XXXXXX XXXXXXXXXXX
Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
March, 2002
1. Introductory. Xxxxxx Xxxxxxxxxxx, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time senior debt securities,
subordinated debt securities, convertible subordinated debt securities
(collectively, "Debt Securities"), preferred stock and common stock registered
under the registration statement referred to in Section 2(a) ("Registered
Securities"). If specified in a Terms Agreement referred to in Section 3, the
Company proposes to grant to the underwriters an option to purchase up to that
amount of Registered Securities specified in such Terms Agreement (herein called
the "Option Securities"). The Debt Securities will be issued under indentures
(as they may be amended or supplemented from time to time, the "Indentures"),
more particularly described in a Terms Agreement, between the Company and the
trustees named therein (the "Trustee(s)"), in one or more series, which series
may vary as to interest rates, maturities, redemption provisions, selling prices
and other terms, with all such terms for any particular series of the Debt
Securities being determined at the time of sale. The preferred stock will be
issued in one or more series, which series may vary as to voting rights,
dividends, optional and mandatory redemption provisions, liquidation preference
and conversion provisions and other terms, with all such terms for any
particular series or issue of the preferred stock being determined at the time
of issue. The Registered Securities will be sold pursuant to a Terms Agreement,
for resale in accordance with terms of offering determined at the time of sale.
The Registered Securities (together with the Option Securities)
involved in any such offering are hereinafter referred to as the "Securities."
The firm or firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms Agreement are
hereinafter referred to as the "Representatives"; provided, however, that if the
Terms Agreement does not specify any representative of the Underwriters, the
term "Representatives," as used in this Agreement (other than in Sections 2(b),
5(c) and 6 and the second sentence of Section 3) shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3, including a form of
prospectus, relating to the Registered Securities and more particularly
described in the Terms Agreement relating to the Securities has been
prepared by the Company and filed with, and has been declared effective
by, the Securities and Exchange Commission ("Commission"). If any
post-effective amendment to such registration statement has been filed
with the Commission prior to the date of the applicable Terms Agreement,
the most recent such
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amendment has been declared effective by the Commission. For purposes of
this Agreement, "Effective Date" means the date as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission. Such
registration statement, as amended or supplemented from time to time on or
prior to the date of any Terms Agreement, including all material
incorporated by reference therein, is hereinafter referred to as the
"Registration Statement," and the prospectus included in the Registration
Statement, as amended or supplemented for the offering of the Purchased
Securities (as defined in Section 3), including all documents incorporated
by reference therein, is hereinafter referred to as the "Prospectus."
(b) On the Effective Date, the Registration Statement conformed in
all respects to the requirements of the Securities Act of 1933, as amended
("Act"), the Trust Indenture Act of 1939, as amended ("Trust Indenture
Act"), if applicable, and the rules and regulations of the Commission
("Rules and Regulations") and did not include 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; on the
date of the applicable Terms Agreement and on the Closing Date (as defined
in Section 3), the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto relating to the Purchased
Securities, and any documents filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated by reference or deemed to be incorporated by reference in the
Prospectus, will conform in all respects to the requirements of the Act,
the Exchange Act, the Trust Indenture Act, if applicable, and the Rules
and Regulations; and as of the date of the applicable Terms Agreement and
as of the applicable Closing Date, neither the Registration Statement nor
the Prospectus will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, except that the foregoing
does not apply to statements in or omissions from any of such documents
based upon written information furnished to the Company by or on behalf of
any Underwriter through the Representatives, if any, specifically for use
therein.
(c) (i) The Indenture, if any, described in the Terms Agreement has
been duly authorized and, when executed by the proper officers of the
Company and delivered (assuming due execution and delivery thereof by the
Trustee), will constitute the valid and legally binding instrument of the
Company. When the Registration Statement became effective, the Indenture
was duly qualified under the Trust Indenture Act. The Debt Securities, if
any, described in the Terms Agreement have been duly and validly
authorized and will be, when validly executed, authenticated and delivered
in accordance with the terms of the Indenture, issued and outstanding
obligations of the Company entitled to the benefits of the Indenture. (ii)
If any Securities to be issued are convertible, the shares of common stock
issuable upon conversion are duly and validly authorized; have been duly
reserved for issuance upon conversion of the Securities; when issued upon
the conversion of the Securities, will be duly and validly issued, fully
paid and non-assessable. (iii) The common stock and preferred stock, if
any, described in the Terms Agreement have been duly and validly
authorized and when issued will be fully paid and non-assessable. (iv) No
further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and sale of the
Securities as contemplated herein or the issuance of the shares of common
stock upon
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conversion of the Securities. (v) The Securities conform to the
description thereof in the Prospectus.
(d) The consummation by the Company of the transactions contemplated
by this Agreement and any Terms Agreement and the performance of the
Company's obligations hereunder will not be in contravention of law or of
any of the provisions of the certificate of incorporation or bylaws of the
Company or of any material agreement to which the Company is a party or by
which it is bound or of any order, rule or regulation applicable to it of
any court or of any governmental body or instrumentality having
jurisdiction over it or its properties.
3. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of a
telegram, telex or other written communications ("Terms Agreement") at each time
the Company determines to sell the Securities. The Securities involved in any
such offering are referred to herein as "Purchased Securities." Each Terms
Agreement will be in the form of Annex II (A) or (B) attached hereto and will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be Underwriters,
the names of any Representatives, the amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and certain terms
of the Securities and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below). The Terms
Agreement will also specify the time and date of delivery and payment (such time
and date, or such other time as the Representatives and the Company agree as the
time for payment and delivery, being herein and in the Terms Agreement referred
to as the "Closing Date"), the place of delivery and payment and any details of
the terms of public offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as set
forth in the Prospectus. The Debt Securities delivered to the Underwriters on
the Closing Date will be in definitive fully registered form, in such
denominations and registered in such names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company grants an option to the
several Underwriters to purchase, severally and not jointly, up to that amount
of the Option Securities, as shall be specified in the Terms Agreement, from the
Company at the same price as the Underwriters shall pay for the Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Securities by the Underwriters and may be exercised in whole or in part at any
time (but not more than once) on or before the thirtieth day after the date of
the Terms Agreement upon written or telegraphic notice by you to the Company
setting forth the amount of the Option Securities as to which the several
Underwriters are exercising the option. The amount of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total amount
of the Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Securities, as adjusted by you in such manner
as you deem advisable to avoid fractional shares/units.
If the Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contract") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are only to be with institutional investors,
including
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commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
amount of Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts. If the
Company executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Securities to be purchased by the several
Underwriters and the aggregate amount of Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the amount of Securities
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Representatives determine that such reduction shall be
otherwise than pro rata and so advise the Company. The Company will advise the
Representatives not later than the business day prior to the Closing Date of the
amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
for the Underwriters, one signed copy of the registration statement relating to
the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities:
(a) The Company will timely file the Prospectus with the Commission
pursuant to Rule 424(b); the Company will advise you promptly of any such
filing pursuant to Rule 424(b); the Company will advise the
Representatives promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will afford the
Representatives a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Company will also advise the
Representatives promptly of the filing and effectiveness of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs in the reasonable
judgment of the Underwriters or the Company as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company promptly will
prepare and file with the Commission, subject to Section 4(a) herein, an
amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance.
(c) As soon as practicable after the date of each Terms Agreement,
but in no event later than twelve months after the later of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the
date of such Terms Agreement and (iii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of such Terms Agreement, the Company will make generally available to
its security holders an earning statement which will satisfy the
provisions of Section 11(a) of the Act.
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(d) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as
required for the distribution.
(f) During the period, if any, specified in the Terms Agreement
after the date of such Terms Agreement or for such shorter period as the
Securities remain outstanding, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters, if
any, as soon as practicable after the end of each fiscal year, a copy of
its annual report to stockholders for such year; and the Company will
furnish to the Representatives (i) as soon as available, a copy of each
report or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) from
time to time, such other information concerning the Company as the
Representatives may reasonably request.
(g) The Company will pay the costs incident to the authorization,
issuance, sale and delivery of the Securities to be sold by the Company to
the Underwriters and any taxes payable in that connection; the costs
incident to the preparation, printing and filing under the Act of the
Registration Statement and any amendments and exhibits thereto; the costs
incident to the preparation, printing and filing of any document and any
amendments and exhibits thereto required to be filed by the Company under
the Exchange Act; the cost of distributing the Registration Statement to
the Underwriters as originally filed and each amendment thereto, each
post-effective amendment thereof (including exhibits), any preliminary
prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any documents incorporated by reference in any of the
foregoing documents as provided in this Agreement; the costs of filing
with the National Association of Securities Dealers, Inc., if necessary;
the fees and expenses of qualifying the Securities under the securities
laws of the several jurisdictions as provided in this subsection and of
preparing and printing a Blue Sky memorandum and a memorandum concerning
the legality of the Securities as an investment (including fees of counsel
to the Underwriters in connection therewith); the costs of printing and
issuance of certificates; any transfer agent's fees; the costs of
preparation, printing and filing of any Indenture and any Trustees' fees
and expenses; and all other costs and expenses incident to the performance
of the obligations of the Company under this Agreement provided that,
except as provided in this subsection and Section 8, the Underwriters
shall pay their own costs and expenses, including the fees and expenses of
their counsel, any transfer taxes on the Securities which they may sell,
the expenses of advertising any offering of the Securities made by the
Underwriters and the cost of printing any Agreement among Underwriters,
and provided, further, that after nine months from the date of the Terms
Agreement, the Underwriters shall pay the costs of printing any additional
Registration Statements or Prospectuses, or any amendments or supplements
thereto, required for their own use.
(h) Without the prior consent of the Representatives, the Company
will not, (A) in the event of an offering of common stock, preferred stock
or convertible debt securities,
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offer, sell, contract to sell or otherwise dispose of any shares of common
stock or any securities convertible into or exchangeable or exercisable
for or any rights to purchase or acquire common stock for that period
specified in the Terms Agreement, other than shares of common stock or
options to purchase common stock granted under the Company's employee
benefit plans and, (B) for a period beginning at the time of execution of
the Terms Agreement and ending on the Closing Date, in the event of an
offering of Debt Securities, will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company with maturities
longer than one year, other than (i) the Debt Securities to the
Underwriters or the Contract Securities; (ii) borrowings in the ordinary
course of business; and (iii) other borrowings in an aggregate principal
amount not to exceed $100 million.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the Closing Date, the Representatives shall have
received a letter, dated the date of delivery thereof and any later date
on which Option Securities are purchased if specified in a Terms
Agreement, of Ernst & Young LLP, or such other independent accountants
acceptable to the Representatives, addressed to the Underwriters and the
Board of Directors of the Company, confirming that they are independent
accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and covering such other
matters as the Representatives shall request. Such letter shall be in form
and substance satisfactory to the Representatives.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters, including any Representatives,
materially impairs the investment quality of the Securities or the
Registered Securities; (ii) any downgrading in the rating of the Company's
debt securities by any of Duff & Xxxxxx, Standard & Poor's Corporation or
Xxxxx'x Investors Services, Inc.; (iii) any suspension of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by Federal
or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the
Underwriters, including any Representatives, the effect of any such
outbreak, escalation,
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declaration, calamity or emergency makes it impracticable or inadvisable
to proceed with completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of the General Counsel of the Company, or such other counsel
for the Company acceptable to the Representatives and if Option Securities
are purchased at any date after the Closing Date as specified in a Terms
Agreement, additional opinions from each such counsel, addressed to the
Underwriters and dated such later date, confirming that the statements
expressed as of the Closing Date in such opinions remain valid as of such
later date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and in good standing
as a foreign corporation in all jurisdictions in which the ownership
of its property or the conduct of its businesses requires such
qualification (except where the failure to so qualify could not have
a material adverse effect upon the Company and its subsidiaries
taken as a whole), and has all power and authority necessary to own
its properties and conduct the businesses in which it is engaged as
described in the Prospectus.
(ii) The Indenture, if any, described in the Terms Agreement
has been duly authorized, executed and delivered by the Company and
has been duly qualified under the Trust Indenture Act; the Debt
Securities, if any, described in the Terms Agreement have been duly
authorized; the Debt Securities other than any Contract Securities
have been duly executed, authenticated, issued and delivered; such
Indenture and the Debt Securities other than any Contract Securities
constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to Delayed Delivery Contracts, will
constitute, valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equity principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing;
(iii) If any Securities to be issued are convertible, the
shares of common stock into which the Securities will be initially
convertible are duly and validly authorized; have been duly reserved
for issuance upon conversion of the Securities; and when issued upon
the conversion of the Securities, will be duly and validly issued,
fully paid and non-assessable;
(iv) The common stock and preferred stock, if any, described
in the Terms Agreement have been duly and validly authorized and
issued and are fully paid and non-assessable;
(v) The Securities other than any Contract Securities conform,
and any Contract Securities, when so issued and delivered and sold,
will conform, in all material respects to the description thereof
contained in the Prospectus;
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(vi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Securities by the
Company, except such as have been obtained and made under the Act
and the Trust Indenture Act, if applicable, and such as may be
required under state securities laws;
(vii) The execution, delivery and performance of the
Indenture, if any, described in the Terms Agreement, the Terms
Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the
Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule,
regulation or order known to such counsel of any governmental agency
or body or any court having jurisdiction over the Company or any of
its properties or any material agreement or instrument known to such
counsel to which the Company is a party or by which the Company is
bound or to which any of the properties of the Company is subject,
or the charter or by-laws of the Company, and the Company has full
power and authority to authorize, issue and sell the Securities as
contemplated by the Terms Agreement (including the provisions of
this Agreement);
(viii) The Registration Statement has become effective under
the Act as of the date specified in such opinion, the Prospectus was
filed with the Commission pursuant to Rule 424(b) on the date
specified in such opinion, and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated
under the Act, and the Registration Statement relating to the
Registered Securities, as of its Effective Date, the Registration
Statement and the Prospectus, as of the date of the Terms Agreement,
any amendment or supplement thereto, as of its date, and the
documents incorporated by reference therein, as of their respective
filing dates, complied as to form in all material respects with the
requirements of the Act, the Exchange Act, the Trust Indenture Act,
if applicable, and the Rules and Regulations; such counsel has no
reason to believe that such Registration Statement, as of its
Effective Date, the Registration Statement or the Prospectus, as of
the date of the Terms Agreement, or any such amendment or
supplement, as of its date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; any descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in
the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement which are not described and filed as
required; it being understood that such counsel need express no
opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus; and
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(ix) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(e) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as they may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate, dated the
Closing Date and on any later date on which Option Securities are
purchased if specified in a Terms Agreement, of the Chairman of the Board,
the Vice Chairman of the Board, the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission and that, subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change in the financial position or results
of operation of the Company and its subsidiaries except as set forth in or
contemplated by the Prospectus or as described in such certificate.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives, if any, specifically for use
therein; and provided further, that as to any related preliminary prospectus or
preliminary prospectus supplement this indemnity agreement shall not inure to
the benefit of any Underwriter on account of any loss, claim, damage or
liability (or action in respect thereof) arising from the sale of the Securities
to any person by that Underwriter if that Underwriter failed to send or give a
copy of the Prospectus, as the same may
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be amended or supplemented, to that person within the time required by the Act,
and the untrue statement or alleged untrue statement of any material fact or
omission or alleged omission to state any material fact in such preliminary
prospectus or preliminary prospectus supplement was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company with Section
4(d). For purposes of the second proviso to the immediately preceding sentence,
the term Prospectus shall not be deemed to include the documents incorporated by
reference therein, and no Underwriter shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in a
preliminary prospectus, a preliminary prospectus supplement or the Prospectus to
any person other than a person to whom such Underwriter has delivered such
incorporated documents in response to a written request therefor.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a)
or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided that the Representatives shall have the right to
employ one counsel to represent the Representatives and those other
Underwriters who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the
Company under this Section if, in the reasonable judgement of outside
counsel to the Underwriters, it is advisable for the Representatives and
those other Underwriters to be represented by separate counsel
10
because separate defenses are available to such Underwriters, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in the clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section
were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purposes) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of
11
the Company who has signed the Registration Statement and to each person,
if any, who controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase securities under the Terms Agreement
and the aggregate amount of the Securities that such defaulting Underwriter of
Underwriters agreed but failed to purchase does not exceed 10% of the total
amount of the Securities, the Representatives may make arrangements satisfactory
to the Company for the purchase of such Securities by other persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under this Agreement and the Terms
Agreement, to purchase the Securities that such defaulting Underwriters agreed
but fail to purchase. If any Underwriter or Underwriters so default and the
aggregate amount of the Securities with respect to which such default or
defaults occur exceeds 10% of the total amount of the Securities and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities by other persons are not made within 36 hours after
such default, such Terms Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Company, except as provided in Section
8. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the amounts of the Securities set forth opposite their
names in the Terms Agreement as a result of Delayed Delivery Contracts entered
into by the Company.
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specifies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If the obligations of the
Underwriters with respect to any offering of Securities are terminated pursuant
to Section 7 or if for any reason the purchase of the Securities by the
Underwriters under a Terms Agreement is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4 and the respective obligations of the Company and the Underwriters
pursuant to Section 6 shall remain in effect. If for any reason the purchase of
the Securities by the Underwriters is not consummated other than because of the
termination of this Agreement pursuant to Section 7 or a failure to satisfy the
conditions set forth in Section 5(c), the Company shall reimburse the
Underwriters, severally, for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered, telexed or telecopied and
confirmed to them at their addresses furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, will be mailed,
delivered, telexed or telecopied and confirmed to it at Unisys Way, Blue Bell,
Pennsylvania 19424, Attention: Treasurer, with a copy to the Chief Financial
Officer.
12
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Certain Definitions. For purposes of this Agreement and the
Terms Agreement, (a) "business day" means any day on which the New York Stock
Exchange is open for trading and (b) "subsidiary" and "significant subsidiary"
have the meanings set forth in Rule 405 of the Rules and Regulations.
12. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
13
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on _________, 20__(1))
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
XXXXXX XXXXXXXXXXX
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from XXXXXX XXXXXXXXXXX, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on __________________, 20__ ("Delivery Date"),]
[$]_____________
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated _________, 20__ and a Prospectus
Supplement dated ____, 20__, relating thereto, receipt of copies of which is
hereby acknowledged, at % of the principal amount thereof plus accrued interest
from _________, 20__, if any, and on the further terms and conditions set forth
in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
------------- ----------------
[$]______
[$]______
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
--------
(1) Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
14
Payment for the Securities that the undersigned has agreed to
purchase for delivery on--the--each--Delivery Date shall be made to the Company
or its order by wire transfer of immediately available funds to a bank account
designated by the Company upon delivery to the undersigned of the Securities to
be purchased by the undersigned--for delivery on such Delivery Date--in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than three full business days
prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below,
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the
15
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is so mailed or
delivered.
Yours very truly,
(Name of purchaser)
By__________________________
(Title of Signatory)
(Address of Purchaser)
Accepted, as of the above date,
XXXXXX XXXXXXXXXXX
By______________
Name:
Title:
16
XXXXX XX (A)
XXXXXX XXXXXXXXXXX
("Company")
Debt Securities
TERMS AGREEMENT
__________, 20__
Xxxxxx Xxxxxxxxxxx
Unisys Way
Blue Bell, Pennsylvania 19424
Attention: Vice President and Treasurer
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions filed as an
exhibit to the Company's registration statement on Form S-3 (No. 333-_)
("Underwriting Agreement"), the following securities ("Securities") to be issued
under an indenture, dated ________, 20__, between the Company and
_______________, as Trustee, on the following terms:
Title: [ %] [Floating Rate] [Senior] [Subordinated] [Notes] [Debentures]
Due _
Principal Amount: [$]
Interest: [ % per annum, from , 20 , payable semiannually on and
commencing , 20 , to holders of record on the preceding or
, as the case may be.]
Maturity: , 20 .
Optional Redemption:
Sinking Fund:
[Period Designated Pursuant to Section 4(f) of the Underwriting Agreement:
__years.]
[Conversion Provisions]:
[Other Terms]
17
Delayed Delivery contracts: [None.] [Delivery Date[s] shall be , 20 .
Underwriters' fee is % of the principal amount of the Contract Securities.]
Purchase Price: % of principal amount, plus accrued interest [, if any,]
from _____, 20 .
Expected Reoffering Price: % of principal amount, subject to change by the
undersigned.
Closing Date: A.M. on , 20 , at
in New York
Federal (same-day) funds.
[Name[s] and Address[es] of Representative[s]:]
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your consent,
amend this offer to add additional Underwriters and reduce the aggregate
principal amount to be purchased by the Underwriters listed in Schedule A hereto
by the aggregate principal amount to be purchased by such additional
Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein by
reference [If appropriate, insert--, except that the obligations and agreements
set forth in Section 7 ("Default of Underwriters") of the Underwriting Agreement
shall not apply to the obligations of the Underwriters to purchase the above
Securities].
The Securities will be made available for checking and packaging at the
office of at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
18
[Please signify your acceptance of the aforegoing by return wire not later
than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of--
themselves--itself--and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By_______________________
Name:
Title:
19
SCHEDULE A
Principal
Underwriter Amount
Total........................................... [$]
=========
To: [Insert name(s) of Representatives or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated ,
20 , relating to [$]_____principal amount of our [Insert title of Securities].
We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement filed as an exhibit to the undersigned's registration
statement on Form S-3 (No. 333-__) ("Underwriting Agreement") are true and
correct, no stop order suspending the effectiveness of the Registration
Statement (as defined in the Underwriting Agreement) or of any part thereof has
been issued and no proceedings for that purpose have been instituted or, to the
knowledge of the undersigned, are contemplated by the Securities and Exchange
Commission and, subsequent to the respective dates of the most recent financial
statements in the Prospectus (as defined in the Underwriting Agreement), there
has been no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
XXXXXX XXXXXXXXXXX
By_________________
Name:
Title:
1
XXXXX XX (B)
XXXXXX XXXXXXXXXXX
("Company")
Equity Securities
TERMS AGREEMENT
_________, 20__
Xxxxxx Xxxxxxxxxxx
Unisys Way
Blue Bell, Pennsylvania 19424
Attention: Vice President and Treasurer
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A hereto and for
their respective accounts, we] [We] offer to purchase, on and subject to the
terms and conditions of the Underwriting Agreement Basic Provisions filed as an
exhibit to the Company's registration statement on Form S-3 (No. 333-_)
("Underwriting Agreement"), the following securities ("Securities") on the
following terms:
Title: [Common Stock] [Preferred Stock, Series ______]
Number of Shares to be issued: [___shares]
[For Preferred Stock:
Voting Rights:
Preferred Stock Dividends: [cash dividends of $ to $ per share payable
quarterly in arrears on _____ __, ______ __, _______ __ and _______ __.]
Optional Redemption:
Mandatory Redemption/Sinking Fund:
Liquidation Preference: [$ per share plus ].
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National
Market System] [American Stock Exchange]
[Period Designated Pursuant to Section 4(f) of the Underwriting Agreement:
__years.]
[Period Designated Pursuant to Section 4(h) of the Underwriting Agreement:
______ days.]
[Conversion Provisions]:
2
[Other Terms]
Price to Public: $____per share
Underwriting Discounts and Commission:
Proceeds to Company:
Over-Allotment Option:
Closing Date: A.M. on , 20 , at
in New York
Federal (same-day) funds.
Name of Transfer Agent and Registrar:
[Name[s] and Address[es] of Representative[s]:]]
[For Common Stock:
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National
Market System] [American Stock Exchange]
[Period Designated Pursuant to Section 4(f) of the Underwriting Agreement:
__years.]
[Period Designated Pursuant to Section 4(h) of the Underwriting Agreement:
______ days.]
[Other Terms]
Price to Public: $____per share
Underwriting Discounts and Commission:
Proceeds to Company:
Over-Allotment Option:
Closing Date: A.M. on , 20 , at
in New York
Federal (same-day) funds.
Name of Transfer Agent and Registrar:
[Name[s] and Address[es] of Representative[s]:]]
3
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the
number of shares to be purchased by the Underwriters listed in Schedule A
hereto by the number of shares to be purchased by such additional
Underwriters.]
The provisions of the Underwriting Agreement are incorporated herein
by reference [If appropriate, insert--, except that the obligations and
agreements set forth in Section 7 ("Default of Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the
Underwriters to purchase the above Securities].
The Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing Date.
[Please signify your acceptance of our offer by signing the enclosed
response to us in the space provided and returning it to us.]
4
[Please signify your acceptance of the aforegoing by return wire not later
than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of--
themselves--itself--and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By_______________
Name:
Title:
5
SCHEDULE A
Number of
Underwriter Shares
----------
Total...........................................
=========
1
To: [Insert name(s) of Representatives or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated , 20 ,
relating to ______shares of our [Insert title of Securities] (the "Terms
Agreement"). We also confirm that, to the best of our knowledge after reasonable
investigation, the representations and warranties of the undersigned in the
Underwriting Agreement Basic Provisions filed as an exhibit to the undersigned's
registration statement on Form S-3 (No. 333-__) (together with the Terms
Agreement, the "Underwriting Agreement") are true and correct, no stop order
suspending the effectiveness of the Registration Statement (as defined in the
Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial position or results of operations of
the undersigned and its subsidiaries except as set forth in or contemplated by
the Prospectus.
Very truly yours,
XXXXXX XXXXXXXXXXX
By_________________
Name:
Title:
1
