EXHIBIT 1
Preferred Stock
XXXXXX BROTHERS HOLDINGS 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:
American Express Travel Related Services Company, Inc., a New York company
(the "Selling Stockholder"), 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 number of shares
identified in Schedule I hereto (the "Firm Stock") of the Company's Cumulative
Voting Preferred Stock, $1.00 par value per share (the "Preferred Stock"), of
Xxxxxx Brothers Holdings Inc., a Delaware corporation (the "Company"). In
addition, the Selling Stockholder proposes to grant to the Underwriters an
option to purchase up to an additional number of shares of the Preferred Stock
identified in Schedule I hereto on the terms and for the purposes set forth in
Section 3 (the "Option Stock"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "Stock". 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. This is to confirm the agreement
concerning the purchase of the Stock from the Selling Stockholder by the
Underwriters named in Schedule II hereto.
1. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter and the Selling Stockholder 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
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number of which is set forth in Schedule I hereto), which has become
effective, for the registration of the Stock 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)(i) 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 offering of the Stock
contemplated thereby and the plan of distribution thereof and has
previously advised you of all further 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"); 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 either Delivery Date
(hereinafter defined), any amendment to the Registration Statement becomes
effective, when, before either Delivery Date, any Incorporated Document is
filed with the Commission, when any supplement to the Final Prospectus is
filed with the Commission and at each Delivery Date, the Registration
Statement, the Final Prospectus and any such amendment or supplement will
comply in all material respects with the applicable requirements of
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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 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 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 each Delivery 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 or
the Selling Stockholder specifically for use in connection with the
preparation of the Registration Statement or the Final Prospectus, as they
may be amended or supplemented.
(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, any
Interim Prospectus or the Final 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
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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 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 Stock conforms to the description thereof contained in the
Final Prospectus, has been duly and validly authorized and is validly
issued, fully paid and non-assessable.
(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 exception of Xxxxxx Brothers
Inc. ("Xxxxxx") and the possible exception of Xxxxxx Commercial Paper Inc.
(the "Named Subsidiaries"). Neither the Company nor any of the Named
Subsidiaries 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
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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 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,
any of the Named Subsidiaries or their property. Except as set forth in
the Final Prospectus or as required by the Securities Act, the Exchange 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 each of the Named Subsidiaries 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 Subsidiaries 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 Subsidiaries 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 Subsidiaries 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,
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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.
(l) The certificates delivered pursuant to paragraph (g) of Section 8
hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Stock 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. Representations and Warranties of the Selling Stockholder. The
Selling Stockholder represents and warrants to each Underwriter and the Company
that:
(a) The Selling Stockholder has, and immediately prior to each
Delivery Date (as defined in Section 4 hereof) the Selling Stockholder will
have, good and valid title to the shares of Stock to be sold by the Selling
Stockholder hereunder on such date, free and clear of all liens,
encumbrances, equities or claims (other than the interest of the
Underwriters referred to in Section 7(b)); and upon delivery of such shares
and payment therefor pursuant hereto, good and valid title to such shares,
free and clear of all liens, encumbrances, equities or claims, will pass to
the several Underwriters.
(b) The Selling Stockholder has full right, power and authority to
enter into this Agreement. The Selling Stockholder is not 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 Selling Stockholder. 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 Selling Stockholder pursuant to the terms of, or
constitute a default under, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or by-laws of
the Selling Stockholder or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Selling Stockholder or its
property. Except as set forth in the Final Prospectus or as required by
the Securities Act, the Exchange 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 by the Selling Stockholder of this Agreement.
(c) To the extent, but only to the extent, that any statements or
omissions made in the Registration Statement,
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any post-effective amendment thereto, the Final Prospectus or any amendment
or supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by the Selling Stockholder
specifically for use therein, 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 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 each Delivery 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.
(d) To the extent, but only to the extent, that any statements or
omissions made in the Basic Prospectus or any Interim Prospectus are made
in reliance upon and conformity with written information furnished to the
Company by the Selling Stockholders specifically for use therein, the Basic
Prospectus and any Interim Prospectus, as of their respective dates, 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.
(e) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the shares of the Stock.
3. Sale and Purchase of the Stock. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein stated, the Selling Stockholder agrees to sell to
each Underwriter, and each Underwriter agrees to purchase from the Selling
Stockholder, the number of shares of Firm Stock set forth opposite the name of
such Underwriter in Schedule II hereto. The obligations of the Underwriters
under this Agreement are several and not joint.
In addition, the Selling Stockholder grants to the Underwriters an
option to purchase up to an additional number of shares of Option Stock
indicated in Schedule I hereto. Such option is granted solely for the purpose of
covering over-allotments in the sale of Firm Stock and is exercisable as
provided in Section 4 hereof. Shares of Option Stock shall be purchased
severally for the account of the Underwriters in
8
proportion to the number of shares of Firm Stock set forth opposite the name of
such Underwriters in Schedule II hereto. The respective purchase obligations of
each Underwriter with respect to the Option Stock shall be adjusted by the
Representatives so that no Underwriter shall be obligated to purchase Option
Stock other than in 100 share amounts. The price of both the Firm Stock and any
Option Stock shall be the price per share indicated in Schedule I hereto.
4. Delivery and Payment. Delivery by the Selling Stockholder of the
Firm Stock 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
funds to or upon the order of the Selling Stockholder 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, the Company
and the Selling Stockholder or as provided in Section 12 hereof (such date and
time of delivery and payment for the Firm Stock being herein called the "First
Delivery Date").
The Firm Stock 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 First Delivery Date. The Selling Stockholder and the
Company agree to have the Firm Stock 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 First Delivery Date.
At any time on or before the thirtieth day after the First Delivery
Date, the option granted in Section 3 may be exercised by written notice being
given to the Selling Stockholder by the Representatives. Such notice shall set
forth the aggregate number of shares of Option Stock as to which the option is
being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives, when the
shares of Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the third business day after the date on which the option shall
have been exercised. The date and time the shares of Option Stock are delivered
are sometimes referred to as the "Second Delivery Date" and the First Delivery
Date and the Second Delivery Date are sometimes referred to as a "Delivery
Date".
Delivery by the Selling Stockholder of the Option Stock 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
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transfer of, New York Clearing House (next-day) funds to or upon the order of
the Selling Stockholder shall take place at the office and at the time specified
in Schedule I hereto, on the Second Delivery Date, which date and time may be
postponed by agreement between the Representatives, the Company and the Selling
Stockholder or as provided in Section 12 hereof.
The Option Stock will be registered in such names and in such
authorized denominations as the Representatives may request in the aforesaid
written notice. The Selling Stockholder and the Company agree to have the
Option Stock 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 Second
Delivery Date.
5. 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 Stock has been terminated, the Representatives will so advise the
Company.
6. Agreements of the Company. The Company agrees with the several
Underwriters and the Selling Stockholder 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 and the Selling Stockholder (A) when
the Final Prospectus shall have been filed with the Commission pursuant to
Rule 424, (B) when any amendment to the Registration Statement relating to
the Stock 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
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 Stock 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
the Stock, 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
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Prospectus pursuant to Item 12 of Form S-3) without the consent of the
Selling Stockholder and 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 Selling Stockholder and the Representatives pursuant to
Section 5, 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 Selling Stockholder and 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 Selling Stockholder and the
Representatives as to any comments which the Selling Stockholder and 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 Stock 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.
(c) The Company will deliver to the Representatives and the Selling
Stockholder, without charge, (i) signed copies of the Registration
Statement relating to the Stock 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
First Delivery Date (excluding exhibits) as the Representatives or the
Selling Stockholder 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
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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 Stock
for offering and sale under the laws of such jurisdictions as the Selling
Stockholder and the Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Stock; 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 Stock is outstanding, the Company will furnish or
cause to be furnished to the Representatives copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, respectively, or such other similar forms as may be
designated by the Commission.
(h) If the Company has applied for the listing of the Stock 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 of 30 days from the date of this Agreement, without
the prior consent of the Representatives, the Company will not offer, sell,
contract to sell or otherwise dispose of any shares of preferred stock, or
sell or grant options, rights or warrants with respect to any shares of
preferred stock 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 each Delivery Date and to
satisfy all conditions precedent to the delivery of the Stock to be
purchased hereunder.
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7. Agreements of the Selling Stockholder. The Selling Stockholder
agrees with the several Underwriters and the Company that:
(a) For a period of 30 days from the date of this Agreement, without
the prior consent of the Representatives, the Selling Stockholder will not
offer, sell, contract to sell or otherwise dispose of any shares of the
Preferred Stock (other than pursuant hereto), or sell or grant options,
rights or warrants with respect to any shares of the Preferred Stock.
(b) The Stock to be sold by the Selling Stockholder hereunder is
subject to the interest of the Underwriters and the obligations of the
Selling Stockholder hereunder shall not be terminated by any act of the
Selling Stockholder, by operation of law or the occurrence of any other
event not contemplated by this Agreement.
(c) To deliver to the Representatives prior to the First Delivery Date
a properly completed and executed United States Treasury Department Form W-
9 (or any successor form).
8. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Stock shall be subject to the
accuracy in all material respects of the representations and warranties on the
part of the Company and the Selling Stockholder contained herein as of the date
hereof and each Delivery 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 8, to the performance by the
Company and the Selling Stockholder 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, 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
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specified in the letter or letters referred to in paragraphs (i) or (j) of
this Section 8 which, in the judgment of the Representatives, makes it
impracticable or inadvisable to proceed with the offering and delivery of
the Stock as contemplated by the Registration Statement and the Final
Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of a Deputy General Counsel or the Chief Legal Officer for the
Company, dated the day of each Delivery 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 Stock conforms in all material respects to the
descriptions thereof contained in the Final Prospectus.
(iii) The Company has an authorized capitalization as set forth in
the Final Prospectus, and all of the issued shares of capital stock of
the Company (including the shares of Stock being delivered on such
Delivery Date) have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus;
(iv) There are no restrictions upon the voting or transfer of,
any shares of the Stock pursuant to the Company's charter or by-laws
or any agreement or other instrument known to such counsel;
(v) No consent, approval, authorization or order of any
court or governmental agency or body is required to be obtained by the
Company for the consummation of the transactions contemplated in this
Agreement, except for 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
Stock by the Underwriters.
(vi) 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.
(vii) To the best of such counsel's knowledge, neither the Company
nor any of its Named Subsidiaries 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.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of
this Agreement 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 any of its Named
Subsidiaries 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 any of its Named Subsidiaries is a party
or is bound, or result in a violation of the corporate charter or by-
laws of the Company or any of its Named Subsidiaries or any order,
rule or regulation known to such counsel of any court or governmental
agency having jurisdiction over the Company, any of its Named
Subsidiaries or any of their respective properties, the effect of
which would be material to the Company and its subsidiaries taken as a
whole.
(ix) 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.
(x) 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 included or incorporated by reference therein) comply
as to form in all material respects with the requirements of the
Securities Act and the Rules.
(xi) If the Stock is 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 supporting documents
with respect to the Stock with the NYSE, and such counsel has no
reason to believe that the Stock will not be authorized for listing,
subject
15
to official notice of issuance and evidence of satisfactory
distribution.
(xii) Each of the Named Subsidiaries 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 Subsidiaries 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.
(xiii) All the outstanding shares of capital stock of each of
the Company's Named Subsidiaries 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.
(xiv) 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 expressed as to the
16
financial statements or other financial or statistical data 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 and public officials.
(e) Xxxxxx X. Parent, Esq. or other counsel reasonably acceptable to
the Representatives, shall have furnished to the Representatives her
written opinion, as counsel to the Selling Stockholder, addressed to the
Underwriters and dated the day of such Delivery Date, in form and substance
satisfactory to the Representatives, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder; the Selling Stockholder is the
sole and registered owner of the Stock; the Selling Stockholder has
full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Stock pursuant to this
Agreement; the execution, delivery and performance of this Agreement
by the Selling Stockholder 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 Selling Stockholder pursuant
to the terms of, or constitute a default under, any material
agreement, indenture or instrument known to such counsel and to which
the Selling Stockholder is a party or is bound, or result in a
violation of the corporate charter or by-laws of the Selling
Stockholder or any order, rule or regulation known to such counsel of
any court or governmental agency having jurisdiction over the Selling
Stockholder or any of its respective properties, the effect of any of
which would be material to the Selling Stockholder.
(ii) No consent, approval, authorization or order of any court
or governmental agency or body is required to be obtained by the
Selling Stockholder for the consummation of the transactions
contemplated in this Agreement, except for such registrations,
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 or securities laws of any applicable
jurisdiction in connection with the purchase and distribution of the
Stock by the Underwriters.
17
(iii) Upon payment for, and delivery of, the shares of Stock to
be sold by the Selling Stockholder under this Agreement in accordance
with the terms hereof, the Underwriters will acquire all of the rights
of the Selling Stockholder in such shares and will also acquire the
interest of the Selling Stockholder in such shares free of any adverse
claim (within the meaning of the Uniform Commercial Code as in effect
in the State of New York).
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, 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 with respect to the
Selling Stockholder or omitted to state a material fact with respect to the
Selling Stockholder required to be stated therein or necessary in order to
make the statements therein with respect to the Selling Stockholder not
misleading or (ii) the Final Prospectus contains any untrue statement of a
material fact with respect to the Selling Stockholder or omits to state a
material fact with respect to the Selling Stockholder necessary in order to
make the statements therein with respect to the Selling Stockholder, in the
light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (i) state that her opinion
is limited to matters governed by the federal law of the United States and
the laws of the State of New York, (ii) rely as to matters of fact, to the
extent such counsel deems proper, upon certificates or affidavits of
officers of the Selling Stockholder and public officials and (iii) with
respect to the opinion set forth in paragraph (iii) above, assume that the
Underwriters will purchase the Stock for value in good faith and without
notice of any adverse claim within the meaning of Section 8-302 of the
Uniform Commercial Code as in effect in the State of New York.
(f) The Representatives shall have received from Underwriters' Counsel
such opinion or opinions, dated the day of such Delivery Date, with respect
to the issuance and sale of the Stock, 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.
(g) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Executive
18
Vice President or Vice President and its Chief Financial Officer or its
Treasurer, dated the day of each Delivery Date, to the effect that, to the
best of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
such Delivery Date with the same effect as if made on such Delivery
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 such Delivery Date.
(ii) 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) (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 there has not occurred any event required to be
set forth in an amended or supplemented prospectus which has not been
so set forth.
(h) The Selling Stockholder shall have furnished to the
Representatives a certificate of its President or any Vice President, dated
the day of each Delivery Date, to the effect that, to the best of his
knowledge after due inquiry: (i) the representations and warranties of the
Selling Stockholder in this Agreement are true and correct in all material
respects on and as of such Delivery Date with the same effect as if made on
such Delivery Date, (ii) the Selling Stockholder has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Delivery Date and (iii) (x) the Registration
Statement does not contain any untrue statement of a material fact with
respect to the Selling Stockholder or omit to state any material fact with
respect to the Selling Stockholder required to be stated therein or
necessary to make the statements therein with respect to the Selling
Stockholder not misleading, (y) the Final Prospectus does not contain any
untrue statement of a material fact with respect to the Selling Stockholder
or omit to state a material fact with respect to the Selling Stockholder
19
required to be stated therein or necessary in order to make the statements
therein with respect to the Selling Stockholder, in the light of the
circumstances under which they were made, not misleading and (z) since the
effective date of the Registration Statement there has not occurred any
event with respect to the Selling Shareholder required to be set forth in
an amended or supplemented prospectus which has not been so set forth.
(i) 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 Lehman
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.
20
(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 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 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 (i) 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 (i), such nationally
recognized firm of independent public accountants need not perform any
procedures subsequent to the date of the Prior Letter.
(j) At each Delivery Date, the nationally recognized firm of
independent public accountants referred to in paragraph (i) of this Section
8 shall have furnished to the Representatives a letter, dated the day of
such Delivery Date, in form and substance satisfactory to the
Representatives, which reconfirms the matters set forth in
21
their letter delivered pursuant to paragraph (i) of this Section 8 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 (i) of this Section 8 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 and of
the latest unaudited consolidated financial statements made available
by the Company and Lehman, 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 (i) of this Section 8, 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
22
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
decrease in the capital stock or additional paid-in capital, or
increase in long-term indebtedness of the Company and its
subsidiaries, or any increase in the accumulated deficit, 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 Lehman determined pursuant to
Commission Rule 15c3-1 and shown in the most recent financial
statement of Lehman 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 decrease 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 Xxxxxx determined
pursuant to Commission Rule 15c3-1, as compared with the amounts
shown on the most recent financial statement of Xxxxxx filed
pursuant to Commission Rule 17a-5, such that Xxxxxx 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;
23
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 delivered pursuant to paragraph (i) of this Section 8,
(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 (i) of this Section 8, 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.
(k) 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 each Delivery Date, a
nationally recognized firm of independent public accountants shall have
furnished
24
to the Representatives a letter, dated the day of such Delivery 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 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.
(l) Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock.
(m) Prior to each Delivery 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 8 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 8 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, each Delivery Date by
the Representatives. Notice of such cancellation shall be given to the Company
and the Selling Stockholder in writing.
25
9. Conditions to the Obligations of the Selling Stockholder. The
obligations of the Selling Stockholder to sell the Stock 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 each Delivery
Date, to the accuracy of any material statements made in any certificates,
opinions, affidavits, written statements or letters furnished to the Selling
Stockholder pursuant to this Section 9, to the performance by the Company of its
respective obligations hereunder, to the conditions set forth in Sections 8(a),
(b), (c) and (l) and to the following additional conditions:
(a) The Company shall have furnished to the Selling Stockholder an
opinion of the same tenor as the opinion delivered to the Representatives
pursuant to Section 8(d).
(b) The Company shall have furnished to the Selling Stockholder a
certificate of the same tenor as the certificate delivered to the
Representatives pursuant to Section 8(g).
(c) At the time this Agreement is executed and at each Delivery Date,
a nationally recognized firm of independent public accountants shall have
furnished to the Selling Stockholder letters of the same tenor as the
letters delivered to the Representatives pursuant to Sections 8(i), (j) and
(k), as applicable (provided, that the Selling Stockholder shall have
furnished to such accountants such certificates and opinions as such
accountants may request in connection with their delivery of such letter).
If any of the conditions specified in this Section 9 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Selling Stockholder pursuant to this
Section 9 shall not be in all material respects reasonably satisfactory in form
and substance to the Selling Stockholder and to counsel for the Selling
Stockholder, this Agreement and all obligations of the Selling Stockholder
hereunder may be cancelled at, or at any time prior to, each Delivery Date by
the Selling Stockholder. Notice of such cancellation shall be given to the
Company and the Representatives in writing.
10. Expenses. (a) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company and
the Selling Stockholder will pay (in such proportion as shall be agreed between
them) all costs and expenses incident to the performance of the respective
obligations of the Company and the Selling Stockholder hereunder, including,
without limiting the generality of the foregoing, all costs, taxes and expenses
incident to the issuance, sale and delivery of the Stock to the Underwriters,
all fees and expenses of the Company's counsel and accountants, all fees and
expenses of the Selling Stockholder's Counsel, all costs and expenses
26
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 thereto, and the
rating of the Stock 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 Stock
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 Stock on the NYSE and all costs and expenses of the
printing and distribution of all documents in connection with such offering.
Except as provided in this Section 10, neither the Company nor the Selling
Stockholder will have any 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 Stock provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 8 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company or the Selling Stockholder to perform any
agreement herein or comply with any provision hereof, the Company or the Selling
Stockholder, as the case may be, 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 Stock.
11. Indemnification. (a) The Company shall indemnify and hold
harmless each Underwriter, its directors, officers and employees, each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
the Selling Stockholder, its directors, officers and employees and each person,
if any, who controls the Selling Stockholder within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which any such indemnified party may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, including any amount paid in settlement
of any litigation commenced or threatened, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) 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 (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any written
information furnished by the Company)
27
specifically for the purpose of qualifying any or all of the Stock under the
securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "Blue Sky Application"), (ii)
the omission or alleged omission to state 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 in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading or
(iii) any violation or alleged violation by the Company of the Securities Act,
any blue sky laws, securities laws or other applicable laws of any state or
country in which the Stock is offered and relating to action or inaction
required of the Company in connection with such offering, and shall reimburse
each indemnified party promptly upon demand for any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made 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 in reliance upon and in conformity
with the written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein and described in Section 10(f) or written information furnished to the
Company by the Selling Stockholder specifically for inclusion therein and
described in Section 10(g); and provided, further, that as to the Basic
Prospectus or any Interim Prospectus this Section 11(a) shall not inure to the
benefit of any Underwriter, its directors, officers or employees or any person
controlling that Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Stock to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Final Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in the
Basic Prospectus or any Interim Prospectus, as the case may be, was corrected in
the Final Prospectus, unless such failure resulted from non-compliance by the
Company with Section 6(d). For purposes of the last proviso to the immediately
preceding sentence, the term "Final Prospectus" shall not be deemed to include
the documents incorporated therein by reference, and no Underwriter shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in the Basic Prospectus or any Interim Prospectus to
any person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
28
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any such indemnified party.
(b) The Selling Stockholder shall indemnify and hold harmless each
Underwriter, its directors, officers and employees, each person, if any, who
controls any Underwriter within the meaning of the Securities Act, the Company,
its directors, officers and employees and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which any such indemnified party
may become subject, under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise, including any
amount paid in settlement of any litigation commenced or threatened, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) 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, (ii) the omission
or alleged omission to state 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 any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in the case of clauses (i) and (ii) only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the written
information furnished to the Company by or on behalf of the Selling Stockholder
specifically for inclusion therein and described in Section 11(g), or (iii) any
violation or alleged violation by the Selling Stockholder of the Securities Act,
any blue sky laws, securities laws or other applicable laws of any state or
country in which the Stock is offered and relating to action or inaction
required of the Selling Stockholder in connection with such offering, and shall
reimburse each indemnified party promptly upon demand for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that as to the Basic Prospectus or any Interim Prospectus this Section 11(b)
shall not inure to the benefit of any Underwriter, its directors, officers or
employees or any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of Stock to any person
by that Underwriter if that Underwriter failed to send or give a copy of the
Final Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue
29
statement of a material fact or omission or alleged omission to state a material
fact in the Basic Prospectus or any Interim Prospectus, as the case may be, was
corrected in the Final Prospectus. If such failure resulted from non-compliance
by the Company with Section 6(d), the Company shall indemnify such Underwriter,
its directors, officers and employees and any person controlling such
Underwriter on account of any such loss, claim, damage, liability or action.
For purposes of the proviso to the second preceding sentence, the term "Final
Prospectus" shall not be deemed to include the documents incorporated therein by
reference, and no Underwriter shall be obligated to send or give any supplement
or amendment to any document incorporated by reference in the Basic Prospectus
or any Interim Prospectus to any person other than a person to whom such
Underwriter had delivered such incorporated document or documents in response to
a written request therefor. The foregoing indemnity agreement is in addition to
any liability which the Selling Stockholder may otherwise have to any such
indemnified party.
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its directors, officers and employees, each person,
if any, who controls the Company within the meaning of the Securities Act, the
Selling Stockholder, its directors, officers and employees and each person, if
any, who controls the Selling Stockholder within the meaning of the Securities
Act from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which any such indemnified party may become
subject, under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, including any amount
paid in settlement of any litigation commenced or threatened, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained
(A) 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 (B) in any
Blue Sky Application or (ii) the omission or alleged omission to state 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 any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in the
case of clauses (i) and (ii) only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the written information furnished to the Company
through the Representatives by or on behalf of that Underwriter specifically for
inclusion therein and described in Section 11(f), and shall reimburse any such
indemnified party promptly upon demand for any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability of
30
action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to any such
indemnified party.
(d) Promptly after receipt by an indemnified party under this Section
11 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 11, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 11 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 11.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similar notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 11 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Representatives, if
the indemnified
31
parties under this Section 11 consist of any Underwriter or any of their
respective officers, employees or controlling persons, or by the Company, if the
indemnified parties under this Section 11 consist of the Company or any of the
Company's directors, officers, employees or controlling persons or by the
Selling Stockholder, if the indemnified parties under this Section 11 consist of
the Company or any of the Selling Stockholder's directors, officers, employees
or controlling persons; provided, however, that the Underwriters and the Selling
Stockholder shall each have the right at the indemnifying party's expense to
employ separate counsel to represent them and their respective directors,
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be subject under this
Section 11 if, in the reasonable judgment of the Representatives or the Selling
Stockholder, as the case may be, it is advisable for the Underwriters or the
Selling Stockholder, as the case may be, and their respective directors,
officers, employees and controlling persons to be jointly represented by
separate counsel (it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Underwriters or the Selling Stockholder, as the case may be, and their
respective directors, officers, employees and controlling persons, which firm
shall be designated in writing by the Representatives or the Selling
Stockholder, as the case may be). Each indemnified party, as a condition of the
indemnity agreements contained in Sections 11(a), 11(b) and 11(c), shall use its
best efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 11 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 11(a), 11(b) or 11(c) in respect of any loss, claim, damage
or liability, or
32
any action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, in such proportion as shall
be appropriate to reflect the relative fault of the indemnifying party on the
one hand and the indemnified party or parties on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party on the one hand or the indemnified party or parties on the
other hand, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission,
but not by reference to the Selling Stockholder's or any other indemnified
party's stock ownership in the Company. The Company, the Selling Stockholder
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 11(e) were to be 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 into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 11(e) shall be
deemed to include, for purposes of this Section 11(e), 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 11(e), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 12(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 11(e) are several in proportion to their respective underwriting
obligations and not joint.
(f) The Underwriters severally confirm that the statements with
respect to the public offering of the Stock set forth in the last paragraph on
the cover page of, and under the caption "Underwriting" in, the Final Prospectus
are correct and constitute the only information furnished in writing to the
Company by or on behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Final Prospectus.
33
(g) The Selling Stockholder confirms that the statements with respect
to the public offering of the Stock set forth under the caption "Selling
Stockholder" in the Final Prospectus are correct and constitute the only
information furnished in writing to the Company by or on behalf of the Selling
Stockholder specifically for inclusion in the Registration Statement and the
Final Prospectus.
12. Default by an Underwriter. If, on either Delivery Date, any one
or more Underwriters shall fail to purchase and pay for all of the Stock 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 number
of shares of Firm Stock set forth opposite their names in Schedule II hereto
bear to the aggregate number of shares of Firm Stock set opposite the names of
the remaining Underwriters) the Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date; provided,
however, that in the event that the aggregate number of shares of Stock which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date shall exceed 10% of the aggregate number of shares of the Stock,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Stock, and if such non-
defaulting Underwriters do not purchase all the Stock, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters to
purchase, and of the Selling Stockholder to sell, the Option Stock) will
terminate without liability to any non-defaulting Underwriters, the Company or
the Selling Stockholder. In the event of a default by any Underwriter as set
forth in this Section 12, the particular Delivery Date shall be postponed for
such period, not exceeding seven days, as the Representatives shall determine in
order that 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, the Selling Stockholder and any non-defaulting Underwriter
for damages occasioned by its default hereunder.
13. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
and the Selling Stockholder at or prior to delivery of and payment for all the
Firm Stock, if, prior to such time (i) any of the events described in Section
8(l) shall have occurred, (ii)(x) the Company or any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Final Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
34
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Prospectus or (y) since such date there shall have
been any change in the capital stock, net capital or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise then as set forth or contemplated in the Final
Prospectus, the effect of which, in any such case described in clause (x) or
(y), is, in the judgment of the Representatives, so material and adverse as to
make it impractical or unadvisable to proceed with the public offering or
delivery of the Stock in the terms and in the manner contemplated in the Final
Prospectus, (iii) trading in securities generally on the NYSE or the American
Stock Exchange or in the over-the-counter market, or trading in any securities
of the Company on any exchange or in the over-the-counter market, shall have
been suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (iv) a banking
moratorium shall have been declared by federal or state authorities, (v) the
United States becomes engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States, (vi) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such) as to make it, in the
judgment of the Representatives, impractical or inadvisable to proceed with the
public offering or delivery of the Stock on the terms and in the manner
contemplated in the Final Prospectus or (viii) the Underwriters shall decline to
purchase the Stock for any reason permitted under this Agreement.
14. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers), the Selling
Stockholder 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, the
Selling Stockholder or the Company or any of their respective officers or
directors or any controlling person within the meaning of the Securities Act, or
the Selling Stockholder, and will survive delivery of the payment for the Stock.
15. 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; if sent to
the Company will be mailed, delivered, telegraphed or telexed and confirmed to
it at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
35
Attention: Chief Financial Officer; or if sent to the Selling Stockholder will
be mailed, delivered, telegraphed or telexed and confirmed to it at World
Financial Center, American Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Chief Financial Officer.
16. 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 11 hereof, the officers and directors and
controlling persons referred to in Section 11 hereof, and except as provided in
Section 11 hereof, no person other than the parties hereto and their respective
successors will have any right or obligation hereunder.
17. 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, the Selling Stockholder and the several Underwriters.
Very truly yours,
XXXXXX BROTHERS HOLDINGS INC.
By____________________________________
Title:
AMERICAN EXPRESS TRAVEL RELATED SERVICES
COMPANY, INC.
By____________________________________
Title:
36
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:
Registration Statement No. 33-
Representative and Address: Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Description of Stock:
Title: Cumulative Voting Preferred Stock,
$1.00 par value per share
Number of shares
of Firm Stock: ____________ shares
Maximum number of shares
of Option Stock: ____________ shares
Price per share: $
Price to public:
Time of payment of
dividends: March 15, June 15, September 15 and December
15 of each year, when, as and if declared by
the Board of Directors or a duly authorized
committee thereof out of assets legally
available therefor
Sinking fund provisions: None
Redemption provisions: As set forth in the Final Prospectus
Repayment provisions: None
Other provisions: As set forth in the Final Prospectus
First Delivery Date, Time and Location:
Date:
Time:
Location:
SCHEDULE II
NUMBER OF
SHARES OF
FIRM STOCK
TO BE
UNDERWRITERS PURCHASED
------------ -----------
Xxxxxx Brothers Inc. .................................
Xxxxxx Xxxxxxx & Co. Incorporated.....................
Total...........................................
