EXHIBIT 1.1
XXXXXX FINANCIAL, INC.
Debt Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
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October 16, 1997
Xxxxxx Financial, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell from time to time certain of its senior unsecured debt securities
(the "Senior Securities"), and/or subordinated unsecured debt securities (the
"Subordinated Securities") and/or junior subordinated unsecured debt securities
(the "Junior Securities") (the Senior Securities, Subordinated Securities and
Junior Securities are herein collectively called the "Securities") registered
under the registration statement referred to in Section l(a). The Senior
Securities will be issued under an indenture dated as of September 1, 1995
between the Company and Shawmut Bank Connecticut, National Association, as
Trustee, or pursuant to an indenture referred to in the next sentence (such
indentures, as at any time amended, being referred to herein individually as a
"Senior Indenture" or collectively as the "Senior Indentures"); the Subordinated
Securities will be issued under an indenture dated as of September 1, 1995
between the Company and Shawmut Bank Connecticut, National Association, as
Trustee, or pursuant to an indenture referred to in the next sentence (such
indentures, as at any time amended, being referred to herein individually as a
"Subordinated Indenture" or collectively as the "Subordinated Indentures"); and
the Junior Subordinated Securities will be issued under an indenture dated as of
September 1, 1995 between the Company and Shawmut Bank Connecticut, National
Association, as Trustee, or pursuant to an indenture referred to in the next
sentence (such indentures being referred to herein individually as a "Junior
Subordinated Indenture" or collectively as the "Junior Subordinated
Indentures"); each may be issued in one or more series, which series may have
varying designations, interest rates and payment dates, maturities, redemption
provisions, and other terms, with all such terms for any particular series being
determined at the time of sale. Each of the Senior Securities, the Subordinated
Securities and the Junior Subordinated Securities, respectively, may also be
issued under an indenture in the form of such indenture for each such class of
Securities, respectively, filed as an exhibit to the registration statement
referred to in Section 1(a), for which the related Trustee will be qualified in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") on or about the time of their respective issuance.
The Senior Indentures, the Subordinated Indentures and the Junior Subordinated
Indentures are sometimes referred to herein individually as an "Indenture" and
collectively as the "Indentures." The securities will be issued and sold
pursuant to one or more pricing agreements (each a "Pricing Agreement" and
together the "Pricing Agreements") in the form of Annex I hereto, with such
additions and
deletions as the parties thereto may determine, between the Company and the firm
or firms named in Schedule I to the Pricing Agreement. With respect to any
particular Pricing Agreement, the firm or firms named in Schedule I thereto are
hereinafter referred to as the "Underwriters," the particular series of
Securities specified in Schedule II thereto as being issued and sold to the
Underwriters thereunder are hereinafter referred to as the "Designated
Securities, the Indenture under which the Designated Securities are to be issued
is hereinafter referred to as the "Designated Indenture" and the firm or firms
designated as representatives of the Underwriters are hereinafter referred to as
the "Representatives"; if the Underwriters include only the Representatives, use
of the latter term shall be deemed to refer to the Underwriters. The basic
provisions set forth in this document (the "Basic Provisions) are intended to be
incorporated by reference in the Pricing Agreements and the sale of Designated
Securities to Underwriters pursuant to any particular Pricing Agreement shall be
subject to the terms and conditions set forth herein and therein. Any such
Pricing Agreement, together with the Basic Provisions incorporated by reference
therein, is herein referred to as this "Agreement." Capitalized terms defined
in any Pricing Agreement are used herein as therein defined.
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriters with respect to each offering
of Designated Securities that:
(a) A registration statement on Form S-3 (with the file number set
forth in Schedule II to the Pricing Agreement), including a prospectus,
relating to the Securities has been filed with the Commission and has
become effective; the Company meets the requirements for the use of such
form. A prospectus supplement (the "Prospectus Supplement") reflecting the
terms of the Designated Securities, the terms of the offering thereof and
the other matters set forth therein has been prepared and will be filed
pursuant to Rule 424 under the Securities Act of 1933 (the "Act"). The
registration statement (including the material incorporated therein by
reference, except for documents or portions thereof which are deemed, under
Rule 412 of the rules and regulations under the Act, not to be incorporated
into such registration statement and including all exhibits thereto other
than the Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), for
each Trustee under the Indentures, as amended at the time of any Pricing
Agreement, is hereinafter referred to, with respect to the transaction
contemplated by such Pricing Agreement, as the "Registration Statement",
and each prospectus then forming a part thereof (including the material
incorporated therein by reference), as supplemented by the Prospectus
Supplement, is hereinafter referred to as the "Prospectus". Any reference
to any amendment or supplement to the Registration Statement or Prospectus
shall be deemed to refer to and include the filing of any document with the
Commission deemed
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to be incorporated by reference therein after the effective date of the
Registration Statement.
(b) On the effective date of the registration statement relating to
the Securities (including the material incorporated therein by reference),
the registration statement conformed in all material respects with the
requirements of the Act, the Trust Indenture Act and the applicable rules
and regulations of the Commission thereunder and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and each of the Indentures conformed in all material respects
with the requirements of the Trust Indenture Act and the rules and
regulations of the Commission thereunder; on the date of each Pricing
Agreement and at the Time of Delivery (as hereinafter defined), the
Registration Statement and the Prospectus will conform in all material
respects with the requirements of the Act, the Trust Indenture Act and the
rules and regulations of the Commission thereunder and neither of such
documents will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading and the Designated Indenture will
conform in all material respects with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder;
provided, however, that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter, directly or through the Representatives, specifically for use
in connection with the preparation thereof.
(c) The accountants who have certified or shall certify the audited
financial statements of the Company included or incorporated by reference
in the Registration Statement and the Prospectus are, to the best of the
Company's knowledge, independent accountants as required by the Act and the
Rules and Regulations.
(d) The financial statements included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the financial
position, results of operations and changes in financial position of the
corporations to which they relate, as of the respective dates of, or for
the respective periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved.
(e) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
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contemplated or set forth in the Registration Statement and the Prospectus,
(i) there has not been any material adverse change in the financial
condition, earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, (ii) neither the Company nor any of its
subsidiaries have entered into any transaction not in the ordinary course
of business material to the Company and its subsidiaries taken as a whole
and (iii) neither the Company nor any of its subsidiaries have incurred any
liabilities or obligations, direct or contingent, not in the ordinary
course of business which are material in relation to the Company and its
subsidiaries taken as a whole.
(f) The Designated Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act and constitutes the valid and legally binding obligations of
the Company subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability affecting creditors
rights and to general equity principles; the Designated Securities conform
to the description thereof contained in the Prospectus and are duly and
validly authorized, and, when validly authenticated, issued and delivered
in accordance with the Designated Indenture and sold to the Underwriters,
will be validly issued and outstanding obligations of the Company entitled
to the benefits of the Designated Indenture; and at the Time of Delivery
the Designated Securities will rank pari passu with all other series of
Securities issued under the Designated Indenture.
(g) The Company and each of its subsidiaries (other than subsidiaries
which, considered in the aggregate as a single subsidiary, would not
constitute a "significant subsidiary" as defined in Rule 1-02(v) of
Regulation S-X promulgated by the Commission) have been duly incorporated
and are validly existing as corporations in good standing under the laws of
the respective jurisdictions of their incorporations; each of the Company
and such subsidiaries is duly licensed and duly qualified to do business as
a foreign corporation and is in good standing in all the jurisdictions in
which it owns or leases substantial property or in which the conduct of its
business requires such qualification, except where the failure to be so
qualified, considering all such cases in the aggregate, does not involve a
material risk to the business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole; and each
of the Company and such subsidiaries has full power and authority to own
its properties and conduct its business as described in the Prospectus; all
the outstanding shares of capital stock of each such subsidiary have been
duly and validly authorized and issued and are fully paid and nonassessable
and are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest and any
other security interests, claims, liens or encumbrances.
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(h) Neither the issuance or sale of the Designated Securities by the
Company, nor the consummation by the Company of any other of the
transactions herein contemplated, nor the fulfillment by the Company of the
terms hereof, will materially conflict with, result in a material breach of
or constitute a material default under any statute, the Company's charter
or by-laws or the terms of any indenture or other agreement or instrument
to which the Company or any of its subsidiaries is a party or is bound, or,
to the best of the knowledge of the Company, any order or regulation
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company or any of its subsidiaries.
(i) Except for litigation referred to in the Registration Statement
or in the Prospectus and litigation which, if determined adversely to the
Company or its subsidiaries, would not have a material adverse effect upon
the financial condition or the earnings of the Company and its subsidiaries
(taken as a whole), the Company knows of no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(j) Neither the Company nor any of the Company's subsidiaries is in
default in the payment of principal of or interest on any indebtedness or
in the performance of any covenant, term or condition contained in any
instrument evidencing any such indebtedness or under which it was created;
and at the Time of Delivery, there shall not exist any Event of Default as
defined in the Designated Indenture or any condition, event or act, which,
with notice or lapse of time or both, would constitute such an Event of
Default.
(k) The documents incorporated by reference in the Registration
Statement or Prospectus, when they became effective or were filed with the
Commission, as the case may be, under the Securities Exchange Act of 1934
(the "Exchange Act"), conformed, and any documents so filed and
incorporated by reference after the date of the Pricing Agreement relating
to the Designated Securities will, when they are filed with the Commission,
conform, in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder.
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2. Purchase and Offering.
(a) Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities. These Basic Provisions,
standing alone, shall not be construed as an obligation of the Company to
sell any of the Securities or as an obligation of any Underwriters to
purchase the Securities. Such obligations shall come into existence only
upon execution, by the Company and the Representatives named therein, of
the Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the firms which will be
Underwriters and their Representatives (if any), the principal amount of
the Designated Securities to be purchased by each Underwriter, the purchase
price to be paid by the Underwriters, the initial public offering price,
the terms of the Designated Securities not already specified in the
Designated Indenture, including, but not limited to, interest rate (if
any), maturity, redemption provisions and sinking fund requirements (if
any) and whether any of the Designated Securities may be sold pursuant to
Delayed Delivery Contracts ("Delayed Delivery Contracts"). Each Pricing
Agreement shall also specify the date, time and manner of delivery and
payment for the Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of facsimile transmissions. The obligations of
the Underwriters to purchase the Designated Securities pursuant to any
Pricing Agreement shall be several and not joint.
(b) Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus Supplement relating to such Designated Securities.
(c) Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form or
in book-entry form as specified in the Pricing Agreement, and in such
authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by
certified or official bank check or checks payable to the order of the
Company or by wire transfer, as specified in the Pricing Agreement, in the
funds specified in such Pricing Agreement, all at the place and time and
date specified in such Pricing Agreement with respect to Designated
Securities not being sold pursuant to Delayed Delivery Contracts, or at
such other place and time and date as the Representatives and the Company
may agree upon in writing,
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such time and date being herein called the "Time of Delivery" for such
Designated Securities. The Company agrees to have the Designated
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than noon on the business
day prior to the Time of Delivery for such Designated Securities.
3. Covenants of the Company. In connection with each offering of
Designated Securities, the Company covenants and agrees with the Underwriters:
(a) To cause the Prospectus Supplement to be filed pursuant to Rule
424 under the Act and notify the Representatives promptly of such filing;
to prepare and file with the Commission, after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery for
such Securities, promptly upon the request of the Representatives, any
amendments or supplements to the Registration Statement or the Prospectus
which, in the reasonable opinion of the Representatives, may be necessary
or advisable in connection with the distribution of such Securities by the
Underwriters; to make no further amendment or any supplement to the
Registration Statement or the Prospectus after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery for
such Securities which shall be reasonably disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any amendment or
supplement to the Registration Statement or the Prospectus after such Time
of Delivery and furnish the Representatives with copies thereof and to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a) or (c), 14 or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, (i) of the time when any
amendment to the Registration Statement has become effective or any
supplement to the Prospectus or any amended Prospectus has been filed, (ii)
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Prospectus, (iii) of the suspension
of the qualification of such Securities for offering or sale in any
jurisdiction, (iv) of the initiation or threatening of any proceeding for
any such purpose, or (v) of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or for
additional information; and in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal.
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
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offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction. The Company will also arrange for the
determination of the eligibility for investment for the Designated
Securities under the laws of such jurisdictions as the Representatives may
reasonably request.
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as the Representatives may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the date of the Pricing Agreement in
connection with the offering or sale of such Securities and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act
or the Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the date
of each Pricing Agreement, an earnings statement of the Company and its
consolidated subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and covering a period of at least twelve
consecutive months beginning after the date of such Pricing Agreement.
(e) During the period beginning from the date of the Pricing
Agreement for such Securities and continuing to and including the earlier
of (i) the termination of trading restrictions on such Securities of which
termination the Representatives agree to give the Company prompt notice
confirmed in writing, and (ii) the Time of Delivery for such Securities,
not to offer, sell, publicly announce any intention to offer or sell,
contract to sell or otherwise dispose of any debt securities of the Company
(except under prior contractual commitments or pursuant to arrangements
with banks or deposit
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taking institutions) denominated in U.S. dollars which mature more than one
year after such Time of Delivery, without the prior consent of the
Representatives, except pursuant to arrangements of which the
Representatives have been advised by the Company prior to the time of
execution of such Pricing Agreement, which advice is confirmed in writing
to the Representatives by the end of the business day following the date of
such Pricing Agreement.
(f) To pay all expenses incident to the performance of the Company's
obligations under this Agreement, including the expenses of printing all
documents relating to the offering, and to reimburse the Underwriters for
any expenses (including fees and disbursements of counsel) incurred by them
in connection with the matters referred to in Section 3(b) hereof and the
preparation of memoranda relating thereto, for any filing fee of the
National Association of Securities Dealers, Inc. or of the New York Stock
Exchange relating to the Designated Securities and for any fees charged by
investment rating agencies for rating of the Designated Securities.
4. Conditions. The obligations of the Underwriters of any Designated
Securities hereunder shall be subject, in the discretion of the Representatives,
to the accuracy of the representations and warranties on the part of the Company
herein, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been initiated or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with or otherwise
satisfied.
(b) Counsel for the Underwriters, XxXxxxxxx, Will & Xxxxx, shall have
furnished to the Representatives an opinion, dated the Time of Delivery of
such Designated Securities, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters. In rendering their opinion, such
counsel may rely on certificates of the Trustee under the Designated
Indenture as to the execution and authentication of the Designated
Securities.
(c) The General Counsel of the Company, or other counsel satisfactory
to the Representatives in their reasonable judgment shall have
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furnished to the Representatives an opinion, dated the Time of Delivery of
such Designated Securities, on the matters set forth in Exhibit A hereto.
(d) The independent accountants of the Company who have certified the
consolidated financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives:
(i) At or prior to the time of execution of the Pricing
Agreement relating to the Designated Securities, a letter, dated the
date of delivery thereof, to the effect set forth in Exhibit B hereto,
except for paragraph (3)(c) thereof, with respect to the Registration
Statement and the Prospectus at the time the Registration Statement
became effective.
(ii) At the Time of Delivery, a letter dated the Time of Delivery
to the effect set forth in Exhibit B hereto, with respect to the
Registration Statement and the Prospectus at the time of the Pricing
Agreement relating to the Designated Securities and as to such other
matters as the Representatives and the Company may have agreed upon at
or prior to the execution of the Pricing Agreement, which letter may
refer to the letter delivered pursuant to subsection (i) above and
reconfirm the matters set forth therein.
(e) Since the respective dates as of which information is given in
the Prospectus there shall not have been any material change, on a
consolidated basis, in the capital stock, short-term debt or long-term debt
of the Company and its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in the
financing condition, earnings, business or properties of the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, when viewed in
relation to the Company and its subsidiaries taken as a whole, is so
material and adverse as to make it impracticable or inadvisable, in the
reasonable judgment of the Representatives, to proceed with the public
offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus.
(f) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities, no downgrading shall have occurred in the rating
accorded to any of the Company's debt securities by Xxxxx'x Investors
Service, Inc., Standard & Poor's Corporation or Duff & Xxxxxx, Inc. and no
such rating agency shall have announced publicly that it has placed any of
such debt securities on what is commonly termed a "watch list" for possible
downgrading.
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(g) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, the effect of which (in any such case described in clause
(i), (ii) or (iii) hereof), in the reasonable judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus.
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate, signed by the Chairman of the Board, the President or any Vice
President, and by the principal financial or accounting officer, dated the
Time of Delivery, to the effect that, to the best of their knowledge based
upon reasonable investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the Time of
Delivery, and the Company has complied in all material respects with
all obligations on its part to be performed at or prior to the Time of
Delivery;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or, to the knowledge of the Company, is
threatened by the Commission; and
(iii) Since the date of the Pricing Agreement relating to the
Designated Securities, there has occurred no event required to be set
forth in an amendment or supplement to the Registration Statement or
the Prospectus which has not been so set forth, and there has been no
document required to be filed under the Exchange Act and the rules and
regulations thereunder that upon such filing would be deemed to be
incorporated by reference in the Prospectus that has not been so
filed.
(i) The Company shall have furnished to the Representatives such
further certificates and documents as they shall have reasonably requested.
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All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Representatives. The Company will furnish the
Representatives with such conformed copies of such opinions, certificates,
letters and other documents as they shall reasonably request.
5. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto (or contained in the
Registration Statement after it first became effective but prior to the
Pricing Agreement or in any prospectus forming a part thereof during such
period), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
provided that any such settlement is effected with the written consent of
the Company, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by then in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation thereof, and (ii) such indemnity with
respect to any prospectus forming a part of the Registration Statement
prior to the Pricing Agreement (the "Preliminary Prospectus") shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Designated Securities which are the subject thereof
if the Company shall have sustained the burden of proving that such person
did not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) excluding documents incorporated therein by
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reference (and the Company shall have fulfilled its obligation pursuant to
Section 3(c) above) at or prior to the confirmation of the sale of such
Designated Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Preliminary Prospectus was corrected in the Prospectus (or
the Prospectus as amended or supplemented). This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees (i) to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company 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 use in the preparation of the documents referred to in the
foregoing indemnity and (ii) to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any loss, claim, damage, liability or action on
which a claim for indemnity is validly made pursuant to this sentence.
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 and under the
heading "Underwriting" or "Plan of Distribution" in the Preliminary
Prospectus or the Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
5 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 5, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 5. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in 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
-13-
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with
the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel, other than local counsel, approved by the Representatives in the
case of paragraph (a) of this Section 5, representing the indemnified
parties under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 5 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the
Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided
by the immediately preceding sentence in not permitted by applicable law,
then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds form the sale
of Designated Securities (before deducting expenses) received by the
-14-
Company bear to the total discounts received by the Underwriters in respect
thereof. The relative fault shall be determined by reference to, among
other things, whether the indemnified party failed to give the notice
required under subsection (c) above, including the consequences of such
failure, and whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading relates to information supplied by the Company on the one
hand or by the Underwriters, directly or through the Representatives, on
the other and the relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, of the
Company on the one hand or the Underwriters, directly or through the
Representatives, on the other. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim (which shall be limited
as provided in subsection (c) above if the indemnifying party has assumed
the defense of any such action in accordance with the provisions thereof).
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Designated Securities purchased by or through it
were sold exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section 5,
each person who controls an Underwriter within the meaning of the Act 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
Registration Statement or any amendment thereto and each director of the
Company shall have the same rights to contribution as the Company. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party
or parties under this subsection (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party
or parties shall not relieve
-15-
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under subsection
(d).
(e) No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 5 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
6. Default of Underwriters.
(a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter
the Representatives shall not have arranged for the purchase of such
Designated Securities then the Company shall be entitled to a further
period of thirty-six hours to provide another party or such other parties
as shall be satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective
prescribed periods the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the Company
shall have notified the Representatives that it has so arranged for the
purchase of such Designated Securities the Representatives or the Company
shall have the right to postpone the Time of Delivery for such Designated
Securities for a period of not more than seven days in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section 6 with like effect as if such person had originally been a party to
the Pricing Agreement with respect to such Designated Securities.
-16-
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives or the company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated securities, and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives or the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriters or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 3(f) hereof and the
indemnity and contribution agreements in Section 5 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
7. Survival of Indemnities, Representations, etc. The respective
indemnities, agreements, representations, warranties, covenants and other
statements of the Company, as set forth in this Agreement or made by or on
behalf of it pursuant to this Agreement, and the agreements of the several
Underwriters contained in Section 5 hereof, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any officer or director or controlling
person of the Company, and shall survive delivery of and payment for the
Securities.
8. Reimbursement of Underwriters' Expenses. If any Pricing Agreement
shall be terminated pursuant to Section 6 hereof or if the Designated Securities
are not delivered by or on behalf of the Company because of any of the events
referred to in Section 4(h) hereof, then the Company shall not then be under any
liability to
-17-
any Underwriter with respect to Designated Securities covered by such Pricing
Agreement except as provided in Section 3(f) and Section 5 hereof; but, if for
any other reason Designated securities are not delivered by or on behalf of the
Company as provided herein, the company will reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 3 (f) and Section 5 hereof.
9. Representatives; Notices. In all dealings hereunder, the
Representatives of the Underwriters of Designated Securities shall act on behalf
of each of such Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice, waiver or agreement on behalf of
any Underwriter made or given by such Representative.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing and if to the
Underwriters shall be sufficient in all respects, if delivered or sent by
registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the Registration Statement: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 5(c) hereof shall be delivered or
sent by registered mail to such Underwriter at its address furnished to the
Company in writing for the purpose of communications hereunder. Any party to
this Agreement may change such address for notices by sending to the other
parties written notice of a new address for such purpose.
10. Binding Effect; Successors. This Agreement shall be binding upon, and
inure solely to the benefits of, the Underwriters, the Company and, to the
extent provided in Section 5 and Section 7 hereof, the officers and directors of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
11. Applicable Law. These Basic Provisions and each Pricing Agreement
shall be construed in accordance with the law of the State of New York.
12. Counterparts. Each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which
-18-
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
-19-
Exhibit A
Matters to be Covered by Opinion of
Company Counsel
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority under the laws of such State to own its properties
and conduct its business as described in the Prospectus; is duly qualified to do
business as a foreign corporation in good standing in each state or other
jurisdiction in which, in the opinion of such counsel, such qualification is
required, or if in any jurisdiction the Company is not so qualified, the failure
to so qualify does not, considering all such cases in the aggregate, involve a
material risk to the business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole; all of the
issued and outstanding shares of capital stock of each subsidiary of the
Company, other than those which considered in the aggregate as a single
subsidiary, would not constitute a significant subsidiary (as defined in Rule
1-02(v) of Regulation S-X promulgated by the Commission), are owned by the
Company, free and clear of all claims, liens, encumbrances and security
interests; each of such subsidiaries of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and is qualified to do business and is in good
standing in each state or other Jurisdiction in which, in the opinion of such
counsel, such qualification is required, or if in any jurisdiction any such
subsidiary is not so qualified, the failure to so qualify does not, considering
all such cases in the aggregate, involve a material risk to the business,
properties, financial position or results of operations of the Company and its
subsidiaries, taken as a whole;
(ii) The Pricing Agreement with respect to the Designated Securities and
any Delayed Delivery Contracts have been duly authorized, executed and delivered
by the Company;
(iii) The Designated Securities have been duly authorized, executed,
authenticated and delivered, constitute valid and legally binding obligations of
the Company in accordance with their terms and are entitled to the benefits
provided by the Designated Indenture, subject, as to enforcement of the
Designated Securities, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Designated Securities and the Designated
Indenture conform to the descriptions thereof contained in the Prospectus;
(iv) The Designated Indenture has been duly authorized, executed and
delivered by the Company; has been duly qualified under the Trust Indenture Act;
and constitutes a valid and binding agreement of the Company enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(v) The Registration Statement has become effective under the Act and, to
the best knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act; the
Registration Statement and the Prospectus and any amendment or supplement
thereto (other than the financial statements and other financial data therein,
as to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act, the Trust Indenture Act and
the rules and regulations of the Commission thereunder; such counsel does not
believe that the Registration Statement or the Prospectus, as of the time of the
Prospectus Supplement and the time of delivery contains any untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, other than financial
statements and other financial data therein, as to which such counsel need
express no opinion;
(vi) The documents incorporated by reference in the Registration Statement
and the Prospectus (other than the financial statements and other financial data
therein, as to which such counsel need express no opinion), when they were filed
with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder;
(vii) The issuance of the Designated Securities in accordance with the
Designated Indenture and the sale thereof in accordance with this Agreement will
not, and at the date of such opinion the sale of any thereof covered by Delayed
Delivery Contracts would not, result in any violation of any of the provisions
of the Company's Restated Certificate of Incorporation or By-laws or of any
indenture, mortgage, deed of trust, loan agreement, lease financing agreement or
other similar agreement or instrument known to such counsel by which the
Company, or any of its subsidiaries, is bound;
(viii) No consent, approval or authorization from any regulatory board,
agency or instrumentality having jurisdiction over the Company (other than
registration under the Act, qualification under state securities or Blue Sky
laws and, if applicable, qualification under the Trust Indenture Act) is
necessary to authorize the issuance and sale of the Designated Securities; and
(ix) To the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is no
contract or other document
A-2
of a character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or filed as
required, and the statements included or incorporated in the Prospectus
describing any legal proceedings or material contracts or agreements relating to
the Company fairly summarize such matters.
A-3
Exhibit B
Matters to be Covered by Letters of
Independent Accountants to the Company
(1) They are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations of
the Commission thereunder.
(2) In their opinion, the audited financial statements and financial
statement schedules of the Company and its consolidated subsidiaries included or
incorporated in the Registration Statement and the Prospectus and reported on by
them comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations of the Commission thereunder;
(3) On the basis of a reading of the amounts included or incorporated in
the Registration Statement and the Final Prospectus in response to Item 301 of
Regulation S-K and of the latest unaudited financial statements made available
by the Company and its subsidiaries; their limited review in accordance with
standards established by the American Institute of Certified Public Accountants
of the unaudited interim financial information; carrying out certain specified
procedures (but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of the minutes
(or drafts thereof where approved minutes were not available) of the meetings of
the stockholders, directors and executive committees of the Company; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent audited
financial statements incorporated in the Registration Statement and the
Prospectus, nothing came to their attention which caused them to believe that:
(a) The amounts in the "Selected Financial Data" included or
incorporated in the Registration Statement and the Prospectus, do not agree
with the corresponding amounts in the audited or the unaudited financial
statements from which such amounts were derived, except that, with respect
to the amounts representing the ratio of earnings to fixed charges for each
period presented, such amounts are not accurately derived from worksheets
prepared by the Company;
(b) Any unaudited financial statements of the Company and its
subsidiaries included or incorporated in the Registration Statement and the
Prospectus do not comply as to form in all material respects with
applicable accounting requirements and with the published rules and
regulations of the
Commission with respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; or such unaudited
financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that
of the audited financial statements included or incorporated in the
Registration Statement and the Prospectus; or
(c) With respect to the period subsequent to the date of the most
recent financial statements included or incorporated in the Registration
Statement and the Prospectus, there was, at a specified date not more than
five business days prior to the date of the letter, any change in the
capital stock or any increase in the total short-term or total long-term
debt of the Company and its consolidated subsidiaries or there were, as of
the month-end date prior to the date of the letter for which financial
statements of the Company and its consolidated subsidiaries are available,
any decreases in its consolidated total assets or its stockholders' equity,
in each case as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the Registration
Statement and the Prospectus, or for the period from the date of the most
recent financial statements included or incorporated in the Registration
Statement and the Final Prospectus to such month-end date there were any
decreases, as compared with the corresponding period in the preceding year,
in total revenue or income before income taxes or in the total income of
the Company and its consolidated subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by the
Representatives; or
(d) The amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Prospectus
do not agree with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a basis
substantially consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the Registration
Statement and the Prospectus, and
(4) They have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company) set
forth or incorporated in the Registration Statement and the Prospectus, and in
Exhibit 12 to the Registration Statement, including the information included or
incorporated in Items 1 and 7 of the Company's annual report on Form 10-K,
incorporated therein, or in "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated in any of the
Company's quarterly reports on
B-2
Form 10-Q incorporated therein, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal interpretation.
Reference to the Registration Statement and the Prospectus are to such
documents as amended and supplemented at the date of the letter.
B-3
ANNEX I
PRICING AGREEMENT
[Manager]
[Co-Manager, if any]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Street Address]
New York, New York
_______________, 199___
Dear Sirs:
Xxxxxx Financial, Inc. (the "Company") proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the Underwriting
Agreement Basic Provisions dated September 8, 1995 (the "Basic Provisions"),
copies of which have previously been supplied to you, is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement. Each reference
to the Representatives herein and in the provisions of the Basic Provisions so
incorporated by reference shall be deemed to refer to you. Capitalized terms
used herein, unless otherwise defined herein, have the meanings provided in the
Basic Provisions.
The Company has delivered to you for each of the Underwriters copies of the
Registration Statement and the Prospectus, including the documents incorporated
therein by reference. The Prospectus Supplement relating to the Designated
Securities, in the form heretofore delivered to you, is now proposed to be
filed, or mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the Basic
Provisions, the Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
[The Company authorizes the Underwriters to solicit offers to purchase
Designated Securities from the Company pursuant to Delayed Delivery Contracts
substantially in the form of Schedule III hereto but with such changes therein
as the Company may approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, at the Time of Delivery a
commission in the amount set forth in Schedule II hereto. Delayed Delivery
Contracts are to be with purchasers of the types approved by the Company and set
forth in the Prospectus and subject to other conditions therein set forth.
Except as the Company may otherwise agree, each Delayed Delivery Contract must
be for the minimum principal amount set forth in Schedule II hereto and the
aggregate principal amount of all Delayed Delivery Contracts may not exceed the
amount set forth in such Schedule II. The Underwriters will not have any
responsibility in respect of the validity or performance of any Delayed Delivery
Contracts.]
[If the Company executes and delivers Delayed Delivery Contracts, the
Securities subject to such contracts shall be deducted from the Designated
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Designated Securities to be purchased by each Underwriter
shall be reduced pro rata in proportion to the principal amount of Designated
Securities set forth opposite each Underwriter's name in Schedule I hereto,
except to the extent that the Representatives determine that such reduction
shall be otherwise and so advise the Company in writing; provided, however, that
the total principal amount of Designated Securities to be purchased by all
Underwriters shall be the total principal amount of Designated Securities set
forth in Schedule I hereto less the principal amount of Designated Securities
covered by Delayed Delivery Contracts. The Company will advise you not later
than 10:00 A.M., New York City time, on the third full business day preceding
the Time of Delivery (or at such later time as you may otherwise agree) of the
sales of Designated Securities pursuant to Delayed Delivery Contracts which have
been so approved.]
* * *
ANNEX I-2
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the Basic Provisions incorporated herein by reference, shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters.
Very truly yours,
XXXXXX FINANCIAL, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of the date hereof:
------------------------------------
[Manager]
------------------------------------
[Co-Manager, if any]
On behalf of each of the Underwriters
ANNEX I-3
SCHEDULE I
Principal Amount of Designated
Securities to be Purchased
Underwriter -----------------------------------
[Manager].................................................. $______________
[Co-Manager, if any].......................................
[Names of other Underwriters]..............................
Total $______________
SCHEDULE II
Registration Statement No.:
Title of Designated Securities:
[__%] [Floating Rate] [Zero Coupon] [Senior] [Subordinated] [Junior
Subordinated] [Notes] [Debentures] due
_________________________________________________________________________
Aggregate Principal Amount:
$____________________________
Denominations:
[$1,000] [$5,000] [$______________ ]
Price to Public:
___% of the principal amount of the Designated Securities, plus accrued
interest from _______________ to the Time of Delivery [and accrued
amortization, if any, from _______________ to the Time of Delivery]
Price to Underwriters:
___% of the principal amount of the Designated Securities, plus accrued
interest from _______________ to the Time of Delivery [and accrued
amortization, if any, from _______________ to the Time of Delivery]
Indenture:
[Senior Indenture] [Subordinated Indenture] [Junior Subordinated Indenture]
Maturity:
_______________, 19___
Interest Rate:
[___]% [Zero Coupon] [Method of determination]
Interest Payment Dates:
[Months and dates]
Interest Payment Record Dates:
[Months and dates]
Redemption Provisions:
[No redemption provisions)
[The Designated Securities may be redeemed in whole or in part at the option
of the Company, in the amount of $_____ or an integral multiple thereof, [on
or after ____________ at the following redemption prices (expressed in
percentages of principal amount). If redeemed during the 12-month period
beginning _______________,
Year Redemption Price
---- ----------------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.] [on any interest payment date
falling on or after _________, at the election of the Company, at a redemption
price equal to the principal amount thereof, plus accrued interest to the date
of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law.]
Sinking Fund Provisions:
[No sinking Fund provisions]
[The Securities are entitled to the benefit of a sinking Fund to retire $_____
principal amount of Securities on _____ in each of the years _____ through
_____ at 100% of their principal amount plus accrued interest] [, together
with [cumulative] [non-cumulative] redemptions at the option of the Company to
retire an additional $__________ principal amount of Securities in the years
_____ through _____ at 100% of their principal amount plus accrued interest.]
II-2
Time of Delivery:
_______________________________________
Closing Location:
_______________________________________
Funds in which Underwriters to make Payment:
Delayed Delivery:
Underwriters' commission shall be ___% of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been
entered into and the check given in payment of such commission shall be
drawn to the order of:
Maximum aggregate principal amount of Designated Securities to be offered
and sold pursuant to Delayed Delivery Contracts: $______________
Minimum principal amount of each Delayed Delivery Contract:
$_________________
[Other Terms]*:
__________________________
/*/ A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding
of the transaction contemplated. Such a description might
appropriately be in the form in which such features will be described
in the Prospectus Supplement for the offering.
II-3
SCHEDULE III
Delayed Delivery Contract
XXXXXX FINANCIAL, INC.
c/o
_______________, 199__
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxx Financial, Inc.
(hereinafter called the "Company"), and the Company agrees to sell to the
undersigned,
$
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated
__________, 199__ [as amended or supplemented], receipt of a copy of which is
hereby acknowledged, at a purchase price of ___% of the principal amount
thereof, plus accrued interest from the date from which interest accrues as set
forth below, and on the further terms and conditions set forth in this contract.
[The undersigned will purchase the Designated Securities from the Company
on __________, 199__ (the "Delivery Date") and interest on the Designated
Securities so purchased will accrue from __________, 199__.]
[The undersigned will purchase the Designated Securities from the Company
on the delivery date or dates and in the principal amount or amounts set forth
below:
Principal Date From which
Delivery Date Amount Interest Accrues
Principal Date From which
Delivery Date Amount Interest Accrues
------------- ----------- ----------------
, 199 $ , 199
, 199 $ , 199
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in ______________ funds at the office of
_______________, _______________, _______________, or by wire transfer to a bank
account specified by the Company, on [the] [such] Delivery Date upon delivery to
the undersigned of the Designated Securities then to be purchased by the
undersigned in definitive, fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five business
days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [the] (each] Delivery Date shall be subject to the
conditions that (a) the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date is prohibited under the laws
of the jurisdiction to which the undersigned is subject and (b) the Company, on
or before __________, 199__, shall have sold to the several Underwriters,
pursuant to the Pricing Agreement dated __________, 199__, with the Company, an
aggregate principal amount of Designated Securities equal to $_______, minus the
aggregate principal amount of Designated Securities to be covered by this
contract and other contracts similar to this contract. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion or opinions of the General Counsel
of the Company delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited form purchasing the Designated
Securities hereby agreed to be purchased by its under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of-the parties hereto 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 instrument.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
III-2
without limiting the foregoing, acceptances of such contracts need not be on a
firstcome, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned as its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so sailed or delivered by the Company.
Yours very truly,
[Name of Purchaser]
By:
------------------------------
Name:
Title:
Address:
Accepted, ________________, 199__
XXXXXX FINANCIAL, INC.
By:________________________________
Name:
Title:
III-3
