Exhibit 1(b)
XXXXXX XXXXXX CORPORATION
[$____ DEPOSITARY SHARES
Each Representing [One Quarter] Share of]
CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES __
(par value $.01 per share)
UNDERWRITING AGREEMENT
[Date]
________, ____
[Names and Addresses of
Representatives]
Dear Sirs:
Xxxxxx Xxxxxx Corporation, a Minnesota corporation (the "Company"),
proposes to issue up to _________ shares of its Cumulative [Convertible]
Preferred Stock, Series __, par value $.01 per share, (the "[Convertible]
Preferred Shares"), of which __________ [Convertible] Preferred Shares would be
issued in connection with the sale of the Firm Shares (as hereinafter defined)
and up to _______ [Convertible] Preferred Shares would be issued in connection
with any sale of Additional Shares (as hereinafter defined).
[The [Convertible] Preferred Shares will, when issued, be deposited by
the Company against delivery of Depositary Receipts ("Depositary Receipts") to
be issued by [_____________________], as depositary (the "Depositary"), under a
Deposit Agreement (the "Deposit Agreement") among the Company, the Depositary
and the holders from time to time of the Depositary Receipts issued thereunder.
Each Depositary Receipt will evidence one or more Depositary Shares (as
hereinafter defined), and each Depositary Share will represent [one-quarter] of
a [Convertible] Preferred Share.]
[The Convertible Preferred Shares are convertible by the holders
thereof into shares of common stock, par value $1.00 per share, of the Company
(the "Common Stock"), all as described in the Prospectus referred to below.]
The Company proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives") _________ of the [[Convertible]
Preferred Shares] [Depositary Shares] (the "Firm Shares"). The Company also
proposes to issue and sell to the several Underwriters not more than an
additional ___________ of the [[Convertible] Preferred Shares] [Depositary
Shares] (the "Additional Shares") if and to the extent that the Representatives
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such [[Convertible] Preferred Shares] [Depositary Shares] granted to
the Underwriters in Article II hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the "[Depositary] Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus, relating (among other securities) to the [Convertible] Preferred
Shares [and][,] [the Depositary Shares] [and
the shares of Common Stock issuable upon conversion of the Convertible Preferred
Shares], which registration statement has become effective, and will promptly
file with the Commission a prospectus supplement specifically relating to the
[Convertible] Preferred Shares [and][,] [the Depositary Shares] [and the Common
Stock issuable upon conversion of the Convertible Preferred Shares] pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Act"). As used in
this Agreement, the term "Registration Statement" means such registration
statement, including exhibits, financial statements, schedules and documents
incorporated by reference therein, as amended to the date hereof. The term
"Basic Prospectus" means the prospectus included in the Registration Statement.
The term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the [Convertible] Preferred Shares [and][,]
[the Depositary Shares] [and the Common Stock issuable upon conversion of the
Convertible Preferred Shares] as filed with the Commission pursuant to such Rule
424. The term "preliminary prospectus" means any preliminary prospectus
supplement specifically relating to the [Convertible] Preferred Shares [and][,]
[the Depositary Shares] [and the Common Stock issuable upon conversion of the
Convertible Preferred Shares] together with the Basic Prospectus. Any reference
herein to any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein as of the date of
such preliminary prospectus or the Prospectus, as the case may be.
I.
The Company represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect; and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Minnesota, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(c) Each of [_____________________] (the "Significant Subsidiaries")
has been duly organized and is a validly existing corporation under the laws of
the state of its incorporation, and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
-2-
(d) All of the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and non-assessable, and all outstanding shares of such capital stock are owned
directly or indirectly by the Company free and clear of any security interests,
claims, liens or encumbrances.
(e) The authorized capital stock of the Company [,] [and] the
[Depositary] Shares [, the Depositary Receipts and the Deposit Agreement]
conform as to legal matters to the descriptions thereof contained in the
Prospectus.
[(f) The shares of Common Stock outstanding prior to the issuance of
the Convertible Preferred Shares [represented by the Depositary Shares] to be
sold by the Company have been duly and validly authorized and issued and are
fully paid and non-assessable.]
(g) The [Convertible] Preferred Shares [, and the deposit of
[Convertible] Preferred Shares by the Company in accordance with the Deposit
Agreement,] have been duly authorized and, when the [Convertible] Preferred
Shares are issued and delivered in accordance with the terms of this Agreement,
the [Convertible] Preferred Shares will be validly issued, fully paid and non-
assessable, and the issuance of such [Convertible] Preferred Shares is not
subject to any preemptive or similar rights.
[(h) The shares of Common Stock issuable upon conversion of the
Convertible Preferred Shares have been duly authorized and reserved for issuance
upon such conversion, and, if and when the Convertible Preferred Shares are
converted into shares of Common Stock in accordance with the Certificate of
Designation, Preferences and Rights relating to the Convertible Preferred Shares
(the "Certificate of Designations"), such shares of Common Stock will be validly
issued, fully paid and non assessable, and the issuance of such shares of Common
Stock will not be subject to any preemptive or similar rights.]
[(i) Assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, each Depositary Share will represent an interest in
[one-quarter] of a validly issued, outstanding, fully paid and non-assessable
[Convertible] Preferred Share; assuming due execution and delivery of the
Depositary Receipts by the Depositary pursuant to the Deposit Agreement, the
Depositary Receipts will entitle the holders thereof to the benefits provided
therein and in the Deposit Agreement.]
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
[(k) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company.]
(l) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Certificate of
Designation [, Preferences
-3-
and Rights relating to the Preferred Shares (the "Certificate of Designations")]
[and the Deposit Agreement] will not contravene any provision of applicable law
or the articles of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval or authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement [,] [and]
the Certificate of Designations [and the Deposit Agreement], except such as have
been obtained under the Act and such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
[Depositary] Shares.
(m) There has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(n) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required.
(o) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain and each such part,
as amended or supplemented, if applicable, will not contain, any 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, (iii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact
-4-
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph (p)
do not apply to statements or omissions in the Registration Statement or the
Prospectus based upon information concerning any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
II.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto at $_____ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _______ Additional
Shares at the Purchase Price. Additional Shares may be purchased as provided in
Article IV hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Additional Shares are
to be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same
proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares set forth in Schedule I
hereto.
[The Company hereby agrees that, without the prior written consent
of the Representatives, it will not file any registration statement with the
Commission in respect of any shares of Common Stock of the Company or offer,
sell, contract to sell or otherwise dispose of any shares of such Common Stock
or any securities convertible into or exercisable or exchangeable for such
Common Stock for a period of ______ days after the date of this Agreement, other
than (i) the Convertible Preferred Shares, (ii) the shares of Common Stock
issuable upon conversion of the Convertible Preferred Shares, (iii) any shares
of such Common Stock sold upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (iv) any shares of such
Common Stock registered, offered or issued, or options in respect of such Common
Stock granted, in connection with any employee benefit plans of the Company or
any of its subsidiaries (including employee benefit plans assumed by the Company
or any of its subsidiaries in connection with an acquisition by the Company), or
(v) any shares of such Common Stock registered, offered or issued in connection
with an acquisition by the Company.]
-5-
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the [Depositary] Shares as soon
after this Agreement has been entered into as in your judgment is advisable.
The Company is further advised by you that the [Depositary] Shares are to be
offered to the public initially at $______ per [Depositary] Share (the public
offering price) plus accrued dividends, if any, and to certain dealers selected
by you at a price that represents a concession not in excess of $.____ per
[Depositary] Share under the public offering price, and that the Underwriters
may allow, and such dealers may reallow, a concession, not in excess of $.____
per [Depositary] Share, to any Underwriter or to certain other dealers.
IV.
Delivery of the Firm Shares shall be made, against payment therefor in
immediately available funds, at the office of _____________________________,
_____________________, New York, New York, at 10:00 A.M., local time, on
___________, ___, or at such other time on the same or such other date, not
later than ____________, ____, as shall be designated in writing by you. The
time and date of such delivery and payment are hereinafter referred to as the
Closing Date.
Delivery of any Additional Shares shall be made, against payment
therefor in immediately available funds, at the office of
______________________, _______________, New York, New York, at 10:00 A.M.,
local time, on such date (which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date nor later than ten business days after
the giving of the notice hereinafter referred to) as shall be designated in a
written notice from the Representatives to the Company of their determination,
on behalf of the Underwriters, to purchase a number, specified in said notice,
of Additional Shares, or on such other date, in any event not later than
_____________, ____, as shall be designated in writing by the Representatives.
The time and date of such delivery and payment are hereinafter referred to as
the Option Closing Date. The notice of the determination to exercise the option
to purchase Additional Shares and of the Option Closing Date may be given at any
time within 30 days after the date of this Agreement.
Payment for the Firm Shares and Additional Shares shall be made
against delivery to you on the Closing Date or the Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters of
[Depositary Receipts] [certificates] evidencing the Firm Shares or Additional
Shares, as the case may be, registered in such names and in such denominations
as you shall request in writing not later than two full business days prior to
the Closing Date or the Option Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer of the [Depositary]
Shares to the Underwriters duly paid.
-6-
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) There shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus, that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
market the [Depositary] Shares on the terms and in the manner contemplated in
the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in clause (a) above and to the effect that the
representations and warranties of the Company contained in this Agreement shall
be true and correct as of the Closing Date and the Company shall have performed
all of its obligations to be performed hereunder on or prior to the Closing
Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Xxxxx X.
Xxxx, Esq., Senior Vice President and General Counsel of the Company, dated the
Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Minnesota,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(ii) each Significant Subsidiary has been duly organized and is
validly existing as a corporation under the laws of the state of its
incorporation, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of the business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(iii) all the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued and
are fully paid and
-7-
non-assessable, and all outstanding shares of such
capital stock are owned directly or indirectly by the Company free and
clear of any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the authorized capital stock of the Company [,] [and] the
[Depositary] Shares [, the Depositary Receipts and the Deposit Agreement]
conform as to legal matters to the descriptions thereof contained in the
Prospectus;
[(v) the shares of Common Stock outstanding prior to the issuance
of the Convertible Preferred Shares have been duly and validly authorized
and are issued and are fully paid and non-assessable;]
(vi) the [Convertible] Preferred Shares [, and the deposit of
[Convertible] Preferred Shares by the Company in accordance with the
Deposit Agreement,] have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, the [Convertible]
Preferred Shares will be validly issued, fully paid and non-assessable, and
the issuance of such [Convertible] Preferred Shares is not subject to any
preemptive or similar rights;
[(vii) the shares of Common Stock issuable upon conversion of
the Convertible Preferred Shares have been duly authorized and reserved for
issuance upon such conversion, and, if and when the Convertible Preferred
Shares are converted into shares of Common Stock in accordance with the
Certificate of Designations, such shares of Common Stock will be validly
issued, fully paid and non-assessable, and the issuance of such shares of
Common Stock will not be subject to any preemptive or similar rights;]
[(viii) assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary, each Depositary Share will
represent an interest in [one-quarter] of a validly issued, outstanding,
fully paid and non-assessable [Convertible] Preferred Share; assuming due
execution and delivery of the Depositary Receipts by the Depositary
pursuant to the Deposit Agreement, the Depositary Receipts will entitle the
holders thereof to the benefits provided therein and in the Deposit
Agreement;]
(ix) this Agreement has been duly authorized, executed and
delivered by the Company;
[(x) the Deposit Agreement has been duly authorized and delivered
by the Company and is a valid and binding agreement of the Company;]
(xi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement [,]
[and] the Certificate of Designations [and the Deposit Agreement] will not
contravene any provision of applicable
-8-
law or the articles of incorporation
or by-laws of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval or authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement [,] [and] the Certificate of
Designations [and the Deposit Agreement], except such as have been obtained
under the Act and such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale of the
[Depositary] Shares by the Underwriters;
(xii) the statements (y) in the Basic Prospectus under
"Description of Preferred Stock" [, "Description of Depositary Shares"],
["Description of Common Stock",] and "Plan of Distribution" and (x) in the
prospectus supplement specifically relating to the [Convertible] Preferred
Shares [and][,] [the Depositary Shares] [and the Common Stock issuable upon
conversion of the Convertible Preferred Shares] under "Description of
Capital Stock", ["Description of Depositary Shares"] and "Underwriters",
and (z) in the Registration Statement in Item 15, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(xiii) after due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required; and
(xiv) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference in
the Registration Statement and the Prospectus (except for financial
statements and schedules as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects with
the Exchange Act and the rules and regulations of the Commission
thereunder, (2) is of the opinion that the Registration Statement and the
Prospectus and any supplements or amendments thereto (except for financial
statements and schedules as to which such counsel need not express any
opinion) comply as to form in all material respects with the Act and the
rules and regulations of the Commission thereunder and (3) believes that
(except for financial statements and schedules as to which such counsel
need not express any belief) the Registration Statement and the Prospectus,
as amended or supplemented, if
-9-
applicable, included therein at the time the
Registration Statement became effective did not contain any 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 and the Prospectus, as amended or supplemented, if applicable,
does not contain 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.
(d) You shall have received on the Closing Date an opinion of
____________________________, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (vi), (vii), (viii),
(ix) and (xii) [(but only as to the statements (A) in the Basic Prospectus under
"Description of Preferred Shares", ["Description of Depositary Shares"],
"Description of Common Stock" and "Plan of Distribution", and (B) in the
prospectus supplement specifically relating to the [Convertible] Preferred
Shares [and[,] [the Depositary Shares] [and the Common Stock issuable upon
conversion of the Convertible Preferred Shares] under "Description of Capital
Stock", ["Description of Depositary Shares"] and "Underwriters") and clauses (2)
and (3) of (xiv) of paragraph (c) above.
With respect to subparagraph (xiv) of paragraph (c) above, Xxxxx X.
Xxxx, Esq. may state that his opinion and belief are based on his participation
in the preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to clauses
(2) and (3) of subparagraph (xiv) of paragraph (c) above, _________________ may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and the Prospectus and any amendments
of supplements thereto (other than the documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but are without independent check
or verification, except as specified.
(e) You shall have received on the date of this Agreement a letter
dated such date and also on the Closing Date a letter dated the Closing Date, in
each case in form and substance satisfactory to you, from Ernst & Young LLP,
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representatives on the
Option Closing Date of such documents as the Representatives may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Additional Shares and other matters related to the issuance
of the Additional Shares.
-10-
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, one signed copy of the
Registration Statement (including exhibits thereto and documents incorporated
therein by reference) and to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto but including documents
incorporated therein by reference) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated therein
by reference and any supplements and amendments thereto as you may reasonably
request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or supplement,
and to file no such proposed amendment or supplement to which you reasonably
object.
(c) If, during such period after the first date of the public offering
of the [Depositary] Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense (unless
the amendment or supplement is required as a result of the act or omission of
any Underwriter, in which case such Underwriter(s) shall reimburse the Company
for its reasonable expenses incurred to effect the amendment or supplement), to
the Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which [Depositary] Shares may have been sold by you on behalf
of the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(d) To cooperate with the Underwriters to qualify the [Depositary]
Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all reasonable expenses
(including reasonable fees and disbursements of counsel) in connection therewith
as well as all fees payable in connection with the review (if any) of the
offering of the [Depositary] Shares by the National Association of Securities
Dealers, Inc.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
ending ____________, ____, that satisfies the provisions of Section 11(a) of the
Act and the rules and regulations of the Commission thereunder.
-11-
[(f) To endeavor to list the [Depositary] Shares on the New York Stock
Exchange.]
VII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Underwriters
furnished to the Company in writing by any Underwriter through you expressly for
use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the indemnifying
party) in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any
-12-
local counsel) for all such indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of Underwriters,
such firm shall be designated in writing by ___________________________. In the
case of any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first or second paragraph
of this Article VII is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of the
[Depositary] Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and of the Underwriters in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the [Depositary] Shares. The relative fault of the Company
and the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
-13-
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the [Depositary] Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that 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 to contribute
pursuant to this Article VII are several, in proportion to the respective number
of Firm Shares to be purchased by each of such Underwriters as set forth
opposite each Underwriter's name in Schedule I hereto plus any additional Firm
Shares which such Underwriter may become obligated to purchase under this
Agreement or the Agreement Among Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article
VII and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Depositary Shares.
VIII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i)
-14-
through (iv), such event singly or together with any other such event makes it,
in your judgment, impracticable to market the [Depositary] Shares on the terms
and in the manner contemplated in the Prospectus.
IX.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase
[Depositary] Shares that it or they have agreed to purchase hereunder on such
date, and the aggregate number of [Depositary] Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the [Depositary] Shares to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the number of Firm Shares set forth opposite their
respective names in Schedule I bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the [Depositary] Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of
[Depositary] Shares that any Underwriter has agreed to purchase pursuant to
Article II be increased pursuant to this Article IX by an amount in excess of
one-ninth of such number of [Depositary] Shares without the written consent of
such Underwriter. If, on the Closing Date, or the Option Closing Date, as the
case may be, any Underwriter or Underwriters shall fail or refuse to purchase
[Depository] Shares and the aggregate number of [Depositary] Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
[Depositary] Shares to be purchased on such date, and arrangements satisfactory
to you and the Company for the purchase of such [Depositary] Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date or the Option Closing Date, as the case may be, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
-15-
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
-16-
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
XXXXXX XXXXXX CORPORATION
By
------------------------------------
Its
--------------------------------
Accepted,
-------, ----
By
---------------------------
Its
------------------------
------------------------------
By
---------------------------
Its
------------------------
Each acting severally on behalf
of itself and the several
Underwriters named herein.
-17-
SCHEDULE I
Number of
Underwriter [Depositary] Shares
-------------------------------
Total
