EXHIBIT 1.1
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XXXXXXXX FINANCIAL INC.
(a Delaware corporation)
$[____________] [TITLE OF DEBT SECURITIES]
UNDERWRITING AGREEMENT
[DATE]
[NAMES OF REPRESENTATIVES]
for themselves and as Representatives for the Underwriters
named in Schedule A, attached hereto (the "Representatives")
[ADDRESS OF REPRESENTATIVES]
Ladies and Gentlemen:
Xxxxxxxx Financial Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several underwriters named in Schedule A
attached hereto (collectively, the "Underwriters"), subject to the terms and
conditions set forth herein, an aggregate principal amount of $[___________]
[TITLE OF DEBT SECURITIES] of the Company (the "Securities") to be issued under
an indenture dated as of [DATE] (the "Indenture") between the Company and The
Chase Manhattan Bank, as trustee (the "Trustee"). Subject to the terms and
conditions set forth herein, the Underwriters agree to purchase from the
Company, severally and not jointly, the respective amounts of Securities set
forth in Schedule A opposite their respective names at the purchase price set
forth herein.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-
[______]) relating to shares of common stock, par value $0.01 per share (the
"Common Stock"), shares of preferred stock and debt securities of the Company.
Such registration statement has been declared effective by the Commission and
the Indenture has been qualified under the Trust Indenture Act of 1939 (the
"1939 Act"). Such registration statement and the prospectus constituting a part
thereof, including all documents incorporated therein by reference, as from time
to time amended or supplemented pursuant to the Securities Exchange Act of 1934
(the "1934 Act"), the Securities Act of 1933 (the "1933 Act"), or otherwise, are
collectively referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that any supplement to the
Prospectus shall be deemed to have supplemented the Prospectus only with respect
to the offering of securities to which such supplement relates.
SECTION 1. Representations and Warranties by the Company. The
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Company represents and warrants to the Underwriters as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the date hereof, complied
in all material respects with the requirements of the 1933 Act, the rules
and regulations of the
Commission thereunder (the "Regulations"), and the 1939 Act. The
Registration Statement and the Prospectus, at the time the Registration
Statement became effective and as of the date hereof, do not contain, and
as of the Closing Time (as hereinafter defined) will not contain, any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the representations and warranties
in this subsection shall not apply to (i) statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus or (ii) that part of the Registration
Statement that shall constitute the Statement of Eligibility and
Qualification under the 1939 Act (Form T-1) of the Trustee under the
Indenture.
(b) The financial statements and the supporting schedules included in
the Registration Statement and Prospectus present fairly the financial
position of the Company and its subsidiaries on a consolidated basis, as of
the dates indicated, and the respective results of operations for the
periods specified, in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved.
(c) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder, and,
when read together and with the other information in the Prospectus, at the
time the Registration Statement became effective and at the time any
amendments thereto become effective or hereafter during the period
specified in Section 3(b), did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated in or contemplated by the Registration Statement and Prospectus,
there has not been any material adverse change in the financial condition
of the Company and its subsidiaries considered as one enterprise, or in the
results of operations or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business.
(e) 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
power and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement.
(f) The execution and delivery of this Agreement and the Indenture,
and the consummation of the transactions contemplated herein and therein,
have been duly authorized by all necessary corporate action and will not
result in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of
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the Company, pursuant to any indenture, loan agreement, contract or other
agreement or instrument to which the Company is a party or by which the
Company may be bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or, to the best of its
knowledge, any order, rule or regulation applicable to the Company of any
court or of any federal, state or other regulatory authority or other
governmental body having jurisdiction over the Company.
(g) The Securities have been duly authorized for issuance and sale
pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the provisions of the
Indenture, against payment of the consideration therefor in accordance with
this Agreement, the Securities will be valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting enforcement of creditors' rights or by
general equity principles and will be entitled to the benefits of the
Indenture, and the Securities and the Indenture conform in all material
respects to all statements relating thereto contained in the Prospectus.
(h) If the Securities are convertible into shares of Common Stock, the
shares of the Common Stock issuable upon conversion of the Securities have
been duly authorized and reserved for issuance upon such conversion by all
necessary corporate action and, when issued and delivered in accordance
with the provisions of this Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such shares of Common Stock upon
such conversion will not be subject to preemptive rights.
(i) PricewaterhouseCoopers LLP are independent certified public
accountants as required by the 1933 Act and the Regulations.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with an
offering of the Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter participating in
such offering.
SECTION 2. Purchase and Sale; Closing.
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(a) On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions herein set
forth, the Company agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, the
principal amount of Securities set forth in Schedule A hereto opposite to its
name at a purchase price equal to [___]% of the aggregate principal amount of
the Securities.
(b) Payment of the purchase price for, and delivery of, any Securities
to be purchased by the Underwriters shall be made at the office of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at such other place as
shall be agreed upon by the Representatives and the Company, at 10:00 a.m., New
York City time, on [DATE], or such other
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date and time as the Company and the Underwriters may agree in upon in writing.
Such time and date of payment and delivery are herein referred to as the
"Closing Time." Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to the Underwriters of the Securities purchased by the Underwriters.
The Securities shall be in such denominations and registered in such names as
the Representatives may request in writing at least two business days prior to
the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with
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the Underwriters as follows:
(a) The Company will prepare a Prospectus Supplement relating to the
Securities setting forth the names of the Underwriters, the principal
amount of Securities to be issued, the price at which the Securities are to
be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, and such
other information as the Representatives of the Underwriters and the
Company may deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 of the
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus and such Prospectus Supplement (excluding
schedules, exhibits and all documents incorporated or deemed to be
incorporated by reference in the Prospectus, unless requested by the
Representatives in writing) as the Representatives shall reasonably
request.
(b) If, at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities, any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for the Company, to
further amend or supplement the Prospectus so that the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in
the light of circumstances existing at the time it is delivered to a
purchaser or if it shall be necessary, in the opinion of either such
counsel, at any such time to amend or supplement the Registration Statement
or the Prospectus to comply with the requirements of the 1933 Act or the
Regulations, the Company will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to the
1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply
with such requirements; provided that, notwithstanding the provisions of
Section 5 hereof, the Underwriters shall pay or cause to be paid all fees,
expenses and disbursements relating to any such amendments or supplements
if such amendments or supplements are dated or filed with the Commission
after 9 months from the date hereof.
(c) The Company will make generally available to its security holders
earnings statements (which need not be audited) satisfying the provisions
of Section 11(a) of the 1933 Act and Rule 158 thereunder no later than 45
days after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) commencing on the first
day of the first fiscal quarter of the Company commencing
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after the "effective date of the Registration Statement" (as defined in
Rule 158), which statements shall cover the said 12-month periods.
(d) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Company will give
the Representatives notice of its intention to file any amendment to the
Registration Statement, or any amendment or supplement to the Prospectus
(only insofar as such amendment or supplement to the Prospectus relates to
the Securities to be issued and sold pursuant to the terms and conditions
hereof), whether pursuant to the 1934 Act, the 1933 Act or otherwise (other
than the filing of any document required to be filed under the 1934 Act
which, upon filing, is deemed to be incorporated by reference into the
Registration Statement or Prospectus), will furnish the Representative with
copies of any such amendment or supplement or other documents proposed to
be filed within a reasonable time in advance of filing, and will not file
any such amendment or supplement or other documents in a form to which the
Representatives or counsel for the Underwriters shall reasonably object.
(e) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Company will
notify the Representatives promptly, and confirm such notice in writing, of
(i) the effectiveness of any amendment to the Registration Statement, (ii)
the filing of any amendment or supplement to the Prospectus (other than the
filing of any document required to be filed under the 1934 Act which, upon
filing, is deemed to be incorporated by reference into the Registration
Statement or Prospectus), (iii) the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any amendment or supplement to the Prospectus (only insofar as such
comments relate to any amendment or supplement to the Prospectus relating
to the Securities to be issued and sold pursuant to the terms and
conditions hereof), (iv) any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
or for additional information (only insofar as such requests relate to any
amendment or supplement to the Prospectus relating to the Securities to be
issued and sold pursuant to the terms and conditions hereof), and (v) the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company will use reasonable efforts to prevent the issuance
of any order suspending the effectiveness of the Registration Statement
during such periods when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, and, if any stop
order is issued, to use reasonable efforts to obtain the withdrawal of such
stop order at the earliest possible moment.
(f) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, the Company will
deliver to the Representatives as many conformed copies of the registration
statement as originally filed and of each amendment thereto, excluding
schedules, exhibits and all documents incorporated or deemed to be
incorporated in the Prospectus by reference (unless so requested by the
Representatives in writing), as the Representatives may reasonably request.
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(g) The Company will endeavor in good faith to qualify the Securities
for offering and sale under the applicable securities laws of such
jurisdictions as the Representatives shall reasonably request; provided,
however, that the Company shall not be obligated to file any general
consent to service or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not now so subject or
qualified. The Company will maintain such qualifications in effect for as
long as may be required for the distribution of the Securities.
(h) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company
will file all documents required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act
within the time periods required by the 1934 Act and the regulations
thereunder.
(i) During the period beginning the date hereof and continuing to and
including the Closing Time, the Company will not, without the
Representative's prior consent, offer to sell, or enter into any agreement
to sell, any new issue of debt securities of the Company (including
additional Securities) with a maturity of more than one year, and which are
substantially similar to such Securities.
SECTION 4. Conditions of Underwriters' Obligations. The several
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obligations of the Underwriters to purchase Securities pursuant to the terms
hereof are subject to the accuracy of the representations and warranties on the
part of the Company herein contained, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of all of its covenants and other
obligations set forth herein and to the following further conditions:
(a) At the Closing Time (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) the
rating assigned by Xxxxx'x Investors Service, Inc. and Standard & Poor's
Corporation to any long-term debt securities of the Company shall not have
been lowered since the execution of this Agreement and (iii) there shall
not have come to the Representatives' attention any facts that would cause
the Representatives to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to a purchaser of the Securities, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing
at such time, not misleading.
(b) At the Closing Time, the Representatives shall have received:
(1) The written opinion, dated as of the Closing Time, of counsel
for the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware.
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(ii) This Agreement has been duly authorized, executed
and delivered by the Company.
(iii) The Indenture pursuant to which the Securities are
being issued has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and binding
obligation of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law) and except as enforcement thereof is
subject, in the case of Securities denominated in a foreign
currency or currency unit, to provisions of law that require that
a judgment for money damages rendered by a court in the United
States be expressed only in United States dollars.
(iv) The Securities have been duly authorized by the
Company and, when executed and authenticated as specified in the
Indenture and delivered against payment pursuant to this
Agreement, the Securities will be valid and binding obligations
of the Company entitled to the benefits of the Indenture, and
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and except as
enforcement thereof is subject, in the case of Securities being
denominated in a foreign currency or currency unit, to provisions
of law that require that a judgment for money damages rendered by
a court in the United States be expressed only in United States
dollars.
(v) The Securities and the Indenture conform in all
material respects as to legal matters to the descriptions thereof
in the Prospectus.
(vi) The Indenture has been duly qualified under the 0000
Xxx.
(vii) If the Securities are convertible into shares of
Common Stock, the shares of Common Stock issuable upon conversion
thereof have been duly authorized and reserved for issuance upon
such conversion by all necessary corporate action and when issued
and delivered in accordance with the provisions of this Agreement
relating thereto, will be validly issued, fully paid and non-
assessable, and the issuance of such shares upon such conversion
will not be subject to preemptive rights.
(viii) The Registration Statement is effective under the
1933 Act and, to the best of their knowledge and information, no
stop order
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suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(ix) The Registration Statement and Prospectus, and each
amendment or supplement thereto (except for the financial
statements and other financial data included therein or omitted
therefrom and the Statement of Eligibility and Qualification of
the Trustee on Form T-1, as to which such counsel need express no
opinion), as of their respective effective or issue dates, appear
on their face to have been appropriately responsive in all
material respects to the requirements of the 1933 Act, the 1939
Act and the Regulations.
(x) The documents incorporated by reference in the
Prospectus (except for the financial statements and other
financial data included therein or omitted therefrom, as to which
such counsel need express no opinion), as of the dates they were
filed with the Commission, appear on their face to have been
appropriately responsive in all material respects to the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder.
(xi) The execution and delivery of this Agreement, the
fulfillment of the terms herein set forth and the consummation of
the transactions herein contemplated will not conflict with the
charter or by-laws of the Company.
Such opinion shall also state that such counsel has not verified,
and is not passing upon and does not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, other than those
mentioned in Section 4(b)(1)(v) hereof. Such counsel has, however,
generally reviewed and discussed such statements with certain officers
of the Company and its auditors. In the course of such review and
discussion, no facts have come to such counsel's attention that lead
such counsel to believe (i) that the Registration Statement or any
amendment thereto (except for the financial statements and other
financial data included therein or omitted therefrom and the Statement
of Eligibility and Qualification of the Trustee on Form T-1, as to
which such counsel need not comment), at the time the Registration
Statement or any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (ii) that the Prospectus or any amendment or
supplement thereto (except for the financial statements and other
financial data included therein or omitted therefrom, as to which such
counsel need not comment), at the time the Prospectus (together with
any such amendment or supplement relating to the Securities) was
issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary
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in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(2) The written opinion, dated as of the Closing Time, of the
General Counsel of the Company to the effect that (i) the Company is
duly qualified to transact business and is in good standing in the
states in which such qualification is required, and (ii) the execution
and delivery of this Agreement and the Indenture, the fulfillment of
the terms herein and therein set forth and the consummation of the
transactions herein and therein contemplated will not conflict with or
constitute a breach of, or default under, the charter or by-laws of
the Company or any agreement, indenture or other instrument known to
such counsel of which the Company or any of its subsidiaries is a
party or by which it or any of them is bound, or any law,
administrative regulation or administrative or court order known to
him to be applicable to the Company.
(3) The written opinion, dated as of the applicable Closing Time,
of [____________], counsel for the Underwriters, with respect to the
matters set forth in Section 4(b)(1)(i) to Section 4(b)(1)(vi),
inclusive, Section 4(b)(1)(viii), Section 4(b)(1)(ix) and Section
4(b)(1)(xi) of this Agreement.
(c) At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the financial
condition of the Company and its subsidiaries considered as one enterprise,
or in the results of operations or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company,
dated as of the Closing Time, to the effect that (i) there has been no such
material adverse change and (ii) the other representations and warranties
of the Company contained in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of the Closing
Time.
(d) The Representatives shall have received from
PricewaterhouseCoopers LLP or other independent certified public
accountants acceptable to the Representatives a letter, dated the date
hereof, in form and substance satisfactory to the Representatives
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(e) The Representatives shall have received from
PricewaterhouseCoopers LLP or other independent certified public
accountants acceptable to the Representatives a letter, dated the Closing
Time, reconfirming or updating the letter required by Section 4(d) above to
the extent that may be reasonably requested by the Representative.
If any condition specified in this Section 4 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to
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the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
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incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto and the printing of this Agreement, (ii) the preparation, issuance and
delivery of the Securities to the Underwriters, (iii) the fees and disbursements
of the Company's counsel and accountants, (iv) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(g), including filing fees and the fee and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any blue sky surveys and legal investment surveys, (v) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of the Indenture and any blue sky surveys and legal
investment surveys, (vii) the fees, if any, of rating agencies and (viii) the
fees and expenses, if any, incurred in connection with the listing of the
Securities on any national securities exchange.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 4 or Section 9(i), the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. Indemnification. (a) The Company agrees to indemnify
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and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), or any omission or alleged omission therefrom, of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom, of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto), or was made in reliance upon the Form T-1
of Trustee under the Indenture;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever 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
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omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
In no case shall the Company be liable under this indemnity agreement
with respect to any claim made against any Underwriter or any such controlling
person unless the Company shall be notified in writing of the nature of the
claim within a reasonable time after the assertion thereof, but failure so to
notify the Company shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. The Company shall be
entitled to participate at its own expense in the defense, or if it so elects
within a reasonable time after receipt of such notice, to assume the defense for
any suit brought to enforce any such claim, but if the Company elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Underwriter or Underwriters or controlling person or
persons, defendant or defendants in any suit so brought. In the event that the
Company elects to assume the defense of any such suit and retains such counsel,
the Underwriter or Underwriters or controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel thereafter retained by them. In the event that the parties to any such
action (including impleaded parties) include both the Company and one or more
Underwriters and any such Underwriter shall have been advised by counsel chosen
by it and satisfactory to the Company that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company, the Company shall not have the right to assume the
defense of such action on behalf of such Underwriter and will reimburse such
Underwriter and any person controlling such Underwriter as aforesaid for the
reasonable fees and expenses of any counsel retained by them, it being
understood that the Company shall not, in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
Underwriters and controlling persons, which firm shall be designated in writing
by the Representative. The Company agrees to notify the Representative within a
reasonable time of the assertion of any claim against it, any of its officers or
directors or any person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act, in connection with the sale of the Securities.
(b) Each Underwriter severally agrees that it will indemnify and hold
harmless the Company and each of its officers who signs the Registration
Statement and each of its directors and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company, but only with respect to statements or
omissions made in the Prospectus (or any amendment or supplement thereto) or the
Registration Statement (or any amendment thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). In case any
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action shall be brought against the Company or any person so indemnified based
on the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) and in respect of which indemnity may be
sought against any Underwriter, such Underwriter shall have the rights and
duties given to the Company, and the Company and each person so indemnified
shall have the rights and duties given to the Underwriters, by the provisions of
subsection (a) of this Section.
SECTION 7. Contribution. If the indemnification provisions
------------
provided in Section 6 above should under applicable law be unenforceable in
respect of any losses, liabilities, claims, damages or expenses (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, liabilities, claims, damages or expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the Securities
and also the relative fault of the Company and the Underwriters in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same proportion as the
total net proceeds from the offering (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 Prospectus, bear to the aggregate
public offering price of the Securities. The relative fault shall be determined
by reference to, among other things, whether the indemnified party failed to
give the notice required under Section 6 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 relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission of the Company and the Underwriters, directly
or through the Representative of the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 7. The amount paid or payable by an
indemnified party as a result of the losses, liabilities, claims, damages or
expenses (or actions in respect thereof) referred to above in this Section 7
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. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public 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 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this Section 7 to contribute are several in proportion to their respective
underwriting obligations and not joint.
The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and
12
conditions, to each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act; and the obligations of the Underwriters
under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer who signs the Registration Statement and each
director of the Company and to each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act.
SECTION 8. Representations, Warranties and Agreements to Survive
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Delivery. All representations, warranties and agreements contained in this
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Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Securities to the Underwriters.
SECTION 9. Termination. The Representative may terminate this
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Agreement, immediately upon notice to the Company, at any time prior to the
Closing Time (i) if there has been, since the date hereof or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the financial condition of the Company and its
subsidiaries considered as one enterprise, or in the results of operations or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representative,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in the Common Stock of the Company has been
suspended by the Commission or a national securities exchange or if trading on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal or New York authorities.
In the event of any such termination, (x) the covenants set forth in Section 3
with respect to any offering of Securities shall remain in effect so long as any
Underwriter retains beneficial ownership of any such Securities purchased from
the Company pursuant to the terms of this Agreement and (y) the covenant set
forth in Section 3(c), the provisions of Section 5, the indemnity agreement set
forth in Section 6, the contribution provisions set forth in Section 7 and the
provisions of Section 8 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters
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participating in an offering of Securities shall fail at the Closing Time to
purchase the Securities which it or they are obligated to purchase hereunder
(the "Defaulted Securities"), then the Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the non-
defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, during such 24 hours the
Representative shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to
13
terms of this Agreement, the non-defaulting Underwriters hereof shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations thereunder bear to the underwriting
obligations of all such non-defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to the terms of this Agreement, this Agreement shall terminate
without any liability on the part of any non-defaulting Underwriters or the
Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either the Representative or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven (7) days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative; notices to the Company
shall be directed to it at:
Xxxxxxxx Financial Inc.
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Vice President - Legal and Corporate Secretary
SECTION 12. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon the Company and any Underwriter who becomes a party hereto,
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
SECTION 14. Counterparts. This Agreement may be executed any
------------
number of counterparts and, if executed in more than one counterpart, the
executed counterparts shall constitute a single instrument.
14
Very truly yours,
-----------------
XXXXXXXX FINANCIAL INC.
By: ________________________
Name:
Title:
CONFIRMED AND ACCEPTED
AS OF THE DATE HEREOF:
[NAMES OF REPRESENTATIVES]
for themselves and on behalf
of the several Underwriters
named in Schedule A hereto
By: ___________________________________
Name:
Title:
15
SCHEDULE A
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Principal Amount of Securities
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Underwriters to be Purchased
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TOTAL:
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