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EXHIBIT 1.2
XXXXXXX AND BROAD HOME CORPORATION
(a Delaware corporation)
Equity Securities
UNDERWRITING AGREEMENT
_________, 199_
Ladies and Gentlemen:
Xxxxxxx and Broad Home Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time (i) shares of common
stock of the Company (the "Common Shares"), (ii) shares of a series of
preferred stock of the Company (the "Preferred Shares") which may be
convertible into Common Shares or (iii) warrants to purchase Common Shares or
Preferred Shares (the "Warrants") which may be sold separately or together with
Common Shares. The Common Shares, the Preferred Shares and the Warrants are
hereinafter referred to as the "Securities". The Securities are registered
under the registration statement referred to below.
Particular issuances or series of the Securities will be sold pursuant
to a Terms Agreement referred to in Section 2 in the form of Annex A attached
hereto, for resale in accordance with the terms of offering determined at the
time of sale. Under such Terms Agreement, subject to the terms and conditions
hereof, the Company will agree to issue and sell, and the firm or firms
specified therein (the "Underwriters") will agree to purchase, the amount of
Securities specified therein (the "Firm Securities"). In such Terms Agreement,
the Company also may grant to such Underwriters, subject to the terms and
conditions set forth therein, an option to purchase additional Securities in an
amount not to exceed the amount specified in such Terms Agreement (such
additional Securities are hereinafter referred to as the "Option Securities").
The Firm Securities and the Option Securities are hereinafter collectively
referred to as the "Offered Securities".
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The representative or representatives of the Underwriters, if any,
specified in the Terms Agreement referred to in Section 2 are hereinafter
referred to as the "Representative(s)"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representative(s)", as used in this Agreement shall mean the Underwriters.
Preferred Shares issued pursuant to the Terms Agreement referred to in
Section 2 will be issued in accordance with a Certificate of Designations as
specified in such Terms Agreement (the "Certificate of Designations").
Warrants issued pursuant to the Terms Agreement referred to in Section 2 will
be issued under a Warrant Agreement (the "Warrant Agreement") between a bank or
trust company selected by the Company as specified in such Terms Agreement (the
"Warrant Agent").
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as
follows:
(i) A registration statement (No. 333-_____), including a
prospectus, relating to the Securities has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 2, is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 2
to reflect the terms of the Offered Securities and the terms of
offering thereof, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "1933 Act") (the "1933 Act Regulations"), including all
material incorporated by reference therein, is hereinafter referred to
as the "Prospectus". At the time the Registration Statement became
effective, the Registration Statement complied in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did 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 not misleading, and on the
date of each Terms Agreement referred to in Section 2, the
Registration Statement and the Prospectus will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations, and neither of such documents will include an 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 (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading; provided, however, that
the representations and warranties in this subsection (i) shall not
apply to 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
Representative(s) expressly for use in the Registration Statement or
the Prospectus.
(ii) Ernst & Young LLP, whose report is incorporated by
reference into the Registration Statement, are independent public
accountants with respect to the Company and with respect to the
Company's subsidiaries, in each case as required by the 1933 Act and
the 1933 Act Regulations.
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(iii) The financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations
of the Company and its consolidated subsidiaries for the periods
specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied
on a consistent basis; the supporting schedules included or
incorporated by reference in the Registration Statement present fairly
the information required to be stated therein; and the Company's
ratios of earnings to fixed charges and earnings to combined fixed
charges and preferred stock dividends (including the amounts the
ratios would have been were interest on the outstanding collateralized
mortgage obligations of the Company's wholly owned limited purpose
financing subsidiaries included in such ratios' calculation) included
in the Prospectus under the caption "Consolidated Ratios of Earnings
to Fixed Charges and of Earnings to Combined Fixed Charges and
Preferred Stock Dividends" in Exhibit 12 to the Registration Statement
have been calculated in compliance with Item 503(d) of Regulation S-K
of the Commission.
(iv) Since the date of the latest audited financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries (which term, as used in
this Agreement, includes without limitation consolidated joint
ventures and partnerships (collectively, the "Joint Ventures") in
which the Company is a participant) considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular quarterly
dividends in customary amounts per share on the Common Stock of the
Company, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(vi) Each Significant Subsidiary (as defined below) has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its organization, has
power and authority to own, lease and operate its properties 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 such qualification is required, whether by
reason of
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the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned (except for directors qualifying shares and a nominal number of
shares held by affiliated parties) by the Company, directly or through
one of its other subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and
all of the outstanding equity interests in each Significant Subsidiary
which is a Joint Venture have been duly authorized (if applicable) and
validly issued, are fully paid and non-assessable and are owned by the
Company (except to the extent that a minority interest in the Joint
Ventures is reflected in the Company's consolidated financial
statements included or incorporated by reference in the Prospectus),
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. For
purposes of this Agreement, "Significant Subsidiaries" means the
subsidiaries and Joint Ventures identified on Annex B hereto which
subsidiaries and Joint Ventures (A) on the basis of the Company's most
recent audited financial statements, represented 90% or more of the
total assets of the Company and its subsidiaries and (B) include all
"significant subsidiaries" of the Company, as such term is defined in
Rule 405 of the 1933 Act Regulations.
(vii) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus (except for
subsequent issuances, if any, pursuant to reservations, agreements,
employee benefit plans or the exercise of convertible securities
referred to or incorporated by reference in the Prospectus); the
shares of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable;
and the Common Stock conforms to the statements relating thereto
referred to or incorporated by reference in the Prospectus.
(viii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which any of the
property or assets of the Company or any of the Significant
Subsidiaries is subject, which default or violation would have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and the execution,
delivery and performance of this Agreement and the Terms Agreement,
and the consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder
and thereunder, have been duly authorized by all necessary corporate
action and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of the Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of the Significant Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of the Significant
Subsidiaries is subject, except for a conflict, breach, default, lien,
charge or encumbrance which would not have a material adverse effect
on the condition, financial or
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otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, nor
will such action result in any violation of the provisions of the
charter, by-laws or other corresponding organizational documents of
the Company or any of the Significant Subsidiaries or any applicable
law, administrative regulation or administrative or court order or
decree.
(ix) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its Subsidiaries, which is required to
be disclosed in the Registration Statement (other than as disclosed
therein), or which is not so disclosed and (net of reserves and
insurance) the Company believes might result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially
and adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement;
all pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in or incorporated by
reference in the Registration Statement, including ordinary routine
litigation incidental to the business, are, considered in the
aggregate and net of reserves and insurance, not material to the
Company and its subsidiaries considered as one enterprise; and there
are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to, or
incorporated by reference in, the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed or
incorporated by reference.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Offered Securities hereunder or the
consummation by the Company of any of the other transactions
contemplated hereby, except such as may be required and have been
obtained under the 1933 Act and the 1933 Act Regulations for the
Offered Securities and such as may be required under state securities
laws.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
1934 Act Regulations, and, when read together with the other
information in the Prospectus, at the respective times the
Registration Statement became effective, at the date of the Terms
Agreement and at the Closing Date 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 were made,
not misleading.
(xiv) There are no holders of securities of the Company
with currently exercisable
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registration rights who have any securities registered as part of the
Registration Statement or included in the offering contemplated by
this Agreement.
(xv) The Company and each of the Significant Subsidiaries
have good and marketable title to all of their respective properties,
in each case free and clear of all liens, encumbrances and defects,
except (i) customary liens and encumbrances arising in the ordinary
course of the Company's construction and development business and the
financing thereof, (ii) as stated or incorporated by reference in the
Prospectus or (iii) such as do not materially affect the value of such
properties in the aggregate to the Company and its subsidiaries
considered as one enterprise and do not materially interfere with the
use made and proposed to be made of such properties.
(xvi) The Company and its Significant Subsidiaries possess
such certificates, authorities and permits issued by the appropriate
state, federal and foreign regulatory agencies and bodies necessary to
conduct all material aspects of the business now operated by them, and
neither the Company nor any of its Significant Subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise.
(xvii) No default or event of default with respect to any
Indebtedness (as such term is defined in the Prospectus) of the Company
or any of its Significant Subsidiaries entitling, or which, with
notice or lapse of time or both, would entitle, the holders thereof to
accelerate the maturity thereof exists or will exist as a result of
the execution and delivery of this Agreement, the issuance and sale of
the Offered Securities or the consummation of the transactions
contemplated hereby or thereby.
(xviii) The Company and each of the Significant Subsidiaries
have filed all tax returns required to be filed, which returns, as
amended, are complete and correct in all material respects, and
neither the Company nor any Significant Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns
or any assessments with respect to said returns which would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xix) The Company and its Significant Subsidiaries maintain
a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance
with management's general or specific authorization; (B) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (C) access to assets is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
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(b) Any certificate signed by any officer of the Company and
delivered to the Representative(s) or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
SECTION 2. Purchase and Offering of Offered Securities. The obligation
of the Company to issue and sell any Firm Securities, the obligation of the
Underwriters to purchase the Firm Securities, and, if applicable, the Company's
granting to the Underwriters of an option to purchase any Option Securities,
will be set forth in a Terms Agreement (the "Terms Agreement") which shall be
in the form of an executed writing (which may be handwritten), and may be
evidenced by an exchange of telegraphic or any other rapid transmission device
designed to produce a written record of communications transmitted at the time
the Company determines to sell the Firm Securities. The Terms Agreement will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the following: the firm or firms which will
be Underwriters; the names of any Representative(s); the aggregate amount of
the Firm Securities, and, if applicable, the Option Securities; the terms of
any option granted by the Company to the Underwriters to purchase Option
Securities; the amount of Firm Securities to be purchased by each Underwriter;
the initial public offering price of the Offered Securities; the purchase price
to be paid by the Underwriters; and, if the Offered Securities are Preferred
Shares or Warrants, the terms thereof. The Terms Agreement will also specify
the place of delivery and payment for the Offered Securities and any details of
the terms of the offering that should be reflected in the prospectus supplement
relating to the offering of the Offered Securities.
The time and date of delivery and payment of the Firm Securities will
be the time and date specified in the Terms Agreement, or such other time
thereafter as the Representative(s) and the Company agree as the time for
payment and delivery of the Firm Securities (such time and date, being herein
and in the Terms Agreement referred to as the "Firm Closing Date"). The time
and date of delivery and payment of the Option Securities, if any, will be the
time and date specified by the Underwriters as provided in the Terms Agreement,
which may be the Firm Closing Date, but shall not be prior to the Firm Closing
Date (such time and date being herein and in the Terms Agreement referred to as
the "Option Closing Date"). As used herein and in the Terms Agreement, the
term "Closing Date" means, with respect to the Firm Securities, the Firm
Closing Date and, with respect to the Option Securities, the Option Closing
Date.
The obligations of the Underwriters to purchase the Offered Securities
will be several and not joint. It is understood that the Underwriters propose
to offer the Offered Securities for sale as set forth in the Prospectus. The
Offered Securities delivered to the Underwriters on the Closing Date will be in
such denominations and registered in such names as the Underwriters may
request.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter that, in connection with each offering of Offered Securities:
(a) The Company will notify the Representative(s) promptly (i) of
the effectiveness of any post-effective amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing of
the Prospectus or any amendment to the Registration Statement or amendment or
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act
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during any period when the Prospectus is required to be delivered under the
1933 Act, (iii) of the receipt of any comments or inquiries from the Commission
relating to the Registration Statement or Prospectus, (iv) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, (v) of 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 and (vi) of the issuance by any state securities commission or other
regulatory authority of any order suspending the qualification or the exemption
from qualification of the Securities or Offered Securities under state
securities or Blue Sky laws or the initiation of any proceeding for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Company will give the Representative(s) notice of its
intention to file or prepare any amendment to the Registration Statement
(including any post-effective amendment thereto) or any amendment or supplement
to the Prospectus (including any revised prospectus which the Company proposes
for use by the Underwriters in connection with the Offered Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), will furnish the Representative(s) with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Representative(s) or counsel
for the Underwriters shall reasonably object.
(c) The Company will deliver to the Representative(s) as many
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) as the Representative(s) may reasonably
request.
(d) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary,
in the opinion of counsel for the Underwriters, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the Company
will forthwith amend or supplement the Prospectus (in form and substance
satisfactory to the Representative(s) and counsel for the Underwriters) so
that, as so amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Underwriters a reasonable number of copies of such
amendment or supplement.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Offered Securities for offering and sale under the
applicable securities laws of such states and other
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jurisdictions of the United States as the Representative(s) may designate;
provided, however, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. In
each jurisdiction in which the Offered Securities have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for so long as may
be required by applicable law. The Company will promptly advise the
Representative(s) of the receipt by the Company of any notification with
respect to the suspension of qualification of the Offered Securities for sale
in any state or jurisdiction or the initiating or threatening of any proceeding
for such purpose.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 50 days after the close of
the period covered thereby (or 120 days in the case of the close of the
Company's fiscal year), an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month
period beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of the
Registration Statement.
(h) The Company will use the net proceeds received by it from the
sale of the Offered Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(i) Following the execution of the applicable Terms Agreement, the
Company will prepare, and file or transmit for filing copies of the Prospectus
with the Commission in accordance with Rule 424(b).
(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Sections 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) If and to the extent so provided in the applicable Terms
Agreement, the Company, for the period therein provided, will not, directly or
indirectly, sell, contract to sell or otherwise dispose of certain of its
securities as specified in such Terms Agreement.
(l) If and to the extent so provided in the applicable Terms
Agreement, the Company will use its reasonable best efforts to effect the
listing of the Offered Securities on the New York Stock Exchange and to cause
the Offered Securities to be registered under the 0000 Xxx.
(m) The Company will reserve and keep available at all times, free
of preemptive or other similar rights and liens and adverse claims, sufficient
shares of Common Stock to satisfy any obligations to issue shares of Common
Stock upon conversion of any Preferred Stock or exercise of any Warrants that
may be outstanding from time to time.
SECTION 4. Payment of Expenses. The Company will pay the following expenses
incident to the performance of its obligations under this Agreement: (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto; (ii) the printing or reproduction of this Agreement and
the Terms Agreement; (iii) the preparation, issuance and delivery of the
certificates
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for the Offered Securities to the Underwriters; (iv) the fees and disbursements
of the Company's counsel and accountants; (v) the qualification of the Offered
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and the legal investment survey, if any;
(vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
the preliminary prospectuses, and of the Prospectus and any amendments or
supplements thereto; (vii) the printing and delivery to the Representative(s)
of copies of the Blue Sky Survey and the legal investment survey, if any;
(viii) any fees payable in connection with the rating of the Offered
Securities; (ix) any fees payable to the National Association of Securities
Dealers, Inc.; (x) any fees payable to the Commission; and (xi) the fees and
expenses incurred in connection with the listing on the New York Stock Exchange
of the Offered Securities. The Company will not be responsible for any other
expenses, including (without limitation) the fees and disbursements of counsel
for the Underwriters (except as provided in Section 4(v) hereof).
If this Agreement is terminated by the Representative(s) in accordance
with the provisions of Section 5 or Section 9(a)(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 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Securities on the Firm Closing
Date and the Option Securities on the Option Closing Date will be subject to
the accuracy of the representations and warranties of the Company herein
contained, to the performance by the Company of its obligations hereunder, and
to the following further conditions:
(a) The Prospectus shall have been filed in accordance with the
1933 Act Regulations and Section 3(i) of this Agreement; and 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.
(b) At the Closing Date the Representative(s) shall have received:
(1) The favorable opinion, dated as of the Closing Date,
of Xxxxxx, Xxxxxx & Xxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect
(to the extent applicable to the Offered Securities) that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) If the Offered Securities are Common Shares,
the Common Shares have been duly authorized and validly issued
and, when countersigned by the transfer agent therefor, and
sold to the Underwriters against payment therefor pursuant to
this Agreement and the Terms Agreement, will be validly
issued, fully paid and non-assessable; and the issuance of
such Common Shares is not subject to the
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preemptive rights of any stockholder of the Company.
(iii) If the Offered Securities are Preferred
Shares, the Preferred Shares have been duly authorized and
validly issued and, when countersigned by the transfer agent
therefor and sold to the Underwriters against payment therefor
pursuant to this Agreement an the Terms Agreement, will be
validly issued, fully paid and non-assessable; and the
issuance of such Preferred Shares is not subject to the
preemptive rights of any stockholder of the Company.
(iv) If the Offered Securities are Preferred
Shares that are convertible into Common Shares, the Common
Shares have been duly authorized and reserved for issuance by
the Company upon conversion of the Preferred Shares, and when
so issued and countersigned by the transfer agent therefor,
will be validly issued, fully paid and non-assessable; and the
issuance of such Common Shares will not be subject to the
preemptive rights of any stockholder of the Company.
(v) If the Offered Securities are Warrants, the
Warrants have been duly authorized, executed and delivered by
the Company and, when countersigned by the Warrant Agent and
sold to the Underwriters against payment therefor pursuant to
this Agreement and the Terms Agreement, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general
equitable principles.
(vi) If the Offered Securities are Warrants, the
Warrant Agreement has been duly authorized, executed and
delivered by the Company, and the Warrant Agreement
constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights
generally or by general equitable principles.
(vii) If the Offered Securities are Warrants to
purchase Common Shares or Preferred Shares, the Common Shares
or Preferred Shares, as the case may be, have been duly
authorized and reserved for issuance by the Company upon
exercise of such Warrants, and when so issued and
countersigned by the transfer agent therefor, will be validly
issued, fully paid and non-assessable; and the issuance of
such Common Shares or Preferred Shares will not be subject to
the pre-emptive rights of any stockholder of the Company.
(viii) The Offered Securities conform in all
material respects to the description thereof contained in the
Prospectus.
(ix) The forms of certificates for the Offered
Securities conform to the requirements of the Delaware General
Corporation Law.
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(x) The information in the Prospectus relating
to the description of the capital stock of the Company and
relating to Federal income tax considerations, to the extent
that it constitutes summaries of legal matters or documents,
has been reviewed by such counsel and is correct in all
material respects.
(xi) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(xii) The Registration Statement, at the time it
became effective, and the Registration Statement and the
Prospectus at the date of the applicable Terms Agreement
(other than the financial statements and supporting schedules
included or incorporated by reference therein, as to which no
opinion need be rendered) complied and complies as to form in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(xiii) The Terms Agreement (including the provisions
of this Agreement) has been duly authorized, executed and
delivered by the Company.
In giving the opinions in paragraphs (v), (vi) and (vii), such counsel shall be
entitled to assume without any investigation that California law is the same as
New York law for all purposes relevant to the determination of the
enforceability of agreements governed by New York law.
(2) The favorable opinion, dated as of the Closing Date,
of the General Counsel or Associate Counsel of the Company, in form
and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(ii) To the best of such counsel's knowledge and
information, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(iii) Each of the Company's Significant Domestic
Subsidiaries (as defined below) has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and, to the best of such counsel's knowledge and
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information, is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not
have a material adverse effect on the Company and its
subsidiaries considered as one enterprise or on their
consolidated financial condition or earnings; to the best of
such counsel's knowledge and information, all of the issued
and outstanding capital stock of each such Significant
Domestic Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned (except
for directors qualifying shares and a nominal number of shares
held by affiliated parties) by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. As used
in this Agreement, the term "Significant Domestic
Subsidiaries" means the Significant Subsidiaries set forth in
Annex B hereto.
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus
(except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans or the
exercise of convertible securities referred to or incorporated
by reference in the Prospectus); and the shares of issued and
outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable.
(v) To the best of such counsel's knowledge and
information, there are no statutes or regulations required to
be described in the Registration Statement or the Prospectus
which are not described as required and there are no legal or
governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other
than those disclosed therein, and all pending legal or
governmental proceedings to which the Company or any
subsidiary is a party or to which any of their property is
subject which are not described in or incorporated by
reference in the Registration Statement, including ordinary
routine litigation incidental to the business, are, considered
in the aggregate and net of reserves and insurance, not
material to the Company and its subsidiaries considered as one
enterprise.
(vi) The information under "Item 1.
Business--Regulation and Environmental Matters" in the
Company's most recent Annual Report on Form 10-K incorporated
by reference in the Registration Statement and in Item 15 in
Part II of the Registration Statement, to the extent that it
constitutes matters of law, summaries of legal matters,
summaries of securities, instruments, agreements or other
documents or legal conclusions, has been reviewed by such
counsel and is correct in all material respects.
(vii) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed
or incorporated by reference as exhibits thereto other than those
described or referred to or filed as exhibits thereto, the
descriptions thereof or references thereto are correct, and, to the
best of such
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counsel's knowledge, no default exists in the due performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to or filed or
incorporated by reference, which default could have a material adverse
effect on the Company and its subsidiaries considered as one
enterprise or on their consolidated financial condition or earnings.
(viii) No authorization, approval, consent or order of any
court or governmental authority or agency is required in connection
with the sale of the Offered Securities to the Underwriters, except
such as may be required under the 1933 Act, the 1933 Act Regulations,
or state securities laws.
(ix) The issuance and delivery of the Offered Securities,
the execution and delivery of the Terms Agreement (including the
provisions of this Agreement) and the consummation of the transactions
contemplated herein and therein, will not conflict with or constitute
a breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of its Significant Subsidiaries pursuant to, to the
best of such counsel's knowledge and information, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of its Significant Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company, or any
applicable law, administrative regulation or administrative or court
decree.
(x) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the financial
statements and supporting schedules included or incorporated by
reference therein, as to which no opinion need be rendered), at the
time they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations.
In giving such opinion, as to matters governed by laws other than the law of
the States of California, the General Corporation Law of the State of Delaware
and the federal law of the United States of America, such counsel may, at such
counsel's option, either (A) assume without any investigation that the law of
the State of California (or, if appropriate, the General Corporation Law of the
State of Delaware and the federal law of the United States of America) is the
same as the law governing such other matters for all purposes relevant to such
opinion, or (B) rely on an opinion or opinions of local counsel satisfactory to
the Representative(s), so long as each such opinion shall be dated as of the
Closing Date and in form and substance reasonably satisfactory to the
Representative(s), and shall expressly permit the Underwriters to rely thereon
as if such opinion were addressed to the Underwriters.
(3) The favorable opinion, dated as of the Closing Date,
of counsel for the Underwriters, with respect to the matters set forth
in (iii) through (viii) and (xi) through (xiii) (but not with respect
to any documents incorporated by reference) of subsection (b)(1) of
this
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Section.
(4) In giving their opinions required by subsections
(b)(1), (b)(2) and (b)(3), respectively, of this Section, Xxxxxx,
Xxxxxx & Xxxxx LLP, the General Counsel or Associate Counsel of the
Company (as the case may be) and counsel for the Underwriters shall
each additionally state that nothing has come to their attention that
has led them to believe that the Registration Statement (except for
financial statements and schedules and other financial data included
therein, as to which counsel need make no statement), at the time it
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 that the
Registration Statement or the Prospectus (except for financial
statements and other financial data included therein, as to which
counsel need make no statement), at the date of the Terms Agreement,
or any such amendment or supplement, as of its date, included an
untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein (in the case of
the Prospectus, in the light of the circumstances under which they
were made) not misleading.
(b) At the Closing Date, there shall not have been, since the date
of the Terms Agreement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs 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 Representative(s) shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company, dated as
of such Closing Date, to the effect that (i) there has been no such material
adverse change; (ii) the representations and warranties in Section 1 are true
and correct with the same force and effect as though expressly made at and as
of the Closing Date; (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Date; (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best of such officer's
knowledge and information, no proceedings for that purpose have been initiated
or threatened by the Commission; and (v) the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the
Company has not been lowered and no such rating agency has publicly announced
that it has placed any debt securities of the Company on what is commonly
termed a "watch list" for a possible downgrading.
(c) At the Closing Time, the Representative(s) shall have received
from Ernst & Young LLP a letter dated such date, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and financial
information included and incorporated by reference in the Registration
Statement and the Prospectus.
(d) If the listing of the Offered Securities on the New York Stock
Exchange is required under Section 3(c) hereof and the applicable Terms
Agreement, the Offered Securities shall, at the Closing Date, have been
approved for listing on the New York Stock Exchange upon notice of issuance.
(e) At the Closing Date, counsel for the Underwriters shall have
been furnished with such
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documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Offered Securities as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Offered Securities as herein
contemplated shall be satisfactory in form and substance to the
Representative(s) and counsel for the Underwriters.
(h) In the event the Underwriters exercise their option to
purchase all or any portion of the Option Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company hereunder shall be true and correct as of
each Option Closing Date, and the Representative(s) shall have received:
(i) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief financial
or chief accounting officer of the Company confirming that the
certificate delivered at the Firm Closing Date pursuant to Section
5(c) hereof remains true as of such Option Closing Date.
(ii) The favorable opinion of Xxxxxx, Xxxxxx & Xxxxx LLP,
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, relating to the Option Secutities and otherwise
to the same effect as the opinion required by Sections 5(b)(1) and
5(b)(4) hereof.
(iii) The favorable opinion of the General Counsel or
Associate Counsel of the Company, in form and substance satisfactory
to counsel for the Underwriters, relating to the Option Securities and
otherwise to the same effect as the opinion required by Sections
5(b)(2) and 5(b)(4) hereof.
(iv) The favorable opinion of counsel for the
Underwriters, dated such Option Closing Date, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Sections 5(b)(3) and 5(b)(4) hereof.
(v) A letter from Ernst & Young LLP in form and substance
satisfactory to the Representative(s) and dated such Option Closing
Date, substantially the same in scope and substance as the letter
furnished to the Representative(s) pursuant to Section 5(c) hereof
except that the "specified date" in the letter furnished pursuant to
this Section shall be a date not more than five days prior to such
Option Closing Date.
If any condition specified in this Section shall not have been fulfilled when
and as required to be fulfilled, this Agreement may be terminated by the
Representative(s) by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof. Notwithstanding any
such termination, the provisions of Sections 4, 6, 7 and 8 shall remain in
effect.
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SECTION 6. Indemnification
(a) The Company agrees to indemnify 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, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the 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 any preliminary prospectus or 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;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements
of counsel chosen by the Representative(s)), 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;
provided, however, that (A) the foregoing indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative(s) expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or Supplement thereto); and (B)
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of the Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased Offered
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as may then be 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 such is required by law, at or
prior to the written confirmation of the sale of such Offered Securities to
such person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability or expense.
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(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representative(s) expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give written notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties 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.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount appearing on the cover page of
the Prospectus bears to the initial public offering price appearing thereon and
the Company is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section ll(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this 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
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 the Offered
Securities to the Underwriters.
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SECTION 9. Termination of Agreement.
(a) The Representative(s) may terminate this Agreement and the
applicable Terms Agreement, by notice to the Company, at any time at or prior
to the Closing Date (i) if there has been, since the date of this Agreement and
the applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; (ii) if
there has occurred any material adverse change in the financial markets in the
United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the judgment
of the Representative(s), impracticable to market the Offered Securities or to
enforce contracts for the sale of the Offered Securities; (iii) if trading in
the securities of the Company has been suspended by the Commission or a
national securities exchange, or if trading generally on 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 said
Exchange or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either federal, New York or
California authorities; or (iv) if the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the
Company shall have been lowered or if any such rating agency shall have
publicly announced that it has placed any debt securities of the Company on
what is commonly termed a "watch list" for a possible downgrading.
(b) If this Agreement and the applicable Terms Agreement are
terminated pursuant to this Section, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof. Notwithstanding any such termination, the provisions of Sections 4, 6,
7 and 8 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If any one or more
Underwriters shall fail to purchase and pay for any of the Offered Securities
agreed to be purchased by such Underwriter or Underwriters under this Agreement
and the applicable Terms Agreement and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the Representative(s) may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons (including
any of the Underwriters) but if no arrangements are made by the Closing Date
the remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Securities set forth
opposite their names in the Terms Agreement bear to the aggregate amount of
Offered Securities set opposite the names of all the remaining Underwriters)
the Offered Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event the aggregate
amount of Offered Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10 percent of the aggregate amount
of Offered Securities set forth in such Terms Agreement, the Representative(s)
may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons (including any of the Underwriters) but if
no arrangements are made by the Closing Date the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Offered Securities, and if
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such non-defaulting Underwriters do not purchase all the Offered Securities,
this Agreement will terminate without liability to any non-defaulting
Underwriter or the Company. In the event of a default by any Underwriter as
set forth in this Section 10, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Representative(s) shall determine in
order that the required changes in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
SECTION 11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative(s) at ________________, attention of
___________________; notices to the Company shall be directed to it at 00000
Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxxxx X.
Xxxx, Senior Vice President and Chief Financial Officer.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement shall
inure to the benefit of and be binding upon the Underwriters and the Company
and their respective successors. Nothing expressed or mentioned in this
Agreement or such Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company 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 the applicable Terms Agreement or any provision
herein or therein contained. This Agreement and such Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the Underwriters and the Company 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 Offered Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Unless otherwise set forth
herein, specified times of day refer to New York City time.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
XXXXXXX AND BROAD HOME CORPORATION
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAMES OF UNDERWRITERS]
By: [Representative(s)]
By:
-------------------------------
Name:
Title:
For itself and as Representative(s) of the other
Underwriters.
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ANNEX A
XXXXXXX AND BROAD HOME CORPORATION
(a Delaware Corporation)
Equity Securities
TERMS AGREEMENT
_______, 199_
[Names and Addresses of
Representatives]
Ladies and Gentlemen:
Xxxxxxx and Broad Home Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated ________, 19__ (the "Underwriting
Agreement"), between the Company on the one hand and ___________, on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the securities specified in Schedule II hereto (the
"Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to the
Prospectus in Section 1 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus
as amended or supplemented relating to the Securities which are the subject of
the Terms Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless
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otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined. The Representatives designated to act on behalf of
each of the underwriters of Securities are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters' and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule II
hereto, the amount of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
[Subject to the terms and conditions set forth herein and in the Terms
Agreement, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase in the aggregate up to the number of Option
Securities set forth on Schedule II at the same purchase price as shall be
applicable to the Firm Securities. The Option hereby granted will expire _
days after the date hereof and may be exercised, in whole or in part at one
time, only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Firm Securities. Such
option may be exercised upon written notice by you to the Company setting forth
the number of Option Securities as to which the several Underwriters are
exercising the option and the Option Closing Date. If the option is exercised
as to all or any portion of the Option Securities, the Option Securities as to
which the option is exercised shall be purchased by each Underwriter, severally
and not jointly, in the proportion that the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I bears to the total number
of Firm Securities, subject to such adjustments as you, in your discretion,
shall make to eliminate any sales or purchases of fractional Offered
Securities. No Option Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Option Securities or any portion thereof may be
surrendered and terminated at any time before the exercise thereof upon written
notice by the Representatives to the Company.]
If the foregoing is in accordance with your understanding, please sign
and return to us ________ counterparts hereof, and upon acceptance hereof by
you, on behalf of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
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Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request.
Very truly yours,
XXXXXXX AND BROAD HOME CORPORATION
By
-------------------------------
Name:
Title:
Accepted as of the date hereof:
By:
-------------------------------
On behalf of each of the Underwriters
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SCHEDULE I
Amount of Designated
Firm Securities
Underwriter to be Purchased
----------- --------------------
----------------
Total............................ ================
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SCHEDULE II
Title of Securities:
Aggregate amount of Firm Securities:
Aggregate amount of Option Securities:
Price to Public:
$_________
Purchase Price by Underwriters:
$________
Specified funds for payment of purchase price:
If the Securities are Preferred Shares, the terms of such Preferred Shares are
as follows:
Designation:
Date of Certificate of Designations:
Dividend Rate or Amount:
Dividend Payment Dates:
Conversion Rights:
Ranking:
Liquidation Rights:
Redemption Provisions:
Sinking Fund Provisions:
Voting Right Provisions:
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If the Securities are Warrants, the terms thereof are as follows:
Warrant Agent:
Warrant Agreement:
Warrant Agreement dated as of ________, 19__, between the Company
and the Warrant Agent.
Exercise Price:
Expiration Date:
Terms of Exercise:
Firm Closing Date:
[Time and date], 19 _
Closing Location:
Black Out Period:
Names and addresses of Representatives:
Listings(s):
Address for Notices, etc.:
Other Terms:
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ANNEX B
XXXXXXX AND BROAD HOME CORPORATION
List of Significant Subsidiaries
(including Significant Foreign Subsidiaries)
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