EXHIBIT 1.2
UNDERWRITING AGREEMENT
(Preferred Stock, Depositary Shares, Common Stock)
---------- --, ----
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Corporation, a Pennsylvania corporation (the "Company"), proposes to
issue and sell the number of shares of its securities identified as Firm
Securities herein (the "Firm Securities"). The Company also proposes to issue
and sell not more than the number of shares of its securities, if any,
identified as Additional Securities herein (the "Additional Securities"), if
and to the extent that we, as Manager of this offering, shall have determined
to exercise, on behalf of the Underwriters, the right to purchase such
Additional Securities granted to the Underwriters herein. The Firm Securities
and the Additional Securities are hereinafter collectively referred to as the
"Offered Securities".
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the aggregate principal amount of the
Firm Securities set forth below opposite their names at a purchase price of
$[ , per Firm Security (the "Purchase Price").
Number of
Firm Securities
Underwriter To Be Purchased
[Insert syndicate list]
--------------
Total...... ==============
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the Underwriters the
Additional Securities, and the Underwriters shall have a one-time right to
purchase, severally and not jointly, up to the number of Additional Securities
set forth below at the Purchase Price [plus accrued dividends, if any, from [ ]
to the date of payment and delivery]. Additional Securities may be purchased as
provided herein solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Securities. If any Additional
Securities are to be purchased, each Underwriter agrees, severally and not
jointly, to purchase the number of Additional Securities (subject to such
adjustments to eliminate fractional Offered Securities as you may determine)
that bears the same proportion to the total number of Additional Securities to
be purchased as the amount of Firm Securities set forth opposite the name of
such Underwriter above bears to the total amount of Firm Securities.
The Underwriters will pay for the Firm Securities upon delivery
thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters and the Company. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date".
Payment for any Additional Securities shall be made at the offices
referred to above at 10:00 A.M. (New York time), on such date (which may be the
same as the Closing Date but shall in no event be earlier than the Closing Date
nor later than ten business days after the giving of the notice hereinafter
referred to) as shall be designated in a written notice from us to the Company
of our determination, on behalf of the Underwriters, to purchase an amount,
specified in said notice, of Additional Securities, as shall be designated in
writing by us. The time and date of such payment are hereinafter referred to as
the "Option Closing Date". The notice of the determination to exercise the
option to purchase Additional Securities and of the Option Closing Date may be
given at any time within 30 days after the date of the Underwriting Agreement.
The Offered Securities shall have the terms set forth in the
Prospectus dated [June __], 1999, and the Prospectus Supplement dated , ,
including the following:
Terms of Offered Securities
Securities:
Aggregate Number of Firm Securities:
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Aggregate Number of Additional Securities:
Redemption Provisions:
Conversion Provisions:
Exchange Provisions:
Lock-Up Securities:
Lock-Up Period:
Additional Provisions:
[If depositary shares are offered, list beneficial ownership of
preferred stock that each depositary share represents and list Deposit
Agreement.]
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Comcast Corporation Underwriting Agreement Standard Provisions
(Preferred Stock, Depositary Shares, Common Stock) dated [June __], 1999 (the
"Standard Provisions"), a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [_________________________]
By:__________________________________
Name:
Title:
Accepted:
COMCAST CORPORATION
By:__________________________
Name:
Title:
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COMCAST CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK, DEPOSITARY SHARES, COMMON STOCK)
[June __], 1999
From time to time, Comcast Corporation, a Pennsylvania corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company proposes to issue from time to time (a) its preferred
stock, without par value (the "Preferred Stock"), (b) depositary shares
representing its Preferred Stock (the "Depositary Shares") and (c) its Class A
common stock, $1.00 par value (the "Class A Common Stock") and its Class A
Special common stock, $1.00 par value (the "Class A Special Common Stock", and
together with the Class A Common Stock, the "Common Stock").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Preferred Stock, Depositary Shares and Common Stock (collectively, the
"Securities") and has filed with, or transmitted for filing to, or shall
promptly after the date of the Underwriting Agreement file with or transmit for
filing to, the Commission a prospectus supplement (the "Prospectus Supplement")
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), specifically relating to the Securities offered pursuant to
this Agreement (the "Offered Securities"). The term Registration Statement
means the registration statement as amended to the date of the Underwriting
Agreement including any additional registration statement filed by the Company
pursuant to Rule 462(b). The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the Basic
Prospectus together with the Prospectus Supplement. The term preliminary
prospectus means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic
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Prospectus. As used herein, the terms "Basic Prospectus", "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement", "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
The Company hereby agrees that, without the prior written consent of
the Manager, it will not offer, sell, contract to sell or grant any option to
purchase or otherwise dispose of any shares of the Lock-Up Securities, or any
securities convertible into or exchangeable for Lock-Up Securities, for the
Lock-Up Period, other than (i) the Offered Securities to be sold hereunder,
(ii) any Lock-Up Securities sold upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof or (iii) any
Lock-Up Securities issued pursuant to any stock option or similar employee
compensation plan in effect on the date hereof.
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as of the date of the Underwriting
Agreement that (i) each document filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder and (ii) the Registration Statement
and Prospectus comply in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder and do 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, except that the foregoing representations and warranties do not
apply to statements or omissions in the Registration Statement or the
Prospectus or any amendment or supplement thereto based upon information
furnished to the Company in writing by any Underwriter through the Manager
expressly for use therein.
2. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made to the Company in
Federal or other funds immediately available in New York City at the time and
place set forth in the Underwriting Agreement, upon delivery to the Manager for
the respective accounts of the several Underwriters of the Offered Securities.
Certificates representing the Offered Securities shall be in definitive form
and registered in such names and in such
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denominations as the Manager shall request in writing not less than one full
business day prior to the date of delivery, with any transfer taxes payable in
connection with the transfer of the Offered Securities to the Underwriters duly
paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission,
and there shall have been no material adverse change in the
condition, business or operations of the Company and its
subsidiaries, as a whole, from that set forth in the Prospectus; and
the Manager shall have received, on the Closing Date, a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the foregoing effect. Such certificate will also provide
that the representations and warranties of the Company contained
herein are true and correct as of the Closing Date. The officer
making such certificate may rely upon the best of his knowledge as to
proceedings threatened.
(b) The Manager shall have received on the Closing Date an
opinion of Xxxxxx X. Block, Esquire, Senior Deputy General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation subsisting under the laws of the
Commonwealth of Pennsylvania and is duly qualified to
transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification
(except where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
(ii) each of Comcast Cable Communications, Inc. and QVC,
Inc. (such corporations are together the "specified
subsidiaries" of the Company and each is a "specified
subsidiary" of the Company) has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification
(except where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
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(iii) the Offered Securities have been duly authorized,
and when executed and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable,
(iv) this Agreement has been duly authorized, executed
and delivered by the Company,
(v) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution, delivery and performance of this Agreement by the
Company and the issuance and sale of the Offered Securities
by the Company will not contravene any provision of
applicable law of the United States (except with respect to
laws relating specifically to the cable communications
industry, as to which such counsel is not called upon to
express any opinion), Pennsylvania, or, to the best knowledge
of such counsel, of any other state or jurisdiction of the
United States or of any foreign jurisdiction (in which
foreign jurisdiction the Company or any specified subsidiary
does business which is material to the Company and its
subsidiaries, as a whole), or the articles of incorporation
or by-laws of the Company or, to the best knowledge of such
counsel, any agreement or other instrument binding upon the
Company, and, except for the orders of the Commission making
the Registration Statement effective (which have been
obtained) and such permits or similar authorizations required
under the securities or Blue Sky laws of certain states or
foreign jurisdictions (as to which such counsel is not called
upon to express any opinion), no consent, approval or
authorization of any governmental body or agency of the
United States (except with respect to consents, approvals and
authorizations relating specifically to the cable
communications industry, as to which such counsel is not
called upon to express any opinion), Pennsylvania, or, to the
best knowledge of such counsel, of any other state or
jurisdiction of the United States or of any foreign
jurisdiction is required for the performance of this
Agreement by the Company, or the issuance and sale of the
Offered Securities by the Company,
(vi) subject to such qualification as may be set forth in
the Prospectus, the Company and its subsidiaries have, and
are in material compliance with, such franchises, and to the
best knowledge of such counsel after reasonable
investigation, such licenses and authorizations, as are
necessary to own their cable communications properties and to
conduct their cable communications business in the manner
described in the Prospectus, except where the failure to
have, or comply with, such franchises, licenses and
authorizations would not have a material adverse
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effect on the business or financial condition of the Company
and its subsidiaries, as a whole, and such franchises,
licenses and authorizations contain no materially burdensome
restrictions not adequately described in the Prospectus,
which restrictions would have a material adverse effect on
the business or financial condition of the Company and its
subsidiaries, as a whole,
(vii) the statements (A) in Item 3 of the Company's most
recent Annual Report on Form 10-K incorporated by reference
in the Prospectus, (B) in Part II, Item 1 under the caption
"Legal Proceedings" of the Company's most recent Quarterly
Report on Form 10-Q incorporated by reference in the
Prospectus and (C) in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings,
(viii) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries
is subject which is required to be described in the
Registration Statement or the Prospectus and is not so
described or of any contract or other document which is
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required,
(ix) the security into which the Offered Securities are
convertible, initially reserved for issuance upon conversion
of the Offered Securities (the "Underlying Securities") have
been duly authorized and reserved for issuance, and
(x) when the Underlying Securities are issued upon
conversion of the Offered Securities in accordance with the
terms of the Offered Securities, such Underlying Securities
will be validly issued, fully paid and non-assessable and
will not be subject to any preemptive or other right to
subscribe for or purchase such Underlying Securities.
Such counsel shall also state that no facts have come to his attention
that lead him to believe (1) that the Registration Statement or any amendments
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom, as to
which such counsel is not called upon to express any belief), on the date on
which it became effective or the date of filing of the most recent subsequent
Annual Report on Form 10-K, contained an untrue statement of a
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material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; (2) that the
Prospectus, as amended or supplemented, if applicable (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), at the date of the Underwriting Agreement or at
the Closing Date, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading; or (3) that the documents incorporated by reference in
the Prospectus (except for the financial statements and other financial or
statistical data included or incorporated by reference therein or omitted
therefrom, as to which such counsel is not called upon to express any belief),
as of the dates they were filed with the Commission, 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 under
which they are made, not misleading.
With respect to the preceding paragraph, such counsel may state that
his opinion and belief is based upon his participation in the preparation of
the Registration Statement, Prospectus (as amended or supplemented) and the
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
In expressing his opinion as to questions of the law of jurisdictions
other than the Commonwealth of Pennsylvania and the United States, such counsel
may rely to the extent reasonable on such counsel as may be reasonably
acceptable to counsel to the Underwriters. In addition, such counsel may
reasonably rely as to questions of fact on certificates of responsible officers
of the Company.
(c) The Manager shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the Company,
dated the Closing Date, to the effect that:
(i) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution, delivery and performance of this Agreement by the
Company and the issuance and sale of the Offered Securities
by the Company will not contravene any provision of
applicable law of the United States (except with respect to
laws relating specifically to the cable communications
industry, as to which such counsel is not called upon to
express any opinion), or New York and, except for the orders
of the Commission making the Registration Statement effective
(which have been obtained) and such permits or similar
authorizations required under the securities or Blue Sky laws
of certain states or foreign jurisdictions (as to which such
counsel is
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not called upon to express any opinion), no consent, approval
or authorization of any governmental body or agency of the
United States (except with respect to consents, approvals and
authorizations relating specifically to the cable
communications industry, as to which such counsel is not
called upon to express any opinion), or New York is required
for the performance of this Agreement by the Company, or the
issuance and sale of the Offered Securities by the Company,
and
(ii) the statements in the Prospectus Supplement under
"Description of [the Offered Securities]", "Certain U.S. Tax
Considerations" and "Underwriting" and in the Basic
Prospectus under "Description of [the Offered Securities]",
"United States Taxation" and "Plan of Distribution", insofar
as such statements constitute a summary of the legal matters
or documents referred to therein, fairly present the
information called for with respect to such legal matters and
documents.
Such counsel shall also state that no facts have come to the attention
of such counsel that lead them to believe (1) that the Registration Statement
and the Prospectus and any supplements or amendments thereto or the documents
incorporated by reference in the Registration Statement and Prospectus (except
for financial statements and other financial or statistical data included or
incorporated by reference therein, as to which such counsel is not called upon
to express any belief) did not comply as to form in all material respects with
the Securities Act and the rules and regulations of the Commission thereunder;
(2) that the Registration Statement or any amendment thereto (except for the
financial statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such
counsel is not called upon to express any belief) at the date of the
Underwriting Agreement 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 (3) that the Prospectus, as
amended or supplemented, if applicable (except for the financial statements and
other financial or statistical data included or incorporated by reference
therein or omitted therefrom, as to which such counsel is not called upon to
express any belief), at the date hereof or at the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, Xxxxx Xxxx & Xxxxxxxx may
state that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified.
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(d) The Manager shall have received on the Closing Date an
opinion of Dow, Xxxxxx and Xxxxxxxxx, PLLC special counsel for the
Company, dated the Closing Date, to the effect that:
(i) no approval of the Federal Communications Commission
(the "FCC") is required in connection with the issuance and
sale of the Offered Securities,
(ii) the execution and delivery of this Agreement, by the
Company, the fulfillment of the terms set forth herein by the
Company and the consummation of the transactions contemplated
hereby by the Company do not violate any statute, regulation
or other law of the United States relating specifically to
the cable communications industry (except as otherwise
explicitly set forth in the Prospectus) or, to the knowledge
of such counsel, any order, judgment or decree of any court
or governmental body of the United States relating
specifically to the cable communications industry and
applicable to the Company or any subsidiary, and which
violation would have a material adverse effect on the
business or financial condition of the Company and its
subsidiaries, as a whole,
(iii) the statements in the Company's most recent Annual
Report on Form 10-K incorporated by reference in the
Registration Statement and Prospectus [identify sections
describing cable regulatory matters] as updated by the
Company's most recent Quarterly Reports on Form 10-Q
incorporated in the Registration Statement and Prospectus and
as updated by the Prospectus, insofar as they are, or refer
to, statements of federal law or legal conclusions, have been
reviewed by such counsel and present in all material respects
the information called for with respect to such statements of
federal law or legal conclusions, and
(iv) such counsel does not know of any proceeding pending
before the FCC to which the Company or any of its
subsidiaries is a party or involving the cable communications
properties, licenses or authorizations of the Company and its
subsidiaries, or of any cable communications law or
regulation relevant thereto required to be described in the
Registration Statement or Prospectus pursuant to Regulation
S-K promulgated under the Securities Act, which is not
described as required.
(e) The Manager shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxx & Xxxxxxx (a partnership including a
professional organization),
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counsel for the Underwriters, dated the Closing Date, covering the
matters requested by and in form and substance reasonably satisfactory
to the Manager.
(f) The Manager shall have received on the Closing Date, a letter
dated the Closing Date, in each case in form and substance
satisfactory to the Manager, from Deloitte & Touche LLP, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference in the
Registration Statement and the Prospectus.
(g) The Manager shall have received on the date hereof or on the
Closing Date, as applicable, such additional documents as the Manager
shall have reasonably requested to confirm compliance with the
conditions to Closing listed herein.
The several obligations of the Underwriters to purchase Additional
Securities hereunder are subject to the delivery to the Manager on the Option
Closing Date of such opinions, certificates and documents as are contemplated
for the Closing of the Firm Securities in this Section 4.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish to the Manager, without charge, a copy of the
Registration Statement and two signed copies of any post-effective
amendment thereto specifically relating to the Offered Securities
(including exhibits thereto and documents incorporated therein by
reference) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated therein by
reference and any supplements and amendments thereto as the Manager
may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish the Manager a copy of each such proposed
amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities during which in the opinion of
counsel to the Manager the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time, not misleading,
forthwith to prepare and furnish, at its expense, to the Underwriters
and to the dealers (whose
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names and addresses the Manager will furnish to the Company) to which
Offered Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers on request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances existing at the time, be misleading.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such U.S. jurisdictions
as the Manager shall reasonably request.
(e) To make generally available to the Company's security holders
as soon as practicable an earnings statement covering the twelve month
period beginning on the first day of the first fiscal quarter
commencing after the date hereof, which shall satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (which may be accomplished by making
generally available the Company's financial statements in the manner
provided for by Rule 158 of the Securities Act).
(f) To comply with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with Cuba.
6. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls each
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Offered Securities, or any person
controlling any such Underwriter, if a copy of the Prospectus (as then amended
or supplemented) was not sent or given by or on behalf of such Underwriter to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented but without reference to
documents incorporated by reference therein) would have cured the defect giving
rise to such loss, claim, damage or liability.
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Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person
(hereinafter called the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Company and such directors, officers and
controlling persons of the Company, such firm shall be designated in writing by
the Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify, to the extent provided in the two immediately
preceding paragraphs, the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional
11
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the second or third paragraph
of this Section 6 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities for which indemnification is provided
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and of the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Company and the Underwriters shall be determined by reference to, among
other things, 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 by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6, the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriters have 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
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The indemnity and contribution agreement contained in this Section 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Underwriters or any person controlling the Underwriters or by or on
behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Manager by notice given by the Manager to the
Company, if (a) after the execution and delivery of the Underwriting Agreement
and prior to the Closing Date [or the Option Closing Date, as the case may be,]
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, the New York Stock Exchange, the American Stock Exchange,
or the National Association of Securities Dealers, Inc., (ii) trading of any
securities of the Company shall have been suspended on the Nasdaq National
Market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
The Company will pay and bear all costs and expenses incident to the
performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereto to the Underwriters, (b) the
preparation, printing and distribution of this Agreement and Blue Sky
Memorandum, (c) the delivery of the Offered Securities to the Underwriters, (d)
the reasonable fees and disbursements of the Company's counsel and accountants,
(e) the qualification of the Offered Securities under the applicable state
securities or Blue Sky laws in accordance with Section 5, including filing fees
and reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with any Blue Sky survey and any legal
investment survey, (f) all fees payable to the National Association of
Securities Dealers, Inc. in connection with the review, if any, of the offering
of the Securities and (g) any fees charged by rating agencies for the rating of
the Offered Securities. Except as specifically provided elsewhere herein, the
Underwriters will pay all of their own costs and expenses, including without
limitation the fees and expenses of their counsel and the expenses of selling
presentations.
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If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement or the offering contemplated
hereunder. This provision shall survive the termination or cancellation of this
Agreement.
8. Defaulting Underwriters. If on the Closing Date [or the Option
Closing Date, as the case may be,] any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it has or they have agreed
to purchase on such date, and the aggregate amount of Offered Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate amount of the Offered
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the amount of Offered Securities
set forth opposite their respective names bears to the aggregate amount of
Offered Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 8 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If on the Closing
Date [or the Option Closing Date, as the case may be,] any Underwriter or
Underwriters shall fail or refuse to purchase Offered Securities and the
aggregate amount of Offered Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Offered Securities to
be purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Offered Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
either the Manager or the Company shall have the right to postpone the Closing
Date [or the Option Closing Date, as the case may be,] but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
9. Counterparts. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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10. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
