Exhibit 1
UNDERWRITING AGREEMENT
____________, 199_
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell to the several Underwriters [number and
title of warrants] Warrants (the "Firm Offered Warrants"). The Company also
proposes to issue and sell to the several Underwriters not more than an
additional [number of warrants for over-allotment and title of warrants]
Warrants (the "Additional Offered Warrants") if and to the extent that the
Underwriters shall have determined to exercise the right to purchase such
Additional Offered Warrants granted to the Underwriters in the third paragraph
hereof. The Firm Offered Warrants and the Additional Offered Warrants are
collectively referred to herein as the Offered Warrants. The Offered Warrants
are to be issued pursuant to the provisions of a Warrant Agreement (the
"Warrant Agreement") dated as of ____________, 199_ among the Company, [name
of Warrant Agent], as Warrant Agent and Xxxxxx Xxxxxxx & Co. Incorporated, as
Determination Agent.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective numbers of Firm Offered
Warrants set forth below opposite their names at a purchase price of U.S.
$[___] per Warrant:
Number of Firm
Name Offered Warrants
---- ----------------
[Xxxx Xxxxxx Xxxxxxxx Inc.]
[Xxxxxx Xxxxxxx & Co. Incorporated]
[Other underwriters] -------------
Total.......................................... -------------
The Underwriters will pay for the Firm Offered Warrants upon
delivery thereof at the offices of Xxxxx Xxxx & Waradwell at 10:00 a.m. (New
York time) on ____________, 199_, or at such other time, not later than 5:00
p.m. (New York time) on ____________, 199_, as shall be designated by the
Manager. The time and date of such payment and delivery are hereinafter
referred to as the Closing Date.
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company agrees to sell to the
Underwriters the Additional Offered Warrants, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to [number
of warrants for over-allotment] Additional Offered Warrants at the purchase
price. Additional Offered Warrants may be purchased solely for the purpose
of covering over-allotments made in connection with the offering of the
Firm Offered Warrants.
If any Additional Offered Warrants are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Offered Warrants (subject to such adjustments to eliminate
fractional Warrants as we may determine) that bears the same proportion to the
total number of Additional Offered Warrants to be purchased as the number of
Firm Offered Warrants set forth above opposite the name of such Underwriter
bears to the total number of Firm Offered Warrants. The Underwriters will pay
for any Additional Offered Warrants upon delivery thereof at the offices of
Xxxxx Xxxx & Xxxxxxxx at 10:00 a.m. (New York time) on such date (which may be
the same as the Closing Date but shall in no event be earlier than the Closing
Date nor later than ten business days after the giving of notice hereinafter
referred to) as shall be designated in a written notice from us to the Company
of our determination, on behalf of the Underwriters, to purchase a number,
specified in said notice, of Additional Offered Warrants. The time and date
of such payment and delivery are hereinafter referred to as the Option Closing
Date. The notice of the determination to exercise the option to purchase
Additional Offered Warrants and of the Option Closing Date may be given at any
time within 30 days after the date of this Agreement. The several obligations
of the Underwriters to purchase Additional Offered Warrants are subject to the
delivery to us on the Option Closing Date of such documents as we may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Offered Warrants and other
matters related to the issuance of the Additional Offered Warrants.
The Offered Warrants shall have the terms set forth in the
Prospectus dated June 2, 1997, and the Prospectus Supplement dated __________,
199_, including the following:
For Index Warrants:
Designation of the Series of Warrants: [ ] Index
[Call] [Put] Warrants
Aggregate Number of Firm Warrants:
Price to Public:
Index/Indices:
[Strike Level] [Base Value]:
First date upon which Warrants may be exercised:
Expiration Date:
Currency in which payments shall
be made:
Minimum number of Warrants exercisable by
any holder on any day:
Maximum number of Warrants exercisable on
any day: [In the aggregate] [by any
beneficial owner]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other terms:
For Currency Warrants:
Designation of the Series of Warrants: [ ] Currency
[Call] [Put] Warrants
Aggregate Number of Firm Warrants:
Price to Public:
Base [Currency][Currencies]:
Reference [Currency][Currencies]::
First date upon which Warrants may be exercised:
Expiration Date:
Currency in which payments shall be made:
Minimum number of Warrants exercisable by
any holder on any day:
Maximum number of Warrants exercisable on any
day: [In the aggregate] [by any beneficial
owner]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other terms:
For Interest Rate Warrants:
Designation of the Series of Warrants: [ ] Interest
Rate [Call] [Put] Warrants
Aggregate Number of Firm Warrants:
Price to Public:
Interest Rate, Interest Swap Rate or other Rate:
Debt Instrument:
[Strike] [Base] Amount:
First date upon which Warrants may be exercised:
Expiration Date:
Currency in which payments shall be made:
Minimum number of Warrants exercisable by any holder
on any day:
Maximum number of Warrants exercisable on any day:
[In the aggregate] [by any beneficial owner]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. Inc.
Underwriting Agreement Standard Provisions (Warrants) dated June 2, 1997, a
copy of which is attached hereto, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement to the
same extent as if such provisions had been set forth in full herein, except
that, (i) if any term defined in such document is otherwise defined herein,
the definition set forth herein shall control, (ii) all references in such
document to a type of warrant that is not an Offered Warrant shall not be
deemed to be a part of this Agreement and (iii) all references in such
document to a type of agreement that has not been entered into in
connection with the transactions contemplated hereby shall not be deemed to
be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[XXXX XXXXXX XXXXXXXX INC.]
[XXXXXX XXXXXXX & CO.
INCORPORATED]
[Name of Other Underwriters]
On behalf of themselves and the other
Underwriters named herein
By XXXXXX XXXXXXX & CO.
INCORPORATED
By:
---------------------------------------
Name:
Title:
-----------------------------------------------------------------------------
Accepted:
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:
-----------------------------------
Name:
Title:
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(WARRANTS)
June 2, 1997
From time to time, Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.,
a Delaware corporation (the "Company"), may enter into one or more
underwriting agreements that provide for the sale of designated securities to
the several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company proposes to issue from time to time (i) warrants
entitling the holders thereof to receive from the Company, upon exercise, an
amount in cash determined by reference to decreases and/or increases in the
level of a specified index or in the levels (or relative levels) of two or
more indices or combinations of indices, which index or indices may be based
on one or more U.S. or foreign stocks, bonds or other securities, one or more
U.S. or foreign interest rates, one or more currencies or currency units, or
any combination of the foregoing ("Index Warrants"), (ii) warrants entitling
the holders thereof to receive from the Company, upon exercise, an amount in
cash determined by reference to the right to purchase and/or the right to sell
a specified amount or specified amounts of one or more currencies or currency
units or any combination thereof for a specified amount or specified amounts
of one or more different currencies or currency units or combination thereof
("Currency Warrants") and (iii) warrants entitling the holders thereof to
receive from the Company, upon exercise, an amount in cash determined by
reference to decreases and/or increases in the yield or closing price of one
or more specified debt instruments issued either by the United States
government or by a foreign government, in the interest rate or interest rate
swap rate or other rate established from time to time by one or more specified
financial institutions or in any specified combination of the foregoing
("Interest Rate Warrants"). Such Index Warrants, Currency Warrants and
Interest Rate Warrants are hereinafter collectively referred to as "Warrants."
Such Warrants are to be issued pursuant to the provisions of a Warrant
Agreement specified in the Underwriting Agreement. The Warrants will have
varying designations, expiration dates, exercise prices, minimum and maximum
limits on exercise of Warrants and exchange rates to determine U.S. dollar
value upon exercise and other terms, all of which are specified in the
Underwriting Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Warrants and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Warrants pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term Registration Statement means the
registration statement, as amended to the date of this Agreement. The term
Basic Prospectus means the prospectus included in the Registration Statement.
The term Prospectus means the Basic Prospectus together with the Prospectus
Supplement. The term preliminary prospectus means a preliminary prospectus
supplement specifically relating to the Offered Warrants together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus"
and "preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
The term Contract Warrants means the Offered Warrants, if any,
to be purchased pursuant to the delayed delivery contracts substantially in
the form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters' Warrants"
means the Offered Warrants other than Contract Warrants.
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as of the date of the Underwriting
Agreement that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain and each
such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this Section 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
concerning any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Warrant Agreement has been duly authorized and at
the Closing Date will have been duly executed and delivered by the
Company and will be a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability
thereof (i) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors'
rights generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(g) The Offered Warrants have been duly authorized and,
when executed and countersigned in accordance with the provisions of the
Warrant Agreement and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement or by
institutional investors in accordance with the terms of the Delayed
Delivery Contracts, if any, will be entitled to the benefits of the
Warrant Agreement and will be valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms
except as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(h) The Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Warrant Agreement, the Offered Warrants and any Delayed Delivery
Contracts, will not contravene any provision of applicable law or the
restated certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval or authorization or order of
or qualification with any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement,
the Warrant Agreement, the Offered Warrants or any Delayed Delivery
Contracts except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Offered Warrants.
(j) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto effected subsequent to the date of the Underwriting
Agreement).
(k) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is
a party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(l) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole.
(m) Xxxx Xxxxxx Xxxxxxxx Inc. is registered as a broker-
dealer and investment adviser with the Commission, is registered with
the Commodity Futures Trading Commission as a futures commission
merchant and is a member of the New York Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc.
(n) Xxxxxx Xxxxxxx & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered
with the Commodity Futures Trading Commission as a futures commission
merchant and is a member of the New York Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc.
(o) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus provides for
sales of Offered Warrants pursuant to Delayed Delivery Contracts, the
Company hereby authorizes the Underwriters to solicit offers to purchase
Contract Warrants on the terms and subject to the conditions set forth in
the Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery
Contracts may be entered into only with institutional investors approved by
the Company of the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the accounts of the
Underwriters the commission set forth in the Underwriting Agreement in
respect of the Contract Warrants. The Underwriters will not have any
responsibility in respect of the validity or the performance of any Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate amount of Offered Warrants to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Warrants; and such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Warrants set
forth opposite such Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be applied
in other proportions and so advises the Company; provided, however, that the
total amount of Offered Warrants to be purchased by all Underwriters shall be
the aggregate amount set forth above, less the aggregate amount of Contract
Warrants.
3. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Warrants as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of
the public offering of the Underwriters' Warrants are set forth in the
Prospectus.
4. Purchase and Delivery. Except as otherwise provided in this
Section 4, payment for the Underwriters' Warrants shall be made in immediately
available funds at the time and place set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Underwriters' Warrants, registered in such names and in
such denominations as the Manager shall request in writing not less than one
full business day prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Underwriters' Warrants to the
Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Warrants in
bearer form shall be effected only by delivery of a single permanent global
Warrant (the "Global Warrant") evidencing the Offered Warrants in bearer form,
in each case to a common depositary for Xxxxxx Guaranty Trust Company of New
York, Brussels office, as operator of the Euro-clear System ("Euro-clear"),
and for Cedel Bank, Societe Anonyme ("Cedel") for credit to the respective
accounts at Euro-clear or Cedel of each Underwriter or to such other accounts
as such Underwriter may direct. Any Global Warrant shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the
Company in the net amount due to the Company for such Global Warrant, as the
case may be, by the method and in the form set forth herein. Underwriters'
Warrants in bearer form shall be evidenced only by a Global Warrant until
their expiration.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto effected subsequent to the execution and delivery of the
Underwriting Agreement), that, in the judgment of the Manager, is
material and adverse and that makes it, in the judgment of the
Manager, impracticable to market the Offered Warrants on the terms
and in the manner contemplated in the Prospectus.
(b) the Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a) (i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date
an opinion of Xxxxx & Xxxx LLP, counsel to the Company, or of other
counsel satisfactory to the Manager and who may be an officer of the
Company, dated the Closing Date, to the effect set forth in Exhibit A.
(d) The Manager shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the
Underwriters, dated the Closing Date, to the effect set forth in Exhibit
B.
(e) The Manager shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, special United States tax counsel
for the Company, confirming the accuracy on the Closing Date of the
opinion of such counsel set forth under the caption "Certain United
States Federal Income Tax Considerations" in the Prospectus Supplement.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent auditors, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a conformed
copy of the Registration Statement (including exhibits and all
amendments thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto)
and, during the period mentioned in paragraph (c) below, as many copies
of the Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto or to the Registration Statement
as the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Warrants, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects.
(c) If, during such period after the first date of the
public offering of the Offered Warrants as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered
to a purchaser, not misleading, or if in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense,
to the Underwriters and to the dealers (whose names and addresses the
Manager will furnish to the Company) to which Offered Warrants may have
been sold by the Manager on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the
Prospectus, satisfactory in all respects to the Manager, so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances existing when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus, as so amended
or supplemented, will comply with law and to cause such amendments or
supplements to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Warrants for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to maintain such qualifications
for as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the
Company's first full fiscal quarter next following the date of the
Underwriting Agreement that satisfies the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby and
in all other cases shall be made available not later than 45 days after
the close of the period covered thereby.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing Date,
not to offer, sell, contract to sell or otherwise dispose of any
warrants of the Company substantially similar to the Offered Warrants
(other than the Offered Warrants), without the prior written consent of
the Manager; provided that Call Warrants and Put Warrants shall not be
deemed to be similar for purposes of this paragraph.
(g) Whether or not any sale of Offered Warrants is
consummated, to pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Offered Warrants, (iii) the fees and disbursements of
the Company's counsel and accountants and of the Warrant Agent and its
counsel, (iv) the qualification of the Offered Warrants under securities
or Blue Sky laws in accordance with the provisions of Section 6(d),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda, (v) the
printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments
thereto and of the Prospectus and any amendments or supplements thereto,
(vi) the printing and delivery to the Underwriters of copies of any Blue
Sky or Legal Investment Memoranda, (vii) any fees charged by rating
agencies for the rating of the Offered Warrants, (viii) any expenses
incurred by the Company in connection with a "road show" presentation to
potential investors, (ix) all document production charges of counsel to
the Underwriters (but not including their fees for professional services
in connection with the preparation of this Agreement) and (x) any filing
fees in connection with any review of the offering of the Offered
Warrants by the National Association of Securities Dealers, Inc.
(h) To use its best efforts to accomplish and maintain the
listing of the Warrants on the exchange specified in the Underwriting
Agreement.
7. Covenants of the Underwriters. Each of the several
Underwriters represents to and agrees with the Company that:
(a) it has complied and will comply with all applicable
provisions of the laws of each jurisdiction in which the Warrants are
being offered with respect to anything done by it in relation to the
Warrants in, from or otherwise involving such jurisdictions.
(b) it will comply with or observe any other restrictions
or limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Warrants may be
offered, sold, resold or delivered.
8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or allegedly untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
allegedly untrue statement or omission based upon such Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered Warrants, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law to have been delivered, at or prior to the
written confirmation of the sale of the Offered Warrants to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information relating
to such Underwriter furnished to the Company by such Underwriter in writing
through the Manager expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to the second preceding paragraph, and by the Company, in the case
of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
To the extent the indemnification provided for in the first or
second paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Underwriters from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and of the Underwriters
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriters in connection with the offering of the Offered Warrants shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Offered Warrants (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Offered Warrants. The relative fault of the Company and of the Underwriters
shall be determined by reference to, among other things, whether the untrue or
allegedly untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Warrants underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or allegedly untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the respective principal amounts of Offered Warrants purchased
by each of such Underwriters and not joint. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
9. Termination. This Agreement shall be subject to
termination in the Manager's absolute discretion, by notice given by the
Manager to the Company, if (a) after the execution and delivery of the
Underwriting Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of
Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of
Trade or the stock exchange to which the Offered Warrants relate, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by
either Federal or New York State authorities, (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse or (v) a general moratorium in foreign
exchange trading or a moratorium in trading in the U.S. dollar or in the
currency of the country in which the stock exchange to which the Offered
Warrants relate is located by major international banks or persons shall
have been declared, and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to
market the Offered Warrants on the terms and in the manner contemplated in
the Prospectus.
10. Defaulting Underwriters. If on the Closing Date or the
Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Offered Warrants that it has
or they have agreed to purchase on such date, and the aggregate amount of
Offered Warrants which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Offered Warrants to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
amount of Firm Offered Warrants set forth opposite their respective names
in the Underwriting Agreement bears to the aggregate amount of Firm Offered
Warrants set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Warrants which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the amount of Offered Warrants that any
Underwriter has agreed to purchase pursuant to the Underwriting Agreement
be increased pursuant to this Section 10 by an amount in excess of one-
ninth of such amount of Offered Warrants without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Firm Offered Warrants and the aggregate
amount of Firm Offered Warrants with respect to which such default occurs
is more than one-tenth of the aggregate amount of Firm Offered Warrants to
be purchased on such date, and arrangements satisfactory to the Manager and
the Company for the purchase of such Firm Offered Warrants are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In
any such case either the Manager or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be
effected. If on the Option Closing Date any Underwriter or Underwriters
shall fail or refuse to purchase Additional Offered Warrants and the
aggregate amount of Additional Offered Warrants with respect to which such
default occurs is more than one-tenth of the aggregate amount of Additional
Offered Warrants to be purchased on such date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation
hereunder to purchase Additional Offered Warrants or (ii) purchase not less
than the number of Additional Offered Warrants that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of the
Offered Warrants.
11. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties
and other statements of the Company, its officers and the Underwriters set
forth in this Agreement will remain in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by
or on behalf of the Company, its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Warrants.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers, directors and controlling persons referred to in Section 8,
and no other person will have any right or obligation hereunder.
13. Counterparts. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
EXHIBIT A
Opinion of Company Counsel
The opinion of Xxxxx & Xxxx LLP, counsel to the Company or of
other counsel satisfactory to the Manager and who may be an officer of the
Company, to be delivered pursuant to Section 5(c) of the Underwriting
Agreement shall be to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(ii) each of Xxxx Xxxxxx Xxxxxxxx, Inc., Greenwood Trust
Company, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Xxxxxxx
International Incorporated (the "Material Subsidiaries") has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(iii) each of the Company and its Material Subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain or file
would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(iv) the Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as the enforceability thereof (a) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (b) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(v) the Offered Warrants have been duly authorized and,
when executed and countersigned in accordance with the provisions of
the Warrant Agreement and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement or by institutional investors in accordance with the terms
of the Delayed Delivery Contracts, if any, will be entitled to the
benefits of the Warrant Agreement and will be valid and binding
obligations of the Company, enforceable in accordance with their
terms except as the enforceability thereof (a) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (b) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(vi) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company enforceable in accordance with
their respective terms except as the enforceability thereof (a) may
be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (b) is subject to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Warrant Agreement, the Offered Warrants and any
Delayed Delivery Contracts, will not contravene any provision of
applicable law or the restated certificate of incorporation or by-
laws of the Company or any agreement or other instrument binding upon
the Company or any of its consolidated subsidiaries that is material
to the Company and its consolidated subsidiaries, taken as a whole,
or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any consolidated subsidiary, and no consent,
approval or authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under the Underwriting Agreement, the
Warrant Agreement, the Offered Warrants or any Delayed Delivery
Contract, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale
of the Offered Warrants;
(ix) the statements (1) in the Prospectus, as amended or
supplemented, if applicable, under the captions "Description of the
Warrants", "Underwriters" and "Plan of Distribution", (2) in the
Registration Statement under Item 15, (3) in "Item 3 - Legal
Proceedings" of the most recent annual reports on Form 10-K
incorporated by reference in the Prospectus and (4) in "Item 1 -
Legal Proceedings" of Part II of the quarterly reports on Form 10-Q,
if any, filed since such annual reports and incorporated by reference
in the Prospectus, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize
the matters referred to therein;
(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 a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement
that are not described, filed or incorporated by reference as
required; and
(xi) such counsel (1) is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (except for financial statements and
schedules included therein as to which such counsel need not express
any opinion) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no reason to
believe that (except for financial statements and schedules as to
which such counsel need not express any belief) any part of the
Registration Statement when such part became effective contained, and
as of the date such opinion is delivered contains any untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as amended or supplemented, if
applicable (except for financial statements and schedules included
therein as to which such counsel need not express any opinion),
comply as to form in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder
and (4) has no reason to believe that (except for financial
statements and schedules as to which such counsel need not express
any belief) the Prospectus, as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
With respect to paragraph (xi) above, if such opinion is given
by counsel who is also an officer of the Company, such counsel may state that
his or her opinion and belief are based upon his or her participation, or the
participation of someone under his or her supervision, in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified. With respect to paragraph (xi) above, if
Xxxxx & Xxxx LLP are giving such opinion, Xxxxx & Wood LLP may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus (but not including documents
incorporated therein by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but are
without independent check or verification, except as specified.
EXHIBIT B
Opinion of Xxxxx Xxxx & Xxxxxxxx
Counsel for the Underwriters
The opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms
except as the enforceability thereof (a) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (b) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
(ii) the Offered Warrants have been duly authorized and,
when executed and countersigned in accordance with the provisions of
the Warrant Agreement and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement or by institutional investors in accordance with the terms
of the Delayed Delivery Contracts, if any, will be entitled to the
benefits of the Warrant Agreement and will be valid and binding
obligations of the Company in each case enforceable in accordance
with their respective terms except as the enforceability thereof (a)
may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors'
rights generally and (b) is subject to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(iv) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, enforceable in accordance with
their respective terms except as the enforceability thereof (a) may
be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (b) is subject to general principles of equity,
regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(v) the statements in the Prospectus as amended or
supplemented, if applicable, under "Description of Warrants,"
"Underwriters" and "Plan of Distribution," insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein; and
(vi) such counsel (1) has no reason to believe that (except
for financial statements and schedules as to which such counsel need
not express any belief) any part of the Registration Statement when
such part became effective contained, and as of the date such opinion
is delivered, contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(2) is of the opinion that the Registration Statement and Prospectus,
as amended or supplemented, if applicable (except for financial
statements and schedules included therein as to which such counsel
need not express any opinion), comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (3) has no reason to
believe that (except for financial statements and schedules as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
With respect to clause (vi) above, such counsel may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and the Prospectus and any amendments or
supplements thereto (but not including documents incorporated by reference)
and review and discussion of the contents thereof (including documents
incorporated by reference) but are without independent check or verification,
except as specified.
SCHEDULE I
DELAYED DELIVERY CONTRACT
___________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxx
Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a Delaware corporation (the
"Company"), and the Company agrees to sell to the undersigned the Company's
warrants described in Schedule A annexed hereto (the "Warrants"), offered
by the Company's Prospectus dated ____________, 19_ and Prospectus
Supplement dated ____________, 19_, receipt of copies of which are hereby
acknowledged, at a purchase price stated in Schedule A and on the further
terms and conditions set forth in this agreement. The undersigned does not
contemplate selling Warrants prior to making payment therefor.
The undersigned will purchase from the Company _____
Warrants on the delivery dates set forth in Schedule A. Each such date on
which Warrants are to be purchased hereunder is hereinafter referred to as
a "Delivery Date."
Payment for the Warrants which the undersigned has agreed to
purchase on each Delivery Date shall be made in immediately available funds
at the office of ____________________________, New York, N.Y., at 10:00 a.m.
(New York time) on the Delivery Date, upon delivery to the undersigned of
the Warrants to be purchased by the undersigned on the Delivery Date, 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 full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Warrants on the Delivery Date shall be subject to the
conditions that (1) the purchase of Warrants to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Warrants as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Warrants by
any purchaser under any other Delayed Delivery Contract shall not relieve
the undersigned of its obligations under this agreement.
This agreement 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.
If this agreement 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 at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
_________________________________
(Purchaser)
By: _____________________________
Name:
Title:
_________________________________
(Address)
Accepted:
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By _______________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
---------------- ---------------------- ----------------
---------------- ---------------------- ----------------
---------------- ---------------------- ----------------
SCHEDULE A
Warrants:
Number of Warrants to be Purchased:
Purchase Price:
Delivery Dates:
