiaries has engaged in any non-exempt "prohibited transactions" under ERISA
or the Code. The term "ERISA AFFILIATE" means each trade or business (whether or
not incorporated) that would be treated as a single employer with
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the Company under Title IV of ERISA or Section 412 of the Code. [NOTE: FULBRIGHT
TO DISCLOSE NATURE OF ISSUE RE: UNPAID LIABILITIES FOR RPM]
(s) The statistical and market-related data included in the
Company Prospectus and the Company Registration Statement are based on or
derived from sources that the Company believes to be reliable and accurate.
(t) The Company and each of its Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(u) The Company and its Subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents, patent applications,
trade and service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and other
intellectual property (collectively, the "INTELLECTUAL PROPERTY") necessary for
the conduct of the Company's business as now conducted or as proposed in the
Company Prospectus to be conducted, except to the extent a failure to so own,
possess, license or have rights to use Intellectual Property could not
reasonably be expected to have a Material Adverse Effect.
(v) Each of XxXxxxxxx & Co. LLC ("LABCO."), and XxXxxxxxx
Financial Services, Inc. ("LFS") is registered as a broker-dealer with the
Commission under the Exchange Act, is a member organization in good standing
with the NYSE and/or the American Stock Exchange (the "AMEX"), as the case may
be, and is registered with the securities authority of each state in which it is
required to be registered.
(w) Each of LaBCo. and LFS is a broker-dealer subject to
the provisions of Regulation T (12 C.F.R. Section 220) of the Board of
Governors of the Federal Reserve System. Each of LaBCo. and LFS maintains
procedures and internal controls designed to ensure that it does not extend
or maintain credit to or for its customers other than in accordance with the
provisions of Regulation T, and management officials of the Company or its
Subsidiaries regularly supervise the activities of LaBCo. and LFS and the
activities of their respective employees to ensure that none of LaBCo. and
LFS will extend or maintain credit to or for its customers other than in
accordance with the provisions of said Regulation T.
(x) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; all [material] policies of insurance and fidelity or surety bonds
insuring the Company or any of its Subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and effect; the
Company and its Subsidiaries are in compliance with the terms of such policies
and instruments
11
in all material respects; and there are no claims by the Company or any of its
Subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause;
neither the Company nor any of its Subsidiaries has been refused any insurance
coverage sought or applied for; and neither the Company nor any of its
Subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Company Prospectus.
(y) There are no legal or governmental proceedings pending or,
to its knowledge, threatened to which the Company or any of its Subsidiaries is
or could be a party or to which any of their respective properties is or could
be subject, which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect or which would be required to be
described in a prospectus pursuant to the Act which is not described in the
Company Registration Statement, the Company Prospectus, the 2000 Form 10-K or
any Form 10-Q of the Company filed during 2001, other than those disclosed
therein or in any amendments thereto, and there are no franchises, contracts or
other documents of a character which would be required to be described or
referred to in the Company Registration Statement or the Company Prospectus or
to be filed as exhibits to the Company Registration Statement that are not
described, referred to or filed as required.
3. REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDERS. Each Selling
Stockholder represents and warrants to, and agrees with, each Underwriter, the
Company and the Trust that:
(a) Such Selling Stockholder has full legal right, capacity,
power and authority to enter into and perform his obligations under
this Agreement, the Contract and Collateral Agreement to which he is a
party and the agreement between the Selling Stockholders and Xxxxxxx
Xxxxx Xxxxxx relating to expenses of the Trust (the "REIMBURSEMENT
AGREEMENT").
(b) This Agreement has been duly executed and delivered by
such Selling Stockholder. The Contract, the Collateral Agreement, and
the Reimbursement Agreement to which he is a party and the
Reimbursement Agreement have been duly executed and delivered by such
Selling Stockholder and, assuming due authorization, execution and
delivery by the other parties thereto, are valid and binding agreements
of such Selling Stockholder, enforceable against him in accordance with
their terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and by general equitable principles.
(c) The execution and delivery by such Selling Stockholder of
this Agreement, and of the Contract, Collateral Agreement and
Reimbursement Agreement to which he is a party and the performance by
such Selling Stockholder of his obligations hereunder and thereunder
(including, without limitation, (i) the pledge by such Selling
Stockholder to the Trust of a security interest in such Selling
Stockholder's Shares pursuant to his
12
Collateral Agreement, (ii) following an Acceleration Event (as defined
in the Contracts), any action by the Collateral Agent to foreclose on
such Selling Stockholder's Shares and deliver such Shares to the Trust,
and any action by the Trust to distribute such Shares to the holders of
the DECS pursuant to the terms of the Trust Agreement and such Selling
Stockholder's Collateral Agreement, and (iii) if the Selling
Stockholders do not elect the Cash Delivery Option or elect the Cash
Delivery Option but fail thereafter to deliver cash as required by the
Contracts, any action by the Collateral Agent to deliver such Selling
Stockholder's Shares to the Trust or by the Trust to distribute such
Shares to the holders of the DECS pursuant to the terms of the Trust
Agreement and such Selling Stockholder's Collateral Agreement) do not
and will not, whether with or without the giving of notice or passage
of time or both, conflict with, result in a breach or violation of, or
default under, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note or other agreement or instrument to which
such Selling Stockholder is a party or by which he may be bound or any
law, order, rule or regulation applicable to such Selling Stockholder
of any court, federal or state regulatory body, administrative agency
or other governmental body having jurisdiction over such Selling
Stockholder or his properties, except where such conflict, breach,
violation or default would not have a material adverse effect on such
Selling Stockholder. Upon the occurrence of any of the events listed in
clauses (ii) and (iii) in the preceding sentence, the Shares referred
to in such clauses will be free and clear of any restriction imposed on
the Shares. Amounts received by such Selling Stockholder under the
Contract to which it is a party at the Closing Date and, if any Option
DECS are purchased, at the time of delivery thereof pursuant to Section
4(b), will not be used by such Selling Stockholder for the purpose,
whether immediate, incidental or ultimate, of buying or carrying a
margin stock, as such terms are defined in Regulation U promulgated by
the Board of Governors of the Federal Reserve System.
(d) Such Selling Stockholder is now and on the Exchange Date
will be the beneficial owner of the Shares to be sold under the
Contract to which it is a party free and clear of all liens,
encumbrances, equities and claims, except for those created pursuant to
the Collateral Agreement to which he is a party, and, assuming that the
Trust acquires its interest in such Shares in exchange for the Firm
Purchase Price and the Additional Purchase Price (as defined in such
Selling Stockholder's Collateral Agreement) in accordance with the
terms of the Contract to which he is a party without notice of any
adverse claim (within the meaning of Section 8-105 of the New York
Uniform Commercial Code ("UCC")), on the Exchange Date the Trust will
have acquired either such Selling Stockholder's Shares free of any
adverse claim (within the meaning of Section 8-102(a)(1) of the UCC) or
a security entitlement (within the meaning of Section 8-102(a)(17) of
the UCC) to such Shares, in accordance with the terms of the Contract
to which such Selling Stockholder is a party. Such Selling Stockholder
has the full right, power and authority, and all authorization and
approvals required by law, to pledge and assign the Shares to be
pledged and assigned by such Selling Stockholder pursuant to the
Collateral Agreement to which he is a party. The sale, transfer and
delivery of any Shares to be delivered by such Selling Stockholder
pursuant to the Contract to which he is a party is not, and at the time
of delivery of such Shares will not
13
be, subject to any right of first refusal or similar rights of any
person pursuant to any contract to which such Selling Stockholder is a
party, or by which he is bound.
(e) At the respective times the Company Registration
Statement, any Rule 462(b) Company Registration Statement become
effective, at the Closing Date (and, if any Option DECS are purchased
on a date other than the Closing Date, at Settlement Date, (A) neither
the Company Registration Statement nor any amendment or supplement
thereto includes or will include an untrue statement of a material fact
or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(B) neither the Company Prospectus nor any amendment or supplement
thereto includes or will include an untrue statement of a material fact
or omits or will 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; PROVIDED, HOWEVER, that the
representations and warranties contained in this paragraph (e) apply
only to statements or omissions relating to such Selling Stockholder
furnished to the Company in writing by or on behalf of such Selling
Stockholder expressly for use in the Company Registration Statement or
Company Prospectus.
(f) Such Selling Stockholder hereby repeats and confirms as if
set forth in full herein each of the representations, warranties,
guarantees and agreements made by him in the Contract and the
Collateral Agreement to which he is a party and agrees that the
representations, warranties, guarantees and agreements therein and
herein are made for the benefit of, and may be relied upon by, (i) the
Underwriters, and Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, counsel to the
Underwriters and (ii) the Company and Fulbright & Xxxxxxxx L.L.P.,
counsel to the Company.
(g) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is intended to or which has
constituted or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Shares or the DECS.
(h) No consent, approval, license, authorization, order or
validation of, and no filing, recording, or registration with, any
court or governmental authority, agency or body is required for the
compliance by such Selling Stockholder with all of the provisions of
this Agreement, the Contract and the Collateral Agreement to which he
is a party and the Reimbursement Agreement, except such as have been
obtained under the Act and such as may be required under the blue sky
laws in connection with the purchase and distribution of the DECS by
the Underwriters and the distribution of such Selling Stockholder's
Shares pursuant to the terms of the DECS in the manner contemplated
herein and in the Trust Prospectus and the Company Prospectus.
Any certificate signed by such Selling Stockholder and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the DECS shall be deemed a
14
representation and warranty by such Selling Stockholder as to matters covered
thereby, to each Underwriter.
4. PURCHASE AND SALE. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at a purchase price of $[ ] per DECS,
the amount of the Underwritten DECS set forth opposite such Underwriter's name
in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Trust hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
495,652 Option DECS at the same purchase price per DECS as the Underwriters
shall pay for the Underwritten DECS. The option may be exercised only to cover
over-allotments in the sale of the Underwritten DECS by the Underwriters. The
option may be exercised in whole or in part at any time (but not more than once)
on or before the 30th day after the date of the Trust Prospectus upon written or
facsimile notice by the Representatives to the Trust setting forth the number of
Option DECS as to which the several Underwriters are exercising the option and
the Settlement Date. Delivery of certificates for the Option DECS by the Trust,
and payment therefor to the Trust, shall be made as provided in Section 5
hereof. The number of shares of the Option DECS to be purchased by each
Underwriter shall be the same percentage of the total number of Option DECS to
be purchased by the several Underwriters as such Underwriter is purchasing of
the Underwritten DECS, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional DECS.
(c) As compensation to the Underwriters for their commitment
hereunder, and in view of the fact that the proceeds of the sale of the DECS
will be used by the Trust as specified in the Contracts, the Selling
Stockholders agree to pay to Xxxxxxx Xxxxx Xxxxxx, at the time of each delivery
of DECS pursuant to Section 5, an amount equal to $[ ] per DECS being delivered
at such time, plus $[ ] per DECS for each Subscription DECS owned by Xxxxxxx
Xxxxx Xxxxxx after giving effect to the subdivision of the Subscription DECS
provided for in the Subscription Agreement.
5. DELIVERY AND PAYMENT. Delivery of and payment for the Underwritten
DECS and the Option DECS (if the option provided for in Section 4(b) hereof
shall have been exercised on or before the first Business Day prior to the
Closing Date) shall be made at 10:00 A.M., New York City time, on February [ ],
2002 or at such time on such later date not later than five Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement among the Representatives, the Trust and Selling
Stockholders or as provided in Section 13 hereof (such date and time of delivery
and payment for the DECS herein called the "CLOSING DATE"). Delivery of the DECS
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Trust
by wire transfer payable in immediately available same-day funds to an account
specified by the Trust in writing at least two Business Days in advance of the
Closing Date. Delivery of the
15
DECS shall be made through the facilities of the Depository Trust Company unless
the Representatives shall otherwise instruct.
The Trust agrees to have the DECS available for inspection and checking
by the Representatives in New York, New York, not later than 1:00 P.M. on the
Business Day prior to the Closing Date.
If the option provided for in Section 4(b) hereof is exercised after
the first Business Day prior to the Closing Date, the Trust will deliver the
Option DECS (at the expense of the Trust) to the Representatives on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the Trust
by wire transfer payable in immediately available same-day funds to an account
specified by the Trust in writing at least two Business Days in advance of such
Settlement Date. If settlement for the Option DECS occurs after the Closing
Date, the Trust, the Company and Selling Stockholders will deliver to the
Representatives on the Settlement Date for the Option DECS, and the obligation
of the Underwriters to purchase the Option DECS shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 10 hereof.
6. OFFERING BY THE UNDERWRITERS. It is understood that the several
Underwriters propose to offer the DECS for sale to the public as set forth in
the Trust Prospectus.
7. AGREEMENTS OF THE TRUST. The Trust agrees with the several
Underwriters that:
(a) The Trust will use its best efforts to cause the Trust
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the DECS, the Trust will not file any amendment of the
Trust Registration Statement or supplement to the Trust Prospectus or
any Rule 462(b) Trust Registration Statement unless the Trust has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you object. Subject
to the foregoing sentence, if the Trust Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Trust Prospectus is otherwise required under Rule 424(b), the Trust
will cause the Trust Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Trust will promptly advise the Representatives (1) when the
Trust Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the Trust Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Trust
Registration Statement shall have been filed with the Commission, (3)
when, prior to termination of the offering of the DECS, any amendment
to the Trust Registration Statement or any Rule 462(b) Trust
Registration Statement, shall have been filed or
16
become effective, (4) of any request by the Commission or its staff for
any amendment of the Trust Registration Statement, or any Rule 462(b)
Trust Registration Statement, or for any supplement to the Trust
Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Trust Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Trust of any
notification with respect to the suspension of the qualification of the
DECS for sale in any jurisdiction or the institution or threatening of
any proceeding for such purpose. The Trust will use its best efforts to
prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the DECS is
required to be delivered under the Act, any event occurs as a result of
which the Trust Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Trust Registration Statement or supplement
the Trust Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Trust promptly will (1) notify the
Representatives of any such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 7, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemental
Trust Prospectus to you in such quantities as you may reasonably
request.
(c) The Trust will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the Trust
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Trust Registration Statement (without
exhibits thereto). The Trust will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the Trust
Registration Statement (including exhibits thereto). The Trust will
furnish to the Underwriters not later than (i) 12:00 P.M., New York
City time, on the Business Day immediately following the date of
determination of the public offering price of the DECS, if such
determination occurred at or prior to 12:00 noon, New York City time,
on such date or (ii) 9:00 A.M., New York City time, on the second
Business Day immediately following the date on which the public
offering price was determined, if such determination occurred after
12:00 noon, New York City time, on such date, as many copies of each
Preliminary Trust Prospectus, the Trust Prospectus and any supplement
thereto as the Representatives may reasonably request; further, so long
as delivery of a prospectus by an Underwriter or any dealer may be
required by the Act, as many copies of each Preliminary Trust
Prospectus and the Trust Prospectus and any supplement thereto as the
Representatives may reasonably request.
(d) The Trust will arrange, if necessary, for the
qualification of the DECS and the Shares for sale under the laws of
such jurisdictions as the Representatives may designate, will maintain
such qualifications in effect so long as required for the distribution
of the
17
DECS and will pay any fee of the National Association of Securities
Dealers, Inc. (the "NASD"), in connection with its review, if any, of
the Trust Registration Statement and the offering of the DECS.
8. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the Company
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Subject to Section 8(c), if
filing of the Company Prospectus is required under Rule 424(b), the
Company will cause the Company Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed.
The Company will promptly advise the Representatives when the Company
Registration Statement, if not effective at the Execution Time, shall
have become effective. The Company has furnished or will furnish to the
Underwriters as many copies of any preliminary prospectus and the
Company Prospectus as the Representatives reasonably request.
(b) During the period when the Company Prospectus is required
by the Act to be delivered in connection with sales of the DECS, the
Company will, subject to Section 8(c), file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14
of the Exchange Act subsequent to the time the Company Registration
Statement becomes effective.
(c) During the period when the Company Prospectus is required
by the Act to be delivered in connection with sales of the DECS, the
Company will inform the Representatives of its intention to file any
amendment to the Company Registration Statement, any supplement to the
Company Prospectus or any document that would as a result thereof be
incorporated by reference in the Company Prospectus; will furnish the
Representatives with copies of any such amendment, supplement or other
document a reasonable time in advance of filing; and will not file any
such amendment, supplement or other document in a form to which the
Representatives shall reasonably object.
(d) During the period when the Company Prospectus is required
by the Act to be delivered in connection with sales of the DECS, the
Company will notify the Representatives immediately, and confirm the
notice in writing (with respect to clause (i), upon request), (i) of
the effectiveness of any amendment to the Company Registration
Statement, (ii) of the receipt of any comments from the Commission with
respect to the Company Registration Statement or the Company
Prospectus, (iii) of any request by the Commission to amend the Company
Registration Statement or any supplement to the Company Prospectus or
for additional information relating thereto and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Company Registration Statement, of the suspension of the qualification
of the Shares for offering or sale in any jurisdiction, or of the
institution or to the Company's knowledge, the threatening of any
proceedings for any of such purposes. The Company will use every
18
reasonable effort to prevent the issuance of any such stop order or of
any order preventing or suspending such use and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company has furnished or will furnish to the
Representatives one copy of the originally executed Company
Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and a copy of all originally
executed consents and certificates of experts, and has furnished or
will furnish to each of the Representatives as many conformed copies of
the Company Registration Statement as originally filed and of each
amendment thereto (including documents incorporated or deemed to be
incorporated by reference into the Company Prospectus but without
exhibits) as the Representatives may reasonably request.
(f) The Company will use its reasonable best efforts, in
cooperation with the Trust and the Underwriters, to qualify the Shares
for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Representatives may designate and
to maintain such qualifications in effect for a period of not less than
one year from the date hereof; provided, however, that the Company
shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Shares have been qualified as above provided.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby (90 calendar days in the case the
period corresponds to the fiscal year of the Company), an earnings
statement of the Company (in form complying with the provisions of Rule
158 under the Act), covering a period of 12 months beginning after the
effective date of the Registration Statement and covering a period of
12 months beginning after the effective date of any post-effective
amendment to the Company Registration Statement but not later than the
first day of the Company's fiscal quarter next following such effective
date.
(h) The Company will use its reasonable best efforts to comply
with the Act and the Exchange Act. If at any time when the Company
Prospectus is required by the Act to be delivered in connection with
sales of the DECS any event shall occur or condition exist as a result
of which it is necessary to amend the Company Registration Statement or
amend or supplement the Company Prospectus in order that the Company
Prospectus 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 not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary at
any such time to amend the Company Registration Statement or amend or
supplement the
19
Company Prospectus in order to comply with the requirements of the
Act, the Company will promptly prepare and file with the Commission,
subject to Section 8(d), such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Company Registration Statement or the Prospectus comply with such
requirements.
(i) For a period of three years after the Closing Date, the
Company will furnish or make available to the Representatives copies of
all annual reports, quarterly 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, and furnish such other
documents, reports and information as shall be furnished by the Company
to its stockholders generally.
(j) The Company will not be or become, at any time prior to
the expiration of three years after the Closing Date, an open-end
investment trust, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act of 1940, as amended.
(k) The Company will not, without the prior written consent of
the Representatives, offer, sell, contract to sell or otherwise dispose
of any Shares (except for shares issuable upon conversion of securities
or exercise of warrants and options outstanding as of the date of the
Company Prospectus or pursuant to employee benefit plans) or warrants,
rights or options convertible into or exercisable or exchangeable for
Shares (except for the rights or options pursuant to employee benefits
plans existing on the date of the Company Prospectus) at any time for a
period of 90 days after the date of the Company Prospectus.
9. AGREEMENTS OF SELLING STOCKHOLDERS. Each Selling Stockholder agrees
with each of the Underwriters that:
(a) Such Selling Stockholder will not, without the prior
written consent of Xxxxxxx Xxxxx Xxxxxx, during the period of 90 days
following the Execution Time, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, or announce
the offering of any shares of any class of common stock of the Company
or any securities convertible into or exercisable or exchangeable for
shares of any class of common stock of the Company (whether such shares
or any such securities are now owned or hereafter acquired) or (ii)
enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of
shares of any class of the common stock of the Company, whether any
such transaction described in clause (i) or (ii) above is to be settled
by delivery of shares of any class of common stock of the Company or
such other securities, in cash or otherwise; PROVIDED, HOWEVER, that
such Selling Stockholder may engage in any of the transactions
described in clause (i) or (ii) above in connection with
20
the offering by the Trust of the DECS or any delivery of Shares
pursuant to the terms of such Selling Stockholder's Contract.
(b) Such Selling Stockholder will not take any action intended
to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the DECS or the Shares.
(c) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Shares (including with respect
to the offering and sale of the DECS) by an Underwriter or dealer may
be required under the Act, of any change in the information furnished
to the Company in writing by or on behalf of such Selling Stockholder
in the Company Registration Statement or the Company Prospectus
relating to such Selling Stockholder.
10. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Underwritten DECS and the Option DECS, as
the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Trust, the Company and the Selling Stockholders
contained herein as of the Execution Time, the Closing Date and any Settlement
Date pursuant to Section 4(b) hereof, to the accuracy of the statements of the
Trust, the Company and the Selling Stockholders made in any certificates
pursuant to the provisions hereof, to the performance by each of the Trust, the
Company and the Selling Stockholders of their respective obligations hereunder
and to the following additional conditions:
(a) If the Trust Registration Statement or the Company
Registration Statement has not become effective prior to the Execution
Time, unless the Representatives agree in writing to a later time, such
Trust Registration Statement or Company Registration Statement will
become effective not later than (i) 6:00 P.M. New York City time on the
date of determination of the public offering price of the DECS, if such
determination occurred at or prior to 3:00 P.M. New York City time on
such date or (ii) 9:30 A.M. New York City time on the Business Day
following the day on which the public offering price of the DECS was
determined, if such determination occurred after 3:00 P.M. New York
City time on such date; if filing of the Trust Prospectus or the
Company Prospectus, or any supplement thereto, is required pursuant to
Rule 497(h) or Rule 424(b), such Trust Prospectus or Company
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by such Rule; and no stop order
suspending the effectiveness of the Trust Registration Statement or the
Company Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Representatives shall have received the opinion of
Xxxxxxxx, Xxxxxx & Xxxxxx, special Delaware counsel for the Trust,
dated the Closing Date and addressed to the Representatives, with
respect to such matters as the Representatives may reasonably request.
21
(c) The Company Registration Statement, including any Rule
462(b) Company Registration Statement, has become effective and at the
Closing Date, no stop order suspending the effectiveness of the Company
Registration Statement shall have been issued under the Act and no
proceedings for that purpose shall have been instituted or shall be
pending or, to the knowledge of the Company, shall be contemplated by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel for the Underwriters.
(d) The Representatives shall have received a signed opinion
of Xxxxxxxxx & Xxxxxxxx, L.L.P., counsel for the Company, dated as of
the Closing Date, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) the Company has been duly incorporated,
is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation
and has the corporate power and authority to carry on
its business as described in the Company Prospectus
and the Company Registration Statement and to own,
lease and operate its properties; each of its
Subsidiaries has been duly organized or incorporated,
as the case may be, and is validly existing as a
limited liability company or a corporation, as the
case may be, in good standing under the laws of the
jurisdiction in which it is organized or
incorporated, as the case may be, and has the power
and authority to carry on its business as described
in the Company Prospectus and the Company
Registration Statement and to own, lease and operate
its properties;
(ii) the Company is duly qualified and is in
good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature
of its business or its ownership or leasing of
property requires such qualification, except where
the failure to be so qualified would not have a
Material Adverse Effect, and each of its Subsidiaries
is duly qualified and is in good standing and
authorized to do business in each foreign
jurisdiction in which the nature of its business or
its ownership or leasing of property requires such
qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
(iii) all the outstanding shares of capital
stock of the Company, including the Shares, have been
duly authorized and validly issued and are fully paid
and non-assessable;
(iv) all the outstanding shares of capital
stock or membership interests, as the case may be, of
each of the Company's Subsidiaries have been duly
authorized and validly issued and are fully paid and
non-assessable, and are owned of record by the
Company;
22
(v) this Agreement has been duly authorized,
executed and delivered by the Company;
(vi) the statements (other than statements
describing the amounts of the Company's net capital
and net liquid asset requirements) under the captions
"Risk Factors -- Failure to comply with net capital
and net liquid asset requirements may result in the
revocation of our registration with the SEC or our
expulsion from the NYSE and/or the AMEX",
"Business--Operations--NYSE Rules Governing Our
Specialist Activities," "Business--Regulatory
Matters" and "Plan of Distribution" (other than
statements in the "Plan of Distribution" furnished to
the Company by the Representatives, as to which no
opinion is rendered) in the Company Prospectus and
the Company Registration Statement, insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly
present in all material respects such legal matters,
documents and proceedings;
(vii) the Company's authorized equity
capitalization is as set forth in the Company
Prospectus and the Company Registration Statement
under the heading "Capitalization";
(viii) to the knowledge of such counsel,
neither the Company nor any of its Subsidiaries is in
violation of its charter, by-laws or other
organizational documents;
(ix) the execution, delivery and performance
of this Agreement, by the Company, the compliance by
the Company with all provisions hereof and the
consummation of the transactions contemplated hereby
will not (i) require any consent, approval,
authorization or other order of, or filing with, or
qualification with, any court or governmental or self
regulatory body or agency known to such counsel to be
applicable to the Company (except with respect to
such consents, approvals, authorizations,
registrations or qualifications as may be required
under state or foreign securities laws in connection
with the purchase and distribution of the DECS by the
Underwriters or the distribution of Shares pursuant
to the terms of the DECS and except such as have been
obtained under the Securities Act), (ii) conflict
with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or
by-laws of the Company or any of its Subsidiaries, or
any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to the
Company and its Subsidiaries, taken as a whole, to
which the Company or any of its Subsidiaries is a
party or by which the Company or any of its
Subsidiaries or their respective property is bound
that (A) is filed as an exhibit to the Company
Registration or (B) has been filed as an exhibit to
any of the Company's filings with the Commission
pursuant to the Act or the
23
Exchange Act, except any such conflict, breach or
default that individually or in the aggregate could
not reasonably be expected to have a Material Adverse
Effect, (iii) violate or conflict with any applicable
statute, law, ordinance, administrative, governmental
or self-regulatory organization rule or regulation,
or judgment, order or decree of any court or any
governmental body or agency known to us to have
jurisdiction over the Company, any of its
Subsidiaries or their respective property, except any
such violation or conflict that individually or in
the aggregate could not reasonably be expected to
have a Material Adverse Effect;
(x) 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
Subsidiaries is or could be a party or to which any
of their respective property is or could be subject,
which would be required to be described in a
prospectus pursuant to the Act which is not described
in the Company Registration Statement, the Company
Prospectus, the 2000 Form 10-K or any Form 10-Q of
the Company during 2001, other than those disclosed
therein or in any amendments thereto, and to the
knowledge of such counsel, there are no franchises,
contracts or other documents of a character which
would be required to be described in the Company
Registration Statement or the Company Prospectus or
to be filed as exhibits to the Company Registration
Statement that are not described or filed as
required.
(xi) The documents incorporated by reference
in the Company Prospectus or any further amendment or
supplement thereto made by the Company prior to the
Closing Date (other than the financial statements and
related schedules therein and any untrue statement or
omission of a material fact contained therein which
was corrected in the Company Prospectus, as to which
such counsel need express no opinion), when they
became effective or were filed with the Commission,
as the case may be, appeared on their face to comply
as to form in all material respects with the
requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(xii) the Company will not be an "investment
company" as such term is defined in the Investment
Company Act of 1940, as amended;
(xiii) to the best of such counsel's
knowledge after due inquiry, there are no contracts,
agreements or understandings between the Company and
any person granting such person the right, which
right has not been waived, to require the Company to
require the Company to include any securities that
are not already subject to an effective registration
statement of the Company such securities with the
Shares registered pursuant to any Registration
Statement; and
24
(xiv) each of XxXxxxxxx & Co. LLC ("LABCO.")
and XxXxxxxxx Financial Services, Inc. ("LFS") is
registered as a broker-dealer with the Commission
under the Exchange Act and is a member organization
in good standing with the NYSE and the AMEX, as the
case may be. Each of LaBCo. and LFS is registered
with the securities authority of each of the states
listed on EXHIBIT A hereto.
The opinion of Xxxxxxxxx & Xxxxxxxx L.L.P
shall also contain the following paragraph:
We have participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants for the
Company, the Selling Stockholders, the Representatives,
counsel for the Underwriters and representatives of the Trust
at which conferences the contents of the Company Prospectus
(including the documents incorporated by reference therein)
and the Company Registration Statement (including the
documents incorporated by reference therein) and related
matters were discussed, and, although we have not
independently verified and are not passing upon and assume no
responsibility for the accuracy, completeness or fairness of
the statements contained in the Company Prospectus (including
the documents incorporated by reference therein) and the
Company Registration Statement (including the documents
incorporated by reference therein) (except to the extent
specified in clause (iv)), and that our judgment as to
materiality is, to the extent we deem proper, based in part
upon the views of appropriate officers and other
representatives of the Company, nothing has come to our
attention that leads us to believe that the Company Prospectus
(including the documents incorporated by reference therein)
and the Company Registration Statement (including the
documents incorporated by reference therein), as of its date
or as of the date hereof, contained or contains an 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 contained therein, in the light of the
circumstances under which they were made, not misleading (it
being understood that we express no opinion with respect to
the financial statements and related notes thereto and the
other financial, statistical and accounting data included in
the Company Prospectus (including the documents incorporated
by reference therein) and the Company Registration Statement
(including the documents incorporated by reference therein)).
The opinion of Xxxxxxxxx & Xxxxxxxx L.L.P. described above shall be rendered to
you at the request of the Company and shall so state therein.
(e) The Selling Stockholders shall have caused Xxxxxxxxx &
Xxxxxxxx L.L.P., counsel for the Selling Stockholders, to have
furnished to the Representatives its opinion dated the Closing Date and
addressed to the Representatives, to the effect that:
25
(i) this Agreement, the Contracts, the Custody
Agreement, the Powers of Attorney, the Collateral Agreements
and the Reimbursement Agreements have been duly executed and
delivered by, or on behalf of, the Selling Stockholders and
assuming due authorization, execution and delivery by the
other parties thereto, constitute valid and legally binding
agreements of the Selling Stockholders; [and the Selling
Stockholders have the power and authority to sell, transfer
and deliver Shares in connection with the offering of the DECS
in the manner provided in this Agreement and the Contracts];
(ii) the Collateral Agreements create valid security
interests in favor of the Collateral Agent (as defined
therein) for the benefit of the Trust in the Shares pledged
thereunder as security for the performance by the Selling
Stockholders of their obligations under the Contracts and to
secure the observance and performance of the covenants and
agreements of the Selling Stockholders contained in the
Contracts and the Collateral Agreements;
(iii) no consent, approval, authorization, filing
with or order of any court or governmental agency or body
known to us to be applicable to the Selling Stockholders is
required for the consummation by the Selling Stockholders of
the transactions contemplated herein, except such as may have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the DECS by the Underwriters or
the distribution of the Shares pursuant to the terms of the
DECS in the manner contemplated in this Agreement, the Trust
Prospectus and the Company Prospectus;
(iv) the performance of this Agreement by the Selling
Stockholders, the distribution of the Shares, nor the
consummation of any other of the transactions herein
contemplated, nor the fulfillment of the terms hereof will not
conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any
property or assets of any Selling Stockholder pursuant to (i)
to the knowledge of such counsel, the terms of the agreements
identified on Exhibit B hereto, or (ii) any statute, law, rule
or regulation which, in the experience of such counsel,
typically is applicable to the types of transactions
contemplated herein or, to the knowledge of such counsel, any
judgment, order or decree applicable to such Selling
Stockholder of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority
asserting jurisdiction over such Selling Stockholder or any of
his properties; and
(f) The Representatives shall have received from Xxxxxx,
Xxxxxxxx, Xxxxx & Xxxxxxxx, counsel for the Underwriters and the Trust,
(i) such opinion or opinions, dated the Closing Date and addressed to
the Representatives, with respect to the issuance and sale of the DECS,
the Trust Registration Statement, the Trust Prospectus (together with
any supplement thereto), the Fundamental Agreements and other related
matters as the Representatives may reasonably require, and (ii) a
negative assurance letter dated the
26
Closing Date and addressed to the Representatives, with respect to the
Company Registration Statement, the Company Prospectus (together with
any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(g) The Trust shall have furnished to the Representatives a
certificate of the Trust, signed by the Managing Trustee and dated the
Closing Date, to the effect that:
(i) the representations and warranties of the Trust
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 Trust has complied in all
material respects with all of the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the Closing Date (such certificate to set forth all
known failures to comply with such agreements or satisfy such
conditions whether such known failures are material or
immaterial); and
(ii) no stop order suspending the effectiveness of
the Trust Registration Statement or the use of the Trust
Prospectus has been issued and to the Trust's knowledge after
due inquiry, no proceedings for that purpose have been
instituted or, to the Trust's knowledge, threatened.
(h) On the Closing Date, (i) the Company Registration
Statement and the Company Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be
stated therein under the Act and, in all material respects, shall
conform to the requirements of the Act and neither the Company
Registration Statement nor the Company Prospectus, as they may then be
amended or supplemented, shall 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,
(ii) there shall not have been, since the respective dates as of which
information is given in the Company Registration Statement, any
material adverse change or any development involving a prospective
material adverse change in or affecting the financial position,
stockholders' equity or results of operations of the Company and its
Subsidiaries, taken as a whole, (iii) the Company shall have complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date and (iv) the
other representations and warranties of the Company set forth in
Section 2 shall be accurate as though expressly made at and as of the
Closing Date. At the Closing Date, the Representatives shall have
received a certificate of the Chief Executive Officer, the President, a
Vice Chairman or a Vice President, and the Treasurer or Controller, of
the Company, dated as of the Closing Date, to such effect.
(i) Each Selling Stockholder shall have furnished to the
Representatives a certificate, dated the Closing Date, to the effect
that the representations and warranties of such Selling Stockholder in
this Agreement are true and correct in all material respects on and as
of the Closing Date to the same effect as if made on the Closing Date
and such
27
Selling Stockholder has complied in all material respects with all the
agreements and satisfied in all material respects all the conditions on
its part to be performed or satisfied at or prior to the Closing Date
(such certificate to set forth all known failures to comply with such
agreements or satisfy such conditions whether such known failures are
material or immaterial).
(j) The Representatives shall have received from Xxxxxx
Xxxxxxxx LLP (i) at the time of execution of this Agreement, a letter
dated the date hereof and delivered in accordance with Statement on
Auditing Standards No. 72, as amended, in form and substance
satisfactory to the Representatives and (ii) at the Closing Date, a
letter, dated as of the Closing Date, to the effect that Xxxxxx
Xxxxxxxx LLP reaffirms the statements made in the letter furnished
pursuant to Section 10(k)(i) hereof, except that the specified date
referred to shall be a date not more than five Business Days prior to
the Closing Date.
(k) The DECS shall have been approved for listing on the NYSE,
subject only to official notice of issuance.
(l) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Company Registration Statement
(exclusive of any amendment thereof) and the Company Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (j) of this Section 10 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and the Subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Company Prospectus (exclusive of
any supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the reasonable judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the DECS as
contemplated by the Trust Registration Statement and the Company
Registration Statement (in either case, exclusive of any amendment
thereof) and the Trust Prospectus and the Company Prospectus (in either
case, exclusive of any supplement thereto).
(m) The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and
arrangements.
(n) Each Fundamental Agreement shall have been executed and
delivered by all parties thereto, and the Selling Stockholders shall
have delivered to the Collateral Agent the number of Shares required by
the Collateral Agreement to be initially pledged and assigned by each
Selling Stockholder in accordance with the requirements of its
Collateral Agreement.
(o) At the Execution Time, the Representatives shall have
received an agreement substantially in the form of Exhibit C hereto
from each executive officer and director of the Company, addressed to
the Representatives relating to sales and certain other
28
dispositions of shares of common stock of the Company or certain other
securities, and such agreements shall be in full force and effect on
the Closing Date.
(p) Prior to the Closing Date, counsel for the Underwriters
shall have been furnished with all such documents, certificates and
opinions as they may reasonably request for the purpose of enabling
them to pass upon the sale of the Shares as herein contemplated and the
matters referred to in Section 10(h) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Company, the Trust, and the Selling Stockholders, the
performance of any of the covenants of the Company, the Trust, and the
Selling Stockholders, or the fulfillment of any of the conditions
herein contained.
(q) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by an "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
If any of the conditions specified in this Section 10 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Trust, the Company and the Selling
Stockholders in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 10 shall be
delivered to Cleary, Xxxxxxxx, Xxxxx & Xxxxxxxx, 0 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention of Xxxxxxx X. Xxxxx, Esq. and Xxxxxxx X. Xxxxx, Esq., on
the Closing Date.
11. EXPENSES. (a) The Selling Stockholders and the Company will pay all
expenses incident to the performance by the Trust and their obligations under
this Agreement and the Contracts and Collateral Agreements, including (i) the
preparation, printing and filing of the Notification and the Trust Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery of this
Agreement, the Trust Agreement, each of the Fundamental Agreements and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the DECS, (iii) the preparation, issuance and
delivery of the certificates for the DECS to the Representatives, (iv) the fees
and disbursements of the Trust's counsel, accountants and other advisors, (v)
the fees and disbursements of Selling Stockholders' counsel and other advisors,
(vi) the qualification of the DECS under state securities laws in accordance
with the provisions of Section 7(d) hereof, including filing fees and the
reasonable fees and disbursements of the counsel for the Underwriters in
connection therewith and in connection with the preparation of the related blue
sky survey and any supplement thereto, (vii) the printing and delivery to the
Representatives of
29
copies of each Preliminary Trust Prospectus, the Trust Prospectus and any
amendments or supplements thereto, (viii) the fees and expenses of any transfer
agent or registrar for the DECS, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, securing any required review by the NASD of the Trust Registration
Statement and the offering of the DECS in accordance with the provisions of
Section 7(d) hereof, (x) the fees and expenses incurred in connection with the
listing of the DECS on the NYSE and (xi) the fees and expenses incurred in
connection with the preparation and filing of a registration statement under the
Exchange Act relating to the DECS. Additionally, pursuant to the terms of the
Reimbursement Agreement, Selling Stockholders will reimburse the Underwriters
through Xxxxxxx Xxxxx Xxxxxx on the Closing Date in immediately available funds
for the Up-Front Fee Amount and the Up-Front Expense Amount (each as defined in
the Fund Expense Agreement dated as of the Closing Date between Xxxxxxx Xxxxx
Xxxxxx and XxXX) and for the up-front fees of the trustees of the Trust paid by
Xxxxxxx Xxxxx Xxxxxx, except that the Selling Stockholders shall not be
obligated to pay any fees or disbursements of counsel to the Underwriters other
than in connection with clauses (vi) and (ix) of this Section 11(a).
(b) The Company will pay all expenses incident to the
performance by the Company of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Company Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificates for the Shares to the Trust, (iii) the fees and disbursements of
the Company's counsel, accountants and other advisors, (iv) the qualification of
the Shares under state securities laws in accordance with the provisions of
Section 8(e) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any related blue sky survey and any
supplement thereto, (v) the printing and delivery to the Representatives of
copies of each Preliminary Company Prospectus, the Company Prospectus and any
amendments or supplements thereto, (vi) the fees and expenses of any transfer
agent or registrar for the Shares, (vii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, securing any required review by the NASD of the Company Registration
Statement and the offering of the Shares in accordance with the provisions of
Section 8(e) hereof and (viii) the fees and expenses incurred in connection with
the approval of the Shares for trading on the New York Stock Exchange.
(c) If the sale of the DECS provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 10 hereof is not satisfied, because of any refusal, inability
or failure on the part of the Company or Selling Stockholders to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Underwriters, Selling Stockholders will reimburse the
Underwriters through Xxxxxxx Xxxxx Xxxxxx upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by the Underwriters in connection with the proposed purchase
and sale of the DECS.
30
12. INDEMNIFICATION AND CONTRIBUTION.(a) The Company agrees to
indemnify and hold harmless the Trust, each of the Trustees, each Underwriter,
the directors, officers, employees and agents of each Underwriter, and each
person who controls the Trust or any Underwriter within the meaning of the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the 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
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Company Registration Statement as originally filed or in any
amendment thereof, or in any Preliminary Company Prospectus or the Company
Prospectus, or in any amendment thereof or supplement thereto (each such
document, a "COMPANY REGISTRATION DOCUMENT"), or the omission or alleged
omission to state in any Company Registration Document a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Trust Registration Statement as originally filed or in any
amendment thereof, or in any Preliminary Trust Prospectus or the Trust
Prospectus, or in any amendment thereto or supplement thereto (each such
document a "TRUST REGISTRATION DOCUMENT") or the omission or alleged omission to
state in any Trust Registration Document a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only to
the extent such untrue statement, such alleged untrue statement, omission or
alleged omission was made in reliance upon and in conformity with written
information furnished by the Company to the Trust specifically for use therein;
and in each such case agrees to reimburse each such indemnified party, as
incurred, 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 the Company in any such case will
not be liable 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 in any Company Registration
Document in reliance upon and in conformity with written information furnished
to the Company, the Selling Stockholders or the Trust by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein;
PROVIDED FURTHER, that with respect to any untrue statement or omission of
material fact made in any Preliminary Prospectus, the indemnity agreement
contained in this Section 12(a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstance
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (w) the Company had previously furnished
copies of the Prospectus to the Representatives, (x) delivery of the Prospectus
was required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Preliminary Prospectus was
corrected in the Prospectus and (z) there was not sent or given to such person,
at or prior to the written confirmation of the sale of such securities to such
person, a copy of the Prospectus. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Selling Stockholder severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Company Registration
31
Statement, each Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls the Company or any Underwriter
within the meaning of the Act or the Exchange Act and each other Selling
Stockholder, if any, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information
furnished to the Company by or on behalf of such Selling Stockholder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Selling Stockholder may otherwise have; PROVIDED, HOWEVER, that the
liability of each Selling Stockholder under the indemnity and contribution
provisions of this Section 12 shall be limited to the net proceeds for all
Shares sold by such Selling Stockholder pursuant to the Contracts.
(c) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Company Registration Statement, each person who controls the Company within
the meaning of the Act, and each Selling Stockholder, to the same extent as the
foregoing indemnity in clauses (a) and (b) to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company or the Trust by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the Company Registration
Documents. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company and each Selling Stockholder
acknowledge that the statements set forth under the heading "Plan of
Distribution," (i) the list of Underwriters and their respective participation
in the sale of the DECS, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Company Prospectus or
the Company Prospectus, constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any Company
Registration Document.
(d) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its each of its
officers who signs the Company Registration Statement and each person who
controls the Company within the meaning of the Act] to the same extent as the
foregoing indemnity in clause (a) to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the Company by
or on behalf of such Underwriter through the Representatives specifically for
inclusion in the Trust Registration Documents. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of the
cover page regarding delivery of the DECS, and, under the heading "Underwriting"
(i) the list of Underwriters and their respective participation in the sale of
the DECS, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Trust Prospectus or the Trust Prospectus,
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Trust Registration Document.
(e) Promptly after receipt by an indemnified party under this Section
12 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 12, notify the indemnifying party in
32
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a),
(b), (c) or (d) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a), (b), (c) or (d) above. The
indemnifying party shall be entitled to appoint counsel of indemnifying party's
choice at the indemnifying party's expense to represent the indemnified party in
any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); PROVIDED, HOWEVER, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(f) In the event that the indemnity provided in paragraph (a), (c)
(with respect to the Company) or (d) of this Section 12 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the Company
and the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"LOSSES") to which the Company and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Underwriters on the other
from the offering of the DECS; PROVIDED, HOWEVER, that in no case shall any
Underwriter (except as may be provided in any agreement among the underwriters
relating to the offering of the DECS) be responsible for any amount in excess of
the underwriting discount applicable to the DECS purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on one hand and
33
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. The benefits received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before deducting expenses) received
by the Trust, and the benefits received by the Underwriters shall be deemed to
be equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Trust Prospectus and, as between the Company
and the Underwriters, the Company shall be deemed for this purpose to have
received such total net proceeds as are received by the Trust. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company
on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
PRO RATA allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (f), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 12, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter; and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Company Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company; subject in each case to the applicable terms and conditions of this
paragraph (f).
(g) In the event that the indemnity provided in paragraph (b) or (d) of
this Section 12 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Selling Stockholders and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "LOSSES") to which the
Selling Stockholders and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Selling Stockholders on the one hand and by the Underwriters on the other from
the offering of the DECS; PROVIDED, HOWEVER, that in no case shall any
Underwriter (except as may be provided in any agreement among the underwriters
relating to the offering of the DECS) be responsible for any amount in excess of
the underwriting discount applicable to the DECS purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Selling Stockholders and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Selling
Stockholders on one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. The benefits received by the Selling
Stockholders shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Trust, and the benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Trust Prospectus and, as between the Selling Stockholders and
34
the Underwriters, the Selling Stockholders shall be deemed for this purpose to
have received such total net proceeds as are received by the Trust. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Selling Stockholders on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contribution were determined by PRO RATA allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (g), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 12, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, subject in each case to the
applicable terms and conditions of this paragraph (g).
13. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the DECS 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 amount of DECS set forth
opposite their names in Schedule I hereto bears to the aggregate amount of DECS
set forth opposite the names of all the remaining Underwriters) the DECS which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of DECS which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of DECS set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the DECS, and if such nondefaulting
Underwriters do not purchase all the DECS, then the Company shall have 36 hours
within which it may, but it is not obligated, to find one or more substitute
underwriters satisfactory to the Representatives to purchase such Securities
upon the terms set forth in this Agreement and if the Company is unable to find
one or more such underwriters that are satisfactory to the Representatives, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Company or the Selling Stockholders. In the event of a default by any
Underwriter as set forth in this Section 13, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Company Registration
Statement, the Company Prospectus, the Trust Registration Statement and the
Trust Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company, the Selling Stockholders and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
35
14. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in any class of the Company's Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the DECS as contemplated by the
Trust Prospectus (exclusive of any supplement thereto).
15. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Trust, the Company, Selling Stockholders or their respective officers, if
applicable, 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, the Trust, the Company, the Selling
Stockholders or any of the officers, directors or controlling persons referred
to in Section 12 hereof, and will survive delivery of and payment for the DECS.
The provisions of Sections 11, 12 and 17 hereof shall survive the termination or
cancellation of this Agreement.
16. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Xxxxxxx Xxxxx Xxxxxx Inc., General Counsel (fax no.:
(212) 3695) and confirmed to the General Counsel, care of Xxxxxxx Xxxxx Xxxxxx
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx
Xxxxxxxxxx; if sent to the Trust, will be mailed, delivered, or telefaxed and
confirmed to it c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx; if sent to the Company, will be
mailed, delivered or telefaxed and confirmed to it at XxXxxxxxx & Co Inc, 000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx XxXxxxxxx,
with a copy to Fulbright & Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxx, Esq.; or if sent to Selling Stockholders
shall be directed to them c/o Xxxxxx X. Xxxxxxx, Xxxx XxXxxxxx and Xxxxxxx
Xxxxxxxxx, XxXxxxxxx & Co Inc., One Exchange Plaza, New York, New York, 10006,
with a copy to Fulbright & Xxxxxxxx, L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq.
36
17. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 12 hereof, and no
other person will have any right or obligation hereunder.
18. APPLICABLE LAW. This agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
19. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties in any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same agreement.
20. HEADINGS. The section headings used herein are for convenience only
and shall not affect the construction hereof.
21. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"ACT" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized
or obligated by law to close in New York City.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMPANY EFFECTIVE DATE" shall mean each date and time that the Company
Registration Statement, any post-effective amendment or amendments thereto and
any Rule 462(b) Company Registration Statement become or becomes effective.
"COMPANY PROSPECTUS" shall mean the prospectus relating to the Shares that is
used in connection with the offering and sale of the DECS and that is first
filed pursuant to Rule 424(b) after the Execution Time or, if no filing pursuant
to Rule 424(b) is required, shall mean the form of final prospectus relating to
the Shares that is used in connection with such offering and sale and that is
included in the Company Registration Statement at the Company Effective Date.
"COMPANY REGISTRATION STATEMENT" shall mean the registration statement referred
to in Section 2(a) above including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Company
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Company
Registration Statement, as the case may be.
37
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"EXECUTION TIME" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"ORGANIZATIONAL DOCUMENTS" shall mean, in respect of any company, corporation,
trust, partnership, limited liability company, governmental agency or other
enterprise, as applicable, its founding act, charter, articles of incorporation
and by-laws, deed of trust, memorandum and articles of association, statute,
certificate of partnership, partnership agreement, limited liability company
agreement, or similar instrument.
"PRELIMINARY COMPANY PROSPECTUS" shall mean any preliminary prospectus relating
to the Shares referred to in Section 2(a) and any preliminary prospectus
included in the Company Registration Statement at the Company Effective Date
that omits Rule 430A Information.
"PRELIMINARY TRUST PROSPECTUS" shall mean any preliminary prospectus referred to
in Section 1(a) above and any preliminary prospectus included in the Trust
Registration Statement at the Trust Effective Date that omits Rule 430A
Information.
"RULE 415," "RULE 424," "RULE 430A," "RULE 462," "RULE 497(h)," "REGULATION
S-K" and "REGULATION S-X" refer to such rules and regulations under the Act.
"RULE 430A INFORMATION" shall mean information with respect to the DECS, the
Shares and the offering thereof permitted to be omitted from the Trust
Registration Statement (or, as used in Section 2 above, the Company
Registration Statement) when it becomes effective pursuant to Rule 430A.
"RULE 462(b) COMPANY REGISTRATION STATEMENT" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the initial registration statement referred to in
Section 2(a) above.
"RULE 462(b) TRUST REGISTRATION STATEMENT" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the initial registration statement referred to in
Section 1(a) above.
"TRUST EFFECTIVE DATE" shall mean each date and time that the Trust Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Trust Registration Statement became or become effective.
"TRUST PROSPECTUS" shall mean the prospectus relating to the DECS that is first
filed pursuant to Rule 497(h) after the Execution Time or, if no filing pursuant
to Rule 497(h) is required, shall
38
mean the form of final prospectus relating to the DECS included in the Trust
Registration Statement at the Trust Effective Date.
"TRUST REGISTRATION STATEMENT" shall mean the registration statement referred to
in paragraph 1(a) above, including exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Trust Registration Statement becomes
effective prior to the Closing Date, shall also mean such registration statement
as so amended or such Rule 462(b) Trust Registration Statement, as the case may
be. Such term shall include any Rule 430A Information deemed to be included
therein at the Trust Effective Date as provided by Rule 430A.
As used herein, the terms "TRUST REGISTRATION STATEMENT," "PRELIMINARY TRUST
PROSPECTUS" and "TRUST PROSPECTUS" shall not include the Company Prospectus
attached thereto.
As used herein, the terms "COMPANY REGISTRATION STATEMENT", "PRELIMINARY COMPANY
PROSPECTUS", and "COMPANY PROSPECTUS" shall not include the Trust Registration
Statement, Preliminary Trust Prospectus or Trust Prospectus.
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
39
represent a binding agreement among the Trust, the Company, Selling Stockholders
and the several Underwriters.
Very truly yours,
DECS TRUST IX
By:____________________________
Name:
Title:
XxXXXXXXX & CO INC.
By:_____________________________
Name:
Title:
Xxxxxx X. Xxxxxxx, Xx.,
As Attorney-in-fact for each of the
Selling Stockholders named in
Schedule II hereto
By:_____________________________
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXX XXXXX XXXXXX
ABN AMRO
ROTHSCHILD LLC
XXXXXXXXX & COMPANY, INC.
By Xxxxxxx Xxxxx Xxxxxx Inc.
By:_____________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement
S-1
SCHEDULE I
Number of Underwritten
DECS to be Number of Option DECS to
Underwriters Purchased be Purchased
---------------------- -----------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
ABN AMRO ROTHSCHILD LLC
Xxxxxxxxx & Company, Inc.
Total
Schedule I-1
SCHEDULE II
SELLING STOCKHOLDERS
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxx, Xx.
Xxxx XxXxxxxx
Xxxxxx X. XxXxxxxx
Xxxxxxx Xxxxxxxxx
Xxxx X. Xxxxxxx, III
Xxxxxxx X. Xxxxx
Xxxx X. XxXxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxxxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxx X. XxXxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, III
Xxxx XxXxxx
Xxxx X. Xxxxxxx, III
Xxxxxxxx Xxxxxx
Xxxxx X. XxXxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. XxXxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxx Xxxxxxx
Xxxxxxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Schedule II-1
Exhibit A
REGISTRATION OF LABCO. AND LFS WITH STATE SECURITIES AUTHORITIES
Exhibit B-1
EXHIBIT C
LOCK-UP AGREEMENT
January __, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "UNDERWRITING AGREEMENT") among
DECS Trust
IX, a Delaware statutory business trust (the "TRUST"), XxXxxxxxx &Co Inc., a
Delaware corporation (the "COMPANY"), the Sellers named therein and you relating
to an underwritten public offering of DECS of the Trust, representing beneficial
interests in contracts relating to shares of common stock, $0.01 par value, of
the Company ("COMMON STOCK").
In order to induce you to enter into the Underwriting
Agreement, the undersigned will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or otherwise
dispose of, or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any person in privity with the undersigned
directly or indirectly, including the filing (or participation in the filing) of
a registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of Common Stock of the Company or any securities convertible into, or
exercisable or exchangeable for such Common Stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days from the date
of the final prospectus filed under [Rule 424(b)( )] of the Securities Act of
1933, as amended (the "Securities Act") with respect to the Common Stock
registered under the Company's registration statement on Form S-3 (file no.
333-76928) other than shares of Common Stock disposed of as bona fide gifts
approved by Xxxxxxx Xxxxx Xxxxxx Inc., which approval shall not be unreasonably
withheld.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Exhibit B-1
Yours very truly,
By: _________________________
Name:
Title:
Exhibit C-2
Exhibit B
Specified Agreements relating to the Selling Stockholders
Exhibit B-1
