EXHIBIT 1.2
[Form of Underwriting Agreement for
Equity Securities incorporating Xxxxxx
Xxxxxx, Inc. Underwriting Agreement
Standard Provisions dated January 31,
2003]
XXXXXX XXXXXX, INC.
UNDERWRITING AGREEMENT
FOR EQUITY SECURITIES
____________, 20__
Xxxxxx Xxxxxx, Inc.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Ladies and Gentlemen:
The underwriter or underwriters named below [, acting through
_____________, as representatives (the "Representatives"),] understand that
Xxxxxx Xxxxxx, Inc., a Kansas corporation (the "Company") proposes to issue and
sell ______ shares of common stock, par value $5.00 per share, [and the
stockholders listed on Schedule A hereto (the "Selling Stockholders") propose
severally to sell the number of shares set forth opposite their respective names
on Schedule A hereto, representing an aggregate of _______ shares of common
stock of the Company] (such ____ shares of common stock being hereinafter
referred to as the ("Purchased Securities"), registered on Registration
Statement[s] No[s]. _________. Subject to the terms and conditions set forth
herein or incorporated by reference herein and referred to below, the Company
[and each Selling Stockholder] hereby agrees [severally and not jointly] to sell
and the underwriter or underwriters named below (such underwriter or
underwriters being herein called the "Underwriters") agree to purchase,
severally and not jointly, at a purchase price equal to $_____ per share, the
respective number of Purchased Securities (rounded up or down, as determined by
the [Representatives] [the Underwriters] in their discretion, in order to avoid
fractions) obtained by multiplying the _______ shares of Purchased Securities
[or the number of shares of Purchased Securities set forth opposite the name of
such Selling Stockholder on Schedule A hereto, as the case may be,] by a
fraction the numerator of which is the number of shares of Purchased Securities
set forth below and the denominator of which is _____________.
Number of Purchased Number of Purchased
Name Securities Name Securities
---- ------------------- ---- -------------------
Total:
The Underwriters will pay for such Purchased Securities upon delivery
thereof at [state location] at 10:00 a.m. New York time on [state date].
[In addition, at the option of the Underwriters, the Company proposes to
issue and sell to the Underwriters an aggregate of not more than _____
additional shares of common stock [and certain of the Selling Stockholders
propose severally to sell to the Underwriters an aggregate of no more than
_______ additional shares of common stock] (such _______ additional shares being
hereinafter collectively referred to as the "Optional Securities").*
Upon written notice from the Underwriters given to the Company [and the
Selling Stockholders] not more than 30 days subsequent to the Closing Date, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per share to be paid for the Purchased Securities. Subject to the
foregoing, the Company [and each Selling Stockholder] agrees [, severally and
not jointly,] to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of shares specified in such notice
by a fraction the numerator of which is ____________ [in the case of the Company
and the number of shares set forth opposite the names of each Selling
Stockholder listed on Schedule A hereto under the caption "Number of Optional
Securities" in the case of the Selling Stockholders] and the denominator of
which is ___________________ (subject to adjustment by the Underwriters to
eliminate fractions). Such Optional Shares shall be purchased from the Company
[and each Selling Stockholder] for the account of each Underwriter in the same
proportion as the number of Purchased Securities set forth opposite such
Underwriter's name bears to the total number of Purchased Securities (subject to
adjustment by the Underwriters to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering overallotments made in
connection with the sale of the Purchased Securities. No Optional Securities
shall be sold or delivered unless the Purchased Securities previously have been,
or simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be surrendered and terminated at any time
upon notice by the Underwriters to the Company [and the Selling Stockholders].
The Underwriters will pay for such Optional Securities upon delivery thereof at
[state location] at 10:00 a.m. New York time on a date determined by the
Underwriters which may be the Closing Date, but shall not be later than 7 days
after written notice of election to purchase Optional Securities is given.*
The following provisions shall apply to the Purchased Securities [and the
Optional Securities]:
[Voting Rights]:
[Dividends]:
[Conversion]:
Date referred to in Section 6(1) of the Standard Provisions:
Listing:
[other terms]:
--------
* To be added only if the Underwriters are granted an option to purchase
additional shares.
All statements, requests, notices, communications and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
courier service, mail or facsimile transmission to the Underwriters in care of
____________________ at _________________, Attention: _____________________,
Facsimile No. _______________; and if to the Company shall be delivered or sent
by mail, telex or facsimile transmission to it at One Xxxxx Center, Suite 1000,
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, Attention: C. Park Shaper, Vice
President, Chief Financial Officer and Treasurer, Facsimile No. (000) 000-0000;
provided, however, that if the foregoing address does not reflect the address of
an individual Underwriter, any notice to that Underwriter pursuant to Section
7(d) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such Underwriter at its address set forth in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address will be supplied to the
Company upon request to the foregoing address]. Notice given by delivery or
courier service shall be effective upon actual receipt. Notice given by mail
shall be effective upon actual receipt or, if not actually received, the third
business day following deposit with the U.S. Post Office, first-class postage
pre-paid and return receipt requested. Notice given by facsimile transmission
shall be confirmed by appropriate answer back and shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours.
Unless otherwise provided herein, all the provisions contained in the
document entitled Xxxxxx Xxxxxx, Inc. Underwriting Agreement Standard Provisions
dated January 31, 2003, a copy of which was filed as an exhibit to Registration
Statement No. 333-______ or was filed as an Exhibit to Form 8-K and subsequently
incorporated by reference into such Registration Statement, are hereby
incorporated herein 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.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below and returning the signed copy to
us, and in addition have an authorized officer send us no later than [state date
and time] by wire, telex, facsimile transmission or other written means, the
following message:
"We have entered into the Underwriting Agreement dated [insert date]
relating to the Purchased Securities referred to therein by signing a copy
of the Underwriting Agreement and returning the same or depositing the same
in the mail to you."
Very truly yours,
[Name or names of Underwriter or Underwriters]
OR
[Name of Representative]
By:
Name:
Title:
[Acting severally on behalf of [itself]
[themselves] and the several Underwriters
named above]
Accepted:
XXXXXX XXXXXX, INC.
By:
Name:
Title:
[Name of each Selling Stockholder]
[By:
Name:
Title:]
