Exhibit 1(a)
Debt Securities
XXXXXX BROTHERS INC.
UNDERWRITING AGREEMENT
----------------------
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxxx Brothers Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to you and the other underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities") to be issued
under the indenture (the "Indenture") identified in such Schedule I, between
the Company and the trustee (the "Trustee") identified therein. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives"
shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"), and
the rules and regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file number
of which is set forth in Schedule I hereto), which has become effective,
for the registration of the Securities under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities Act
and complies in all other material respects with such rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424") a supplement to the form of prospectus
included in the registration statement relating to the initial offering
of the Securities and the plan of distribution thereof and has
previously advised you of all further
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information (financial and other) with respect to the Company to be set
forth therein. The term "Registration Statement" means the registration
statement, as amended at the date of this Agreement, including the
exhibits thereto, financial statements, and all documents incorporated
therein by reference pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), and such prospectus as then amended, including the
Incorporated Documents, is hereinafter referred to as the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), is hereinafter
called the "Final Prospectus". Any preliminary form of the Basic
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus". Any reference herein to
the Registration Statement, the Basic Prospectus, any Interim Prospectus
or the Final Prospectus shall be deemed to refer to and include the
Incorporated Documents which were filed under the Securities Exchange
Act of 1934 (the "Exchange Act"), on or before the date of this
Agreement or the issue date of the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any Incorporated Documents under the Exchange Act
after the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed with the Commission pursuant to Rule 424, when, before the Closing
Date (hereinafter defined), any amendment to the Registration Statement
becomes effective, when, before the Closing Date, any Incorporated
Document is filed with the Commission, when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, the
Registration Statement, the Final Prospectus and any such amendment or
supplement will comply in all material respects with the applicable
requirements of the Securities Act and the Rules, and the Incorporated
Documents will comply in all material respects with the requirements of
the Exchange Act or the Securities Act, as applicable, and the rules and
regulations adopted by the Commission thereunder; on the date hereof and
on the Closing Date, the Indenture shall have been qualified under and
will comply in all material respects with the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); on the date it became
effective, the Registration Statement did not, and, on the date that any
post-effective amendment to the Registration Statement becomes
effective, the Registration Statement as amended by such post-effective
amendment did not or will
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not, as the case may be, 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; on the date the
Final Prospectus is filed with the Commission pursuant to Rule 424 and
on the Closing Date, the Final Prospectus, as it may be amended or
supplemented, 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 under which they are made,
not misleading; and on said dates, the Incorporated Documents will
comply in all material respects with the applicable provisions of the
Exchange Act and rules and regulations of the Commission thereunder,
and, when read together with the Final Prospectus, or the Final
Prospectus as it may be then amended or supplemented, 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 light of the circumstances under which they are made, not
misleading; provided that the foregoing representations and warranties
in this paragraph (b) shall not apply to statements or omissions made in
reliance upon and in conformity with written information furnished to
the Company by or through the Representatives on behalf of any
Underwriter specifically for use in connection with the preparation of
the Registration Statement or the Final Prospectus, as they may be
amended or supplemented, or to any statements in or omissions from the
statement of eligibility and qualification on Form T-1 of the Trustee
under the Trust Indenture Act ("Form T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of their
respective dates, complied in all material respects with the
requirements of the Securities Act and of the Rules and did not include
any 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 under which they were made, not misleading. The
Commission has not issued an order preventing or suspending the use of
the Basic Prospectus or any Interim Prospectus.
(d) The nationally recognized firm of independent public
accountants whose report appears in the Company's most recent Annual
Report on Form 10-K, which is incorporated by reference in the Final
Prospectus, are independent public accountants as required by the
Securities Act and the Rules.
(e) In the event that a report of a nationally recognized firm of
independent public accountants regarding historical financial
information with respect to any entity acquired by the Company is
required to be incorporated by
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reference in the Final Prospectus, such independent public accountants
were independent public accountants, as required by the Securities Act
and the Rules, during the period of their engagement to examine the
financial statements being reported on and at the date of their report.
(f) The audited consolidated financial statements of the Company
in the Final Prospectus and the Registration Statement present fairly on
a consolidated basis the financial position, the results of operations,
changes in common stock and other stockholder's equity and cash flows of
the Company and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved. The unaudited consolidated financial statements of
the Company, if any, included in the Final Prospectus and the
Registration Statement and the related notes are true, complete and
correct, subject to normally recurring changes resulting from year-end
audit adjustments, and have been prepared in accordance with the
instructions to Form 10-Q.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects
the business, properties, financial condition or results of the Company
or the Company and its subsidiaries taken as whole, from the dates as of
which information is given in the Registration Statement and Final
Prospectus.
(h) The Securities conform to the description thereof contained in
the Final Prospectus, are duly and validly authorized, and, when validly
authenticated, issued and delivered in accordance with the Indenture and
sold to the Underwriters as provided in this Agreement, will be validly
issued and outstanding obligations of the Company entitled to the
benefits of the Indenture.
(i) The Company does not have any subsidiaries having business or
properties that are material to the business and properties of the
Company and its subsidiaries taken as a whole with the possible
exception of Xxxxxx Commercial Paper Inc. (the "Named Subsidiary").
Neither the Company nor the Named Subsidiary is in violation of its
corporate charter or by-laws or in default under any agreement,
indenture or instrument, the effect of which violation or default would
be material to the Company and its subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement will not
constitute a breach of, result in the creation or imposition of any
material lien, charge or encumbrance upon any of the assets of the
Company or any of its subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement, indenture or
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instrument, or result in a violation of the corporate charter or by-laws
of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company, the Named Subsidiary or their property. Except as set
forth in the Final Prospectus or as required by the Securities Act, the
Exchange Act, the Trust Indenture Act and applicable state securities
laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution,
delivery and performance of this Agreement.
(j) The Company and the Named Subsidiary have been duly organized,
are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations and are fully
registered as a broker-dealer, broker, dealer or investment advisor, as
the case may be, in each jurisdiction in which their respective
ownership of property or the conduct of their respective businesses
requires such qualification or registration and in which the failure to
qualify or register would be reasonably likely, individually or in the
aggregate, to have a material adverse effect on the business, condition
or properties of the Company and its subsidiaries taken as a whole.
Each of the Company and its Named Subsidiary holds all material
licenses, permits, and certificates from governmental authorities
necessary for the conduct of its business and owns, or possesses
adequate rights to use, all material rights necessary for the conduct of
such business and has not received any notice of conflict with the
asserted rights of others in respect thereof; and each of the Company
and its Named Subsidiary has the corporate power and authority necessary
to own or hold its properties and to conduct the businesses in which it
is engaged. Except as may be disclosed in the Registration Statement
and the Final Prospectus, all outstanding shares of capital stock of the
Named Subsidiary are owned by the Company, directly or indirectly
through subsidiaries, free and clear of any lien, pledge and encumbrance
or any claim of any third party and are duly authorized, validly issued
and outstanding, fully paid and non-assessable.
(k) Except as described in the Registration Statement and the
Final Prospectus, there is no material litigation or governmental
proceeding pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries which might reasonably be
expected to result in any material adverse change in the business,
properties, financial condition or results of operations of the Company
and its subsidiaries taken as a whole or which is required to be
disclosed in the Registration Statement and the Final Prospectus.
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(l) The certificates delivered pursuant to paragraph (f) of
Section 6 hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the
Securities were on the dates on which they were delivered, or will be on
the dates on which they are to be delivered, in all material respects
true and complete.
2. Sale and Purchase of the Securities. The Company agrees to
sell to each Underwriter, and each Underwriter, on the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein stated, agrees to purchase from the Company,
at the purchase price set forth in Schedule I hereto, the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II
hereto, except that, if Schedule I hereto provides for the sale of Securities
pursuant to delayed delivery arrangements, the respective principal amounts
of Securities to be purchased by the Underwriters shall be as set forth in
Schedule II hereto, less the respective amounts of Contract Securities
determined as provided below. Securities to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities" and Securities to
be purchased pursuant to Delayed Delivery Contracts (as hereinafter defined)
are herein called "Contract Securities". The obligations of the Underwriters
under this Agreement are several and not joint.
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities, or a portion thereof,
from the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but with such
changes therein as the Company may authorize or approve, and the Underwriters
will endeavor to make such arrangements. Delayed Delivery Contracts are to
be with institutional investors, including commercial and savings banks,
insurance companies, pension funds and educational and charitable
institutions. The Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum
principal amount set forth in Schedule I hereto and the total principal
amount of Contract Securities may not exceed the maximum principal amount set
forth in Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which bears the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name
of such Underwriter bears to the total principal amount of Securities set
forth in Schedule II hereto, except to the extent that the Representatives
determine that such reduction shall be otherwise than in such
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proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters
shall be the total principal amount set forth in Schedule II hereto less the
total principal amount of Contract Securities.
3. Delivery and Payment. Delivery by the Company of the
Underwriters' Securities to the Representatives for the respective accounts
of the several Underwriters and payment by the Underwriters therefor by
certified or official bank check or checks payable in, or by wire transfer
of, immediately available (federal) funds to or upon the order of the Company
shall take place at the office, on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Underwriters' Securities being
herein called the "Closing Date").
Concurrently with the delivery of any payment for Underwriters'
Securities as provided in this Section 3, the Company will deliver to the
Representatives for the respective accounts of the several Underwriters a
check in an amount equal to the fee set forth in Schedule I hereto with
respect to the principal amount of Securities for which Delayed Delivery
Contracts are made.
The Underwriters' Securities will be registered in such names and
in such authorized denominations as the Representatives may request no less
than two full business days in advance of the Closing Date. The Company
agrees to have the Underwriters' Securities available for inspection,
checking and packaging by the Representatives at such place as is designated
by the Representatives, not later than 1:00 p.m., New York City time, on the
business day prior to the Closing Date.
4. Offering by Underwriters. The Company hereby confirms that
the Underwriters and dealers have been authorized to distribute or cause to
be distributed any Interim Prospectus and are authorized to distribute the
Final Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the
offering of the Securities has been terminated, the Representatives will so
advise the Company.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 not later than 10:00 a.m., New York
City time, on the business day following the date of this Agreement and
will promptly advise the Representatives (A) when the Final Prospectus
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shall have been filed with the Commission pursuant to Rule 424, (B) when
any amendment to the Registration Statement relating to the Securities
shall have become effective, (C) of any request by the Commission for
any amendment of the Registration Statement, the Final Prospectus, the
Basic Prospectus or any Interim Prospectus, or for any additional
information, (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
qualification of the Indenture or the institution or threatening of any
proceedings for that purpose and (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. After the date of this
Agreement and prior to the termination of the offering of these
Securities the Company will not file any amendment of the Registration
Statement or amendment or supplement to the Final Prospectus (except an
amendment or supplement to the Final Prospectus that is deemed to be
incorporated by reference in the Final Prospectus pursuant to Item 12 of
Form S-3) without the consent of the Representatives and will use its
best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof. Prior to
receipt of the advice to be given by the Representatives pursuant to
Section 4, the Company will not file any document that would be deemed
to be incorporated by reference in the Final Prospectus pursuant to
Item 12 of Form S-3 without delivering to the Representatives a copy of
the document proposed to be so filed, such delivery to be made at least
twenty-four hours prior to such filing, and the Company will consult
with the Representatives as to any comments which the Representatives
make in a timely manner with respect to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time when a prospectus relating to the Securities
is required to be delivered under the Securities Act, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Final Prospectus to comply with the Securities
Act or the Rules, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance and will
use its best efforts to cause any amendment of the Registration
Statement containing an amended Final Prospectus to be made effective as
soon as possible.
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(c) The Company will deliver to the Representatives, without
charge, (i) signed copies of the Registration Statement relating to the
Securities and of any amendments thereto (including all exhibits filed
with, or incorporated by reference in, any such document) and (ii) as
many conformed copies of the Registration Statement and of any
amendments thereto which shall become effective on or before the Closing
Date (excluding exhibits) as the Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will deliver, without
charge to the Representatives and to Underwriters and dealers, at such
office or offices as the Representatives may designate, as many copies
of the Basic Prospectus, any Interim Prospectus and the Final Prospectus
as the Representatives may reasonably request.
(e) The Company will make generally available to its security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its
subsidiaries, covering a period of at least 12 months beginning after
the date the Final Prospectus is filed with the Commission pursuant to
Rule 424, which will satisfy the provisions of Section 11(a) of the
Securities Act.
(f) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Securities for offering and sale under the laws of such jurisdictions as
the Representatives may designate and will maintain such qualifications
in effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or unlimited service
of process in any jurisdiction where it is not now so subject.
(g) So long as any Securities are outstanding, the Company will
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the Commission.
(h) If the Company has applied for the listing of the Securities
on the New York Stock Exchange Inc. (the "NYSE"), it will use its best
efforts to cause such listing to be approved as soon as possible.
(i) For a period beginning at the time of execution of this
Agreement and ending on the later of the business day following the
Closing Date or following the date on which
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any price restrictions on the sale of the Securities are terminated,
without the prior consent of the Representatives, the Company will not
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company covered by the Registration Statement or any
other registration statement filed under the Securities Act.
(j) The Company will use its best efforts to do and perform all
things to be done and performed hereunder prior to the Closing Date and
to satisfy all conditions precedent to the delivery of the Securities to
be purchased hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof
and the Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished
to the Representatives or to Xxxxxxx Xxxxxxx & Xxxxxxxx ("Underwriters'
Counsel") pursuant to this Section 6, to the performance by the Company of
its respective obligations hereunder and to the following additional
conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 not later than 10:00 a.m., New York City time, on
the business day following the date of this Agreement or such later date
and time as shall be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the qualification
of the Indenture, shall be in effect and no proceedings for such purpose
shall be pending before or threatened by the Commission and any requests
for additional information on the part of the Commission (to be included
in the Registration Statement or the Final Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall not
have been any change or decrease specified in the letter or letters
referred to in paragraphs (g) or (h) of this Section 6 which, in the
judgment of the Representatives, makes it impracticable or inadvisable
to proceed with the offering and delivery of the Securities as
contemplated by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of the Deputy General Counsel
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for the Company, dated the day of the Closing Date, to the effect that:
(i) The Company has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of
its incorporation with all requisite corporate power and authority
to own and operate its properties and to conduct its business as
described in the Final Prospectus.
(ii) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Final
Prospectus.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance and other laws relating to or
affecting creditors' rights generally from time to time in effect
and to general principles of equity (whether considered in a
proceeding in equity or at law) and by an implied covenant of good
faith and fair dealing; and the Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture, subject to the effects
of bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance and other laws relating to or affecting creditors'
rights generally from time to time in effect and to general
principles of equity (whether considered in a proceeding in equity
or at law) and by an implied covenant of good faith.
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated in this Agreement, except for (1)
such consents, approvals, authorizations or orders as have been
obtained under the Securities Act and such as may be required under
the Exchange Act and the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Underwriters, and (2) the qualification of the Indenture under
the Trust Indenture Act, which has been obtained.
(v) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules which
have not been filed as exhibits to the Registration Statement or
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incorporated therein by reference as permitted by the Rules.
(vi) To the best of such counsel's knowledge, neither the
Company nor its Named Subsidiary is in violation of its corporate
charter or by-laws, or in default under any material agreement,
indenture or instrument known to such counsel, the effect of which
violation or default would be material to the Company and its
subsidiaries taken as a whole.
(vii) This Agreement and, to the extent applicable, the
Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company; the execution, delivery and performance
of this Agreement and any Delayed Delivery Contracts by the Company
will not constitute a breach of, or result in the creation or
imposition of any material lien, charge or encumbrance upon any of
the assets of the Company or its Named Subsidiary pursuant to the
terms of, or constitute a default under, any material agreement,
indenture or instrument known to such counsel and to which the
Company or its Named Subsidiary is a party or is bound, or result
in a violation of the corporate charter or by-laws of the Company
or its Named Subsidiary or any order, rule or regulation known to
such counsel of any court or governmental agency having
jurisdiction over the Company, its Named Subsidiary or any of their
respective properties, the effect of which would be material to the
Company and its subsidiaries taken as a whole.
(viii) The Registration Statement has become effective under
the Securities Act, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission.
(ix) The Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto (except that no
opinion need be expressed as to the financial statements or other
financial or statistical data or the Form T-1 of the Trustee under
the Trust Indenture Act included or incorporated by reference
therein) comply as to form in all material respects with the
requirements of the Securities Act and the Rules.
(x) If the Securities are to be listed on the NYSE,
authorization therefor has been given, subject to official notice
of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all
required
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supporting documents with respect to the Securities with the NYSE,
and such counsel has no reason to believe that the Securities will
not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution.
(xi) The Named Subsidiary is a duly organized and validly
existing corporation in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate its properties and to
conduct its business as described in the Final Prospectus. Each of
the Company and its Named Subsidiary is duly qualified to do
business as a foreign corporation, is in good standing and is duly
registered as a broker-dealer, broker, dealer or investment
advisor, as the case may be, in each jurisdiction in which the
nature of the business conducted by it or in which the ownership or
holding by lease of the properties owned or held by it require such
qualification or registration and where the failure to so qualify
or register would have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(xii) All the outstanding shares of capital stock of the
Company's Named Subsidiary have been duly and validly authorized
and issued and are fully paid and non-assessable and, except for
directors' qualifying shares, are owned by the Company or a
subsidiary of the Company free and clear of any claims, liens,
encumbrances and security interests.
(xiii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
or any of its subsidiaries which would affect the subject matter of
this Agreement or is required to be disclosed in the Final
Prospectus which is not disclosed and correctly summarized therein.
Such opinion shall also contain a statement that although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except as to those matters
stated in paragraph (ii) of such opinion), such counsel has no reason to
believe that (i) the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or (ii) the Final Prospectus contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that no
opinion need be
14
expressed as to the financial statements or other financial or statistical
data or the Form T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions of
local counsel satisfactory to the Representatives for matters not governed by
New York law and may rely as to matters of fact, to the extent such counsel
deems proper, upon certificates or affidavits of officers of the Company, the
Trustee and public officials. Such counsel may rely on a certificate of the
Trustee with respect to the execution of the Securities by the Company and
the authentication thereof by the Trustee.
(e) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of the Closing Date, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Executive Vice President and its Chief Financial Officer or its
Treasurer, dated the day of the Closing Date, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing
Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(ii) To the best of their knowledge after due inquiry, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or threatened.
(iii) In their opinion, (x) the Registration Statement does
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, (y) the Final
Prospectus does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and
(z) since the effective date of the Registration Statement
15
there has not occurred any event required to be set forth in an
amended or supplemented prospectus which has not been so set forth.
(g) At the time this Agreement is executed, a nationally
recognized firm of independent public accountants shall have furnished to
the Representatives a letter, dated the date of this Agreement, in form and
substance satisfactory to the Representatives, confirming that they are
independent auditors with respect to the Company within the meaning of the
Securities Act and the Rules and stating in effect that:
(i) In their opinion, the consolidated financial statements
of the Company and its subsidiaries, and the supporting schedules,
included in the Registration Statement and the Final Prospectus and
audited by them comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
Exchange Act and the related published rules and regulations
thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
included in the Registration Statement and the Final Prospectus,
carrying out certain specified procedures (but not an audit in
accordance with generally accepted auditing standards), a reading
of the minutes of the meetings of the directors of the Company and
inquiries of certain officials of the Company and its subsidiaries
who have responsibility for financial and accounting matters of the
Company and its subsidiaries, as to transactions and events
subsequent to the date of the most recent audited consolidated
financial statements included in the Registration Statement and the
Final Prospectus, nothing came to their attention that caused them
to believe that any material modifications should be made to the
unaudited consolidated financial statements of the Company and its
subsidiaries, if any, included in the Registration Statement and
the Final Prospectus for them to be in conformity with generally
accepted accounting principles; and such financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related
published rules and regulations.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus, (x) they have read
such pro forma financial statements, (y) they have made inquiries
of certain officials of the Company who have responsibility for
financial and accounting matters of the Company as to the basis for
their determination of the pro forma adjustments and whether such
pro forma financial
16
statements comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X
and (z) they have proved the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts; and as a
result thereof, nothing came to their attention that caused them to
believe that such pro forma financial statements do not so comply
with Rule 11-02 of Regulation S-X and that such pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements.
(iv) They have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived from dollar amounts, and has been
obtained from the general accounting records of the Company) set
forth in the Registration Statement, as amended, and the Final
Prospectus, as amended or supplemented, and in Exhibit 12 to the
Registration Statement, including specified information, if any,
included or incorporated from the Company's Annual Report on Form
10-K incorporated therein or specified information, if any,
included or incorporated from any of the Company's Quarterly
Reports on Form 10-Q or its Current Reports on Form 8-K
incorporated therein, agrees with the accounting records of the
Company and its subsidiaries or computations made therefrom,
excluding any questions of legal interpretation.
The letter required by this paragraph (g) may refer to a prior
letter of such nationally recognized firm of independent public accountants,
addressed to the Company, covering the above items (a "Prior Letter"). For
the purposes of the letter required by this paragraph (g), such nationally
recognized firm of independent public accountants need not perform any
procedures subsequent to the date of the Prior Letter.
(h) At the Closing Date, the nationally recognized firm of
independent public accountants referred to in paragraph (g) of this Section 6
shall have furnished to the Representatives a letter, dated the day of the
Closing Date, in form and substance satisfactory to the Representatives,
which reconfirms the matters set forth in their letter delivered pursuant to
paragraph (g) of this Section 6 and states in effect that:
(i) In their opinion, any consolidated financial statements
of the Company and its subsidiaries, and the supporting schedules,
included in the Registration Statement and the Final Prospectus and
audited by them and not covered by their letter delivered pursuant
to paragraph (g) of this Section 6 comply as to form in all
material respects with the applicable accounting
17
requirements of the Securities Act and the Exchange Act and the
related published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any,
included in the Registration Statement and the Final Prospectus and
of the latest unaudited consolidated financial statements made
available by the Company, carrying out certain specified procedures
(but not an audit in accordance with generally accepted auditing
standards), a reading of the minutes of the meetings of the
directors of the Company, and inquiries of certain officials of the
Company and its subsidiaries, who have responsibility for financial
and accounting matters of the Company and its subsidiaries, as to
transactions and events subsequent to the date of the most recent
audited consolidated financial statements included in the
Registration Statement and the Final Prospectus, nothing came to
their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the Company and
its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus and not covered by their
letter delivered pursuant to paragraph (g) of this Section 6,
for them to be in conformity with generally accepted
accounting principles; and such financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the
published instructions, rules and regulations thereunder.
(B) the unaudited capsule information of the Company and
its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus does not agree with the
amounts set forth in the unaudited consolidated financial
statements of the Company from which it was derived or was not
determined on a basis substantially consistent with that of
the corresponding financial information in the latest audited
financial statements of the Company included in the
Registration Statement and the Final Prospectus.
(C)(I) as of the latest date as of which the Company and
its subsidiaries have monthly financial statements, there was
any change in the capital stock or additional paid-in capital,
or
18
increase in long-term indebtedness of the Company and its
subsidiaries, or any decrease in retained earnings, as
compared with the amounts shown in the most recent
consolidated statement of financial condition of the Company
and its subsidiaries included in the Registration Statement
and the Final Prospectus, (II) with respect to the period
subsequent to the date of the most recent financial statements
included in the Registration Statement and the Final
Prospectus and extending through the latest date as of which
the Company and its subsidiaries have monthly financial
statements, there was a consolidated net loss or (III) with
respect to the amounts of net capital or excess net capital of
the Company determined pursuant to Commission Rule 15c3-1 and
shown in the most recent financial statement of the Company
filed pursuant to Commission Rule 17a-5, there has been any
decrease in such amounts as compared with the amounts shown in
the most recent consolidated financial statements included in
the Registration Statement and the Final Prospectus;
(D) as of a specified date not more than five business
days prior to the date of the letter, (I) there was any change
in the capital stock or additional paid-in capital, or
increase in long-term indebtedness of the Company and its
subsidiaries as compared with the amounts shown in the most
recent consolidated statement of financial condition of the
Company and its subsidiaries included in the Registration
Statement and the Final Prospectus or (II) there was any
decrease in the estimated amounts of net capital or excess net
capital of the Company determined pursuant to Commission Rule
15c3-1, as compared with the amounts shown on the most recent
financial statement of the Company filed pursuant to
Commission Rule 17a-5, such that the Company did not satisfy
the requirements of Section 5 of Schedule E to Article III of
the By-Laws of the National Association of Securities Dealers,
Inc., which permit releases of proceeds from escrow;
except in all instances for increases or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof, unless
said explanation is not deemed necessary by the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus and are not covered
by their letter
19
delivered pursuant to paragraph (g) of this Section 6, (x) they
have read such pro forma financial statements, (y) they have made
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company
as to the basis for their determination of the pro forma
adjustments and whether such pro forma financial statements comply
as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and (z) they have
proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts; and as a result thereof,
nothing came to their attention that caused them to believe that
such pro forma financial statements do not so comply with Rule 11-
02 of Regulation S-X and that such pro forma adjustments have not
been properly applied to the historical amounts in the compilation
of those statements.
(iv) To the extent not covered by their letter delivered
pursuant to paragraph (g) of this Section 6, they have performed
certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is expressed in dollars, or percentages
derived from dollar amounts, and has been obtained from the general
accounting records of the Company) set forth in the Registration
Statement, as amended, and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration Statement,
including specified information, if any, included or incorporated
from the Company's Annual Report on Form 10-K incorporated therein
or specified information, if any, included or incorporated from any
of the Company's Quarterly Reports on Form 10-Q or its Current
Reports on Form 8-K incorporated therein, agrees with the
accounting records of the Company and its subsidiaries or
computations made therefrom, excluding any questions of legal
interpretation.
(i) So long as historical financial information with respect to
any entity acquired by the Company is required to be included in the
Registration Statement or the Final Prospectus, at the Closing Date, a
nationally recognized firm of independent public accountants shall have
furnished to the Representatives a letter, dated the day of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that
they are, or were as of a stated time, independent public accountants within
the meaning of the Securities Act and the Rules and stating in effect that:
(i) in their opinion the audited consolidated financial
statements of such entity acquired by the Company, and the
supporting schedules, included in the
20
Registration Statement and Final Prospectus and examined by them,
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related
published rules and regulations of the Commission thereunder; and
(ii) they have performed certain other specified procedures
as a result of which they determined that certain historical
financial information relating to such entity acquired by the
Company as required to be reported pursuant to rules and
regulations promulgated under the Exchange Act agree with the
accounting records of such entity acquired by the Company or
computations made therefrom, excluding any questions of legal
interpretation.
(j) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt securities
by Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation.
(k) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
(l) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives or Underwriters' Counsel may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, the Closing Date by
the Representatives. Notice of such cancellation shall be given to the
Company in writing, or by telegraph confirmed in writing.
7. Expenses. (a) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
will pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including, without limiting the
generality of the foregoing, all costs, taxes and expenses incident to the
issuance, sale and delivery of the Securities to the Underwriters, all fees
and expenses of the Company's counsel and accountants, all costs and expenses
incident to the preparing, printing and filing of the Registration Statement
(including all exhibits thereto), any Interim Prospectus, the Basic
Prospectus, the Final Prospectus and any amendments thereof or supplements
21
thereto and the Indenture, and the rating of the Securities by one or more
rating agencies, all costs and expenses (including fees of Underwriters'
Counsel and their disbursements) incurred in connection with blue sky
qualifications, advising on the legality of the Securities for investment,
the filing requirements, if any, of the National Association of Securities
Dealers, Inc. in connection with its review of corporate financings, the fee
for listing the Securities on the NYSE, the fees and expenses of the Trustee
and all costs and expenses of the printing and distribution of all documents
in connection with such offering. Except as provided in this Section 7, the
Company will have no responsibility to the Underwriters for the Underwriters'
own costs and expenses, including the fees of Underwriters' Counsel and any
advertising expenses in connection with any offer the Underwriters may make.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement
herein or comply with any provision hereof, the Company will, subject to
demand by the Representatives, reimburse the Underwriters for all out-of-
pocket expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
8. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls such Underwriter
within the meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or in any amendment thereof, or in any Interim Prospectus,
the Basic Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i)
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company as herein stated by the Representatives on behalf of
any Underwriter specifically for use
22
in connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Interim Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities which are the subject thereof if such person did not
receive a copy of the Final Prospectus at or prior to the confirmation of the
sale of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Interim Prospectus was
corrected in the Final Prospectus, unless such failure to deliver the Final
Prospectus was a result of noncompliance by the Company with Section 5(d)
hereof. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that the same
was made therein in reliance upon and in conformity with written information
furnished to the Company as herein stated by the Representatives on behalf of
such Underwriter specifically for use in the preparation thereof, and agrees
to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
The statements set forth in the last paragraph of the cover page and under
the heading "Underwriting" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters
for inclusion in the Registration Statement and the Final Prospectus, as the
case may be, and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8,
23
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and either (i) the
indemnifying party or parties and the indemnified party or parties mutually
agree or (ii) representation of both the indemnifying party or parties and
the indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed counsel in connection with the
assumption of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a) representing
the indemnified parties under subparagraph (a), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a)
of this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of policy or
other similar grounds, the Company and the Underwriters shall contribute to
the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the Underwriters may
be subject in such proportion so that the Underwriters are
24
responsible for that portion represented by the percentage that the
underwriting discounts appearing on the cover page of the Final Prospectus
bear to the public offering prices appearing thereon and the Company is
responsible for the balance; provided, however, that (i) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters)
be responsible for any amount in excess of the underwriting discounts
applicable to the Securities purchased by such Underwriter hereunder and (ii)
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. For
purposes of this Section 8, each person who controls an Underwriter within
the meaning of the Securities Act shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this subparagraph (d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or
parties under this subparagraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise
than under this subparagraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for all of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the principal amount of Securities set forth opposite their names in
Schedule II hereto bear to the aggregate principal amount of Securities set
opposite the names of the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate principal amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of the
Securities, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Securities, and
if such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting Underwriters
or the Company. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
25
the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing herein
contained 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.
10. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company at or prior to delivery of and payment for all the Securities, if,
prior to such time (i) trading in securities generally on the NYSE or the
over-the-counter market shall have been suspended or limited or minimum
prices shall have been established on the NYSE or the over-the-counter
market, (ii) a banking moratorium shall have been declared either by federal
or New York State authorities, (iii) any new restriction materially affecting
the distribution of the Securities shall have become effective; trading in
any securities of the Company shall have been suspended or halted by any
national securities exchange, the National Association of Securities Dealers,
Inc. or the Commission, (iv) the United States becomes engaged in hostilities
or there is an escalation in hostilities involving the United States or there
is a declaration of a national emergency or war by the United States, or (v)
there shall have been such a material adverse change in national or
international political, financial or economic conditions, national or
international equity markets or currency exchange rates or controls as to
make it, in the judgment of the Representatives, inadvisable or impracticable
to proceed with the payment for and delivery of the Securities.
11. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) and of the
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Securities.
12. Notices. All communications hereunder will be in writing,
and, if sent to the Representatives will be mailed, delivered, telegraphed or
telexed and confirmed to them, at the address specified in Schedule I hereto;
or, if sent to the Company will be mailed, delivered, telegraphed or telexed
and confirmed to it at 3 World Financial Center, New York, New York 10285,
Attention: Chief Financial Officer.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their successors and, to the extent
and only to the extent stated in Section 8 hereof, the officers and
directors and controlling
26
persons referred to in Section 8 hereof, and except as provided in Section 8
hereof, no person other than the parties hereto and their respective
successors will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
XXXXXX BROTHERS INC.
By
------------------------------------
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXX BROTHERS INC.
By
---------------------------
Title:
Acting on behalf of the Representatives named
in Schedule I annexed hereto and the several
Underwriters named in Schedule II annexed hereto.
SCHEDULE I
Date of Underwriting Agreement: , 1995
Registration Statement No. 33-
Representative(s) and Address(es): Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Indenture, Title, Purchase Price and Description of Securities:
Indenture:
Title:
Principal amount:
Price to public:
Purchase price:
Interest rate:
Time of payment of
interest:
Maturity:
Sinking fund
provisions:
Redemption
provisions:
Closing Date, Time and Location:
Date: , 1995
Time: A.M., New York City time
Location: Xxxxxx Brothers Inc.
th floor
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Delayed Delivery
Arrangements: None
SCHEDULE II
Principal
Amount of
Securities
to be
Underwriters Purchased
------------ -----------
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . $
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxx Brothers Inc.
(the "Company"), and the Company agrees to sell to the undersigned, on
, 19 (the "Delivery Date"), $ principal amount of the Company's
% due (the "Securities") offered by the Company's
Prospectus dated , 19 , and related Prospectus Supplement dated
, 19 , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus accrued
interest or amortization of original issue discount, if any, thereon from
, 19 , to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 a.m., New York City time, on the Delivery Date to
or upon the order of the Company in New York Clearing House (next day)
funds, at your office or at such other place as shall be agreed between the
Company and the undersigned upon delivery to the undersigned of the
Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request
by written or telegraphic communication addressed to the Company not less
than five full business days prior to the Delivery Date. If no request is
received, the Securities will be registered in the name of the undersigned
and issued in a denomination equal to the aggregate principal amount of
Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to
sell and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the
failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on
the date hereof, shall not on the Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject, and (2) the
Company, on or before the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such principal amount of the Securities
as is to be sold to them pursuant to the Underwriting Agreement referred to
in the Prospectus and Prospectus Supplement mentioned above. Promptly
after completion of such sale to the Underwriters, the Company will mail or
deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the Securities,
and the obligation of the Company to cause the Securities to be sold and
2
delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this
contract is acceptable to the Company, it is required that the Company sign
the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become
a binding contract between the Company and the undersigned, as of the date
first above written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
___________________________________
(Name of Purchaser)
By_________________________________
(Signature and Title of Officer)
_________________________________
(Address)
Accepted:
Xxxxxx Brothers Inc.
By___________________________________
(Authorized Signature)
