EXHIBIT 1.2
XXXXXXX AND BROAD HOME CORPORATION
(a Delaware corporation)
Equity Securities
UNDERWRITING AGREEMENT
_________, 199_
Dear Sirs:
Xxxxxxx and Broad Home Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time (i) shares of common stock of
the Company (the "Common Shares"), (ii) shares of a series of preferred stock
of the Company (the "Preferred Shares") which may be convertible into Common
Shares or (iii) warrants to purchase Common Shares or Preferred Shares (the
"Warrants") which may be sold separately or together with Common Shares. The
Common Shares, the Preferred Shares and the Warrants are hereinafter referred
to as the "Securities". The Securities are registered under the registration
statement referred to below.
Particular issuances or series of the Securities will be sold pursuant to a
Terms Agreement referred to in Section 2 in the form of Annex A attached
hereto, for resale in accordance with the terms of offering determined at the
time of sale. Under such Terms Agreement, subject to the terms and conditions
hereof, the Company will agree to issue and sell, and the firm or firms
specified therein (the "Underwriters") will agree to purchase, the amount of
Securities specified therein (the "Firm Securities"). In such Terms
Agreement, the Company also may grant to such Underwriters, subject to the
terms and conditions set forth therein, an option to purchase additional
Securities in an amount not to exceed the amount specified in such Terms
Agreement (such additional Securities are hereinafter referred to as the
"Option Securities"). The Firm Securities and the Option Securities are
hereinafter collectively referred to as the "Offered Securities".
The representative or representatives of the Underwriters, if any, specified
in the Terms Agreement referred to in Section 2 are hereinafter referred to as
the "Representative(s)"; provided, however, that if the Terms Agreement does
not specify any representative of the Underwriters, the term
"Representative(s)", as used in this Agreement shall mean the Underwriters.
Preferred Shares issued pursuant to the Terms Agreement referred to in Section
2 will be issued in accordance with a Certificate of Designations as specified
in such Terms Agreement (the "Certificate of Designations"). Warrants issued
pursuant to the Terms Agreement referred to in Section 2 will be issued under
a Warrant Agreement (the "Warrant Agreement") between a bank or trust company
selected by the Company as specified in such Terms Agreement (the "Warrant
Agent").
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as follows:
(i) A registration statement (No. 333-_____), including a prospectus,
relating to the Securities has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement referred to in
Section 2, is hereinafter referred to as the "Registration Statement", and the
prospectus included in such Registration Statement, as supplemented as
contemplated by Section 2 to reflect the terms of the Offered Securities and
the terms of offering thereof, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("Rule 424(b)") of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "1933 Act") (the "1933 Act Regulations"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". At the time the Registration Statement became effective, the
Registration Statement complied in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
on the date of each Terms Agreement referred to in Section 2, the Registration
Statement and the Prospectus will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and neither of such
documents will include an 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 (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; provided, however,
that the representations and warranties in this subsection (i) shall not apply
to statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representative(s) expressly
for use in the Registration Statement or the Prospectus.
(ii) Ernst & Young, whose report is incorporated by reference into
the Registration Statement, are independent public accountants with respect to
the Company and with respect to the Company's subsidiaries, in each case as
required by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements included or incorporated by reference
in the Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as at the dates
indicated and the results of operations of the Company and its consolidated
subsidiaries for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles in the United States
applied on a consistent basis; the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein; and the Company's ratios of
earnings to fixed charges and earnings to combined fixed charges and preferred
stock dividends (including the amounts the ratios would have been were
interest on the outstanding collateralized mortgage obligations of the
Company's wholly owned limited purpose financing subsidiaries included in such
ratios' calculation) included in the Prospectus under the caption
"Consolidated Ratios of Earnings to Fixed Charges and of Earnings to Combined
Fixed Charges and Preferred Stock Dividends" in Exhibit 12 to the Registration
Statement have been calculated in compliance with Item 503(d) of Regulation
S-K of the Commission.
(iv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries (which term, as used in this
Agreement, includes without limitation consolidated joint ventures and
partnerships (collectively, the "Joint Ventures") in which the Company is a
participant) considered as one enterprise, whether or not arising in the
ordinary course of business, (B) there have been no transactions entered into
by the Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends in customary amounts per share on the Common Stock of the
Company, there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(v) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries considered
as one enterprise.
(vi) Each subsidiary of the Company (collectively, the
"Subsidiaries") required by the 1933 Act Regulations and the rules and
regulations of the Commission under the Securities Exchange Act of 1934, as
amended (the "1934 Act") (the "1934 Act Regulations") to be listed is listed
in an exhibit to the Company's Annual Report on Form 10-K for the fiscal year
ended November 30, 1995 (the "1995 Annual Report"), which is incorporated by
reference into the Registration Statement. Each Significant Subsidiary (as
defined below) has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
organization, has power and authority to own, lease and operate its properties
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 such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; all of the issued
and outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is owned
(except for directors qualifying shares and a nominal number of shares held by
affiliated parties) by the Company, directly or through one of the other
Subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and all of the outstanding equity interests in
each Significant Subsidiary which is a Joint Venture have been duly authorized
(if applicable) and validly issued, are fully paid and non-assessable and are
owned by the Company (except to the extent that a minority interest in the
Joint Ventures is reflected in the Company's consolidated financial statements
included or incorporated by reference in the Prospectus), directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. For purposes of this Agreement, "Significant
Subsidiaries" means the Subsidiaries and Joint Ventures identified on Annex B
hereto which (A) on the basis of the Company's financial statements as of
November 30, 1995, represented 90% or more of the total assets of the Company
and its Subsidiaries and (B) includes all "significant subsidiaries" of the
Company, as such term is defined in Rule 405 of the 1933 Act Regulations.
(vii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee benefit plans or the
exercise of convertible securities referred to or incorporated by reference in
the Prospectus); the shares of issued and outstanding Common Stock have been
duly authorized and validly issued and are fully paid and non-assessable; and
each of the Common Stock, the Preferred Stock and the Special Common Stock
conforms to the respective statements relating thereto referred to or
incorporated by reference in the Prospectus.
(viii) Neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
inde, or to which any of the property or assets of the
Company or any of the Significant Subsidiaries is subject, which default or
violation would have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and the execution,
delivery and performance of this Agreement and the Terms Agreement, and the
consummation of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder, have
been duly authorized by all necessary corporate action and will not conflict
with or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of the Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of the Significant Subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or assets of the
Company or any of the Significant Subsidiaries is subject, except for a
conflict, breach, default, lien, charge or encumbrance which would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, nor will such action result in any
violation of the provisions of the charter, by-laws or other corresponding
organizational documents of the Company or any of the Significant Subsidiaries
or any applicable law, administrative regulation or administrative or court
order or decree.
(ix) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any
of its Subsidiaries, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which is not so disclosed and
(net of reserves and insurance) the Company believes might result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which might materially
and adversely affect the consummation of this Agreement; all pending legal or
governmental proceedings to which the Company or any Subsidiary is a party or
of which any of their respective property or assets is the subject which are
not described in or incorporated by reference in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate and net of reserves and insurance, not material to
the Company and its subsidiaries considered as one enterprise; and there are
no contracts or documents of the Company or any of its Subsidiaries which are
required to be filed as exhibits to, or incorporated by reference in, the
Registration Statement by the 1933 Act or by the 1933 Act Regulations which
have not been so filed or incorporated by reference.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the issuance
and sale of the Offered Securities hereunder or the consummation by the
Company of any of the other transactions contemplated hereby, except such as
may be required and have been obtained under the 1933 Act and the 1933 Act
Regulations for the Offered Securities and such as may be required under state
securities laws.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and, when read
together with the other information in the Prospectus, at the respective times
the Registration Statement became effective, at the date of the Terms
Agreement and at the Closing Date did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(xiii) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida Act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder (collectively, the
Cuba Act") or is exempt therefrom.
(xiv) There are no holders of securities of the Company with
currently exercisable registration rights who have any securities registered
as part of the Registration Statement or included in the offering contemplated
by this Agreement.
(xv) The Company and each of the Significant Subsidiaries have good
and marketable title to all of their respective properties, in each case free
and clear of all liens, encumbrances and defects, except (i) customary liens
and encumbrances arising in the ordinary course of the Company's construction
and development business and the financing thereof, (ii) as stated or
incorporated by reference in the Prospectus or (iii) such as do not materially
affect the value of such properties in the aggregate to the Company and its
subsidiaries considered as one enterprise and do not materially interfere with
the use made and proposed to be made of such properties.
(xvi) The Company and its Significant Subsidiaries possess such
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct all material
aspects of the business now operated by them, and neither the Company nor any
of its Significant Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate, authority
or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(xvii) No default or event of default with respect to any
Indebtedness (as such term is defined the Prospectus) of the Company or any of
its Significant Subsidiaries entitling, or which, with notice or lapse of time
or both, would entitle, the holders thereof to accelerate the maturity thereof
exists or will exist as a result of the execution and delivery of this
Agreement, the issuance and sale of the Offered Securities or the consummation
of the transactions contemplated hereby or thereby.
(xviii) The Company and each of the Significant Subsidiaries have
filed all tax returns required to be filed, which returns, as amended, are
complete and correct in all material respects, and neither the Company nor any
Significant Subsidiary is in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect to said
returns which would materially and adversely affect the condition, financial
or otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xix) The Company and its Significant Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with management's general or
specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(b) Any certificate signed by any officer of the Company and delivered to the
Representative(s) or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
SECTION 2. Purchase and Offering of Offered Securities. The obligation
of the Company to issue and sell any Firm Securities, the obligation of the
Underwriters to purchase the Firm Securities, and, if applicable, the
Company's granting to the Underwriters of an option to purchase any Option
Securities, will be set forth in a Terms Agreement (the "Terms Agreement")
which shall be in the form of an executed writing (which may be handwritten),
and may be evidenced by an exchange of telegraphic or any other rapid
transmission device designed to produce a written record of communications
transmitted at the time the Company determines to sell the Firm Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the
following: the firm or firms which will be Underwriters; the names of any
Representative(s); the aggregate amount of the Firm Securities, and, if
applicable, the Option Securities; the terms of any option granted by the
Company to the Underwriters to purchase Option Securities; the amount of Firm
Securities to be purchased by each Underwriter; the initial public offering
price of the Offered Securities; the purchase price to be paid by the
Underwriters; and, if the Offered Securities are Preferred Shares or Warrants,
the terms thereof. The Terms Agreement will also specify the place of
delivery and payment for the Offered Securities and any details of the terms
of the offering that should be reflected in the prospectus supplement relating
to the offering of the Offered Securities.
The time and date of delivery and payment of the Firm Securities will be the
time and date specified in the Terms Agreement, or such other time thereafter
as the Representative(s) and the Company agree as the time for payment and
delivery of the Firm Securities (such time and date, being herein and in the
Terms Agreement referred to as the "Firm Closing Date"). The time and date of
delivery and payment of the Option Securities, if any, will be the time and
date specified by the Underwriters as provided in the Terms Agreement, which
may be the Firm Closing Date, but shall not be prior to the Firm Closing Date
(such time and date being herein and in the Terms Agreement referred to as the
"Option Closing Date"). As used herein and in the Terms Agreement, the term
"Closing Date" means, with respect to the Firm Securities, the Firm Closing
Date and, with respect to the Option Securities, the Option Closing Date.
The obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to
offer the Offered Securities for sale as set forth in the Prospectus. The
Offered Securities delivered to the Underwriters on the Closing Date will be
in such denominations and registered in such names as the Underwriters may
request.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter that, in connection with each offering of Offered Securities:
(a) The Company will notify the Representative(s) immediately and confirm the
notice in writing, (i) of the effectiveness of any post-effective amendment to
the Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of the Prospectus or any amendment to the Registration
Statement or amendment or supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act during any period when the Prospectus is
required to be delivered under the 1933 Act, (iii) of the receipt of any
comments or inquiries from the Commission relating to the Registration
Statement or Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose and (vi) of
the issuance by any state securities commission or other regulatory authority
of any order suspending the qualification or the exemption from qualification
of the Securities or Offered Securities under state securities or Blue Sky
laws or the initiation of any proceeding for that purpose. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Company will give the Representative(s) notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment thereto) or any amendment or supplement to the
Prospectus (including any revised prospectus which the Company proposes for
use by the Underwriters in connection with the Offered Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations), will furnish the Representative(s) with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Representative(s) or
counsel for the Underwriters shall reasonably object.
(c) The Company will deliver to the Representative(s) two signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
will also deliver to the Representative(s) as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) as the Representative(s) may reasonably request.
(d) The Company will furnish to each Underwriter, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable
rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in the
opinion of counsel for the Underwriters, to amend or supplement the Prospectus
in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the Company
will forthwith amend or supplement the Prospectus (in form and substance
satisfactory to the Representative(s) and counsel for the Underwriters) so
that, as so amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Underwriters a reasonable number of copies of such
amendment or supplement.
(f) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Offered Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
as the Representative(s) may designate; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. In each jurisdiction in
which the Offered Securities have been so qualified, the Company will file
such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as may be
required by applicable law. The Company will promptly advise the
Representative(s) of the receipt by the Company of any notification with
respect to the suspension of qualification of the Offered Securities for
sale in any state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(g) The Company will make generally available to its security holders as soon
as practicable, but not later than 50 days after the close of the period
covered thereby (or 120 days in the case of the close of the Company's fiscal
year), an earnings statement (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(h) The Company will use the net proceeds received by it from the sale of the
Offered Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(i) Immediately following the execution of the applicable Terms Agreement, the
Company will prepare, and file or transmit for filing copies of the Prospectus
with the Commission in accordance with Rule 424(b).
(j) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, will file all documents required
to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations. For a period of five years after the relevant Closing Date, the
Company will furnish to the applicable Underwriters copies of all reports and
communications delivered to the Company's stockholders or to holders of the
Offered Securities as a class and will also furnish copies of all reports
(excluding exhibits) filed with the Commission on forms 8-K, 10-Q and 10-K,
and all other reports and information furnished to its stockholders generally,
not later than the time such reports are first furnished to its stockholders
generally.
(k) If and to the extent so provided in the applicable Terms Agreement, the
Company, for the period therein provided, will not, directly or indirectly,
sell, contract to sell or otherwise dispose of certain of its securities as
specified in such Terms Agreement.
(l) If and to the extent so provided in the applicable Terms Agreement, the
Company will use its reasonable best efforts to effect the listing of the
Offered Securities on the New York Stock Exchange and to cause the Offered
Securities to be registered under the 0000 Xxx.
(m) The Company will reserve and keep available at all times, free of
preemptive or other similar rights and liens and adverse claims, sufficient
shares of Common Stock to satisfy any obligations to issue shares of Common
Stock upon conversion of any Preferred Stock or exercise of any Warrants that
may be outstanding from time to time.
(n) In accordance with the Cuba Act and without limitation to the provisions
of Sections 6 and 7 hereof, the Company agrees to indemnify and hold harmless
each Underwriter from and against any and all loss, liability, claim, damage
and expense whatsoever (including fees and disbursements of counsel), as
incurred, arising out of any violation by the Company of the Cuba Act.
SECTION 4. Payment of Expenses. The Company will pay the following expenses
incident to the performance of its obligations under this Agreement: (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto; (ii) the printing or reproduction of this Agreement
and the Terms Agreement; (iii) the preparation, issuance and delivery of the
certificates for the Offered Securities to the Underwriters; (iv) the fees and
disbursements of the Company's counsel and accountants; (v) the qualification
of the Offered Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and the legal
investment survey, if any; (vi) the printing and delivery to the Underwriters
of copies of the Registration Statement as originally filed and of each
amendment thereto, of the preliminary prospectuses, and of the Prospectus and
any amendments or supplements thereto; (vii) the printing and delivery to the
Representative(s) of copies of the Blue Sky Survey and the legal investment
survey, if any; (viii) any fees payable in connection with the rating of the
Offered Securities; (ix) any fees payable to the National Association of
Securities Dealers, Inc.; (x) any fees payable to the Commission; and (xi) the
fees and expenses incurred in connection with the listing on the New York
Stock Exchange of the Offered Securities. The Company will not be responsible
for any other expenses, including (without limitation) the fees and
disbursements of counsel for the Underwriters (except as provided in Section
4(v) hereof).
If this Agreement is terminated by the Representative(s) in accordance with
the provisions of Section 5 or Section 9(a)(i), the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Securities on the Firm Closing
Date and the Option Securities on the Option Closing Date will be subject to
the accuracy of the representations and warranties of the Company herein
contained, to the performance by the Company of its obligations hereunder, and
to the following further conditions:
(a) The Prospectus shall have been filed in accordance with the 1933 Act
Regulations and Section 3(i) of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(b) At the Closing Date the Representative(s) shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect (to the extent applicable to the
Offered Securities) that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
(ii) If the Offered Securities are Common Shares, the Common Shares
have been duly authorized and validly issued and, when countersigned by the
transfer agent therefor, and sold to the Underwriters against payment therefor
pursuant to this Agreement and the Terms Agreement, will be validly issued,
fully paid and non-assessable; and the issuance of such Common Shares is not
subject to the preemptive rights of any stockholder of the Company.
(iii) If the Offered Securities are Preferred Shares, the Preferred
Shares have been duly authorized and validly issued and, when countersigned by
the transfer agent therefor and sold to the Underwriters against payment
therefor pursuant to this Agreement an the Terms Agreement, will be validly
issued, fully paid and non-assessable; and the issuance of such Preferred
Shares is not subject to the preemptive rights of any stockholder of the
Company.
(iv) If the Offered Securities are Preferred Shares that are
convertible into Common Shares, the Common Shares have been duly authorized
and reserved for issuance by the Company upon conversion of the Preferred
Shares, and when so issued and countersigned by the transfer agent therefor,
will be validly issued, fully paid and non-assessable; and the issuance of
such Common Shares will not be subject to the preemptive rights of any
stockholder of the Company.
(v) If the Offered Securities are Warrants, the Warrants have been
duly authorized, executed and delivered by the Company and, when countersigned
by the Warrant Agent and sold to the Underwriters against payment therefor
pursuant to this Agreement and the Terms Agreement, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general equitable
principles.
(vi) If the Offered Securities are Warrants, the Warrant Agreement
has been duly authorized, executed and delivered by the Company, and the
Warrant Agreement constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting enforcement of creditors'
rights generally or by general equitable principles.
(vii) If the Offered Securities are Warrants to purchase Common
Shares or Preferred Shares, the Common Shares or Preferred Shares, as the case
may be, have been duly authorized and reserved for issuance by the Company
upon exercise of such Warrants, and when so issued and countersigned by the
transfer agent therefor, will be validly issued, fully paid and
non-assessable; and the issuance of such Common Shares or Preferred Shares
will not be subject to the pre-emptive rights of any stockholder of the
Company.
(viii) The Offered Securities conform in all material respects to the
description thereof contained in the Prospectus.
(ix) The forms of certificates for the Offered Securities conform to
the requirements of the Delaware General Corporation Law.
(x) The information in the Prospectus relating to the description of
the capital stock of the Company and relating to Federal income tax
considerations, to the extent that it constitutes summaries of legal matters
or documents, has been reviewed by such counsel and is correct in all material
respects.
(xi) The execution and delivery of the Terms Agreement (including the
provisions of this Agreement) and any Warrant Agreement and the consummation
of the transactions contemplated therein will not result in any violation of
the provisions of the Certificate of Incorporation or by-laws of the Company,
or any material applicable law, administrative regulation or administrative or
court decree applicable to the Company (except that no opinion need be
expressed with respect to Delaware securities or Blue Sky laws).
(xii) The Registration Statement is effective under the 1933 Act and,
to the best of such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(xiii) The Registration Statement, at the time it became effective,
and the Registration Statement and the Prospectus at the date of the
applicable Terms Agreement (other than the financial statements and supporting
schedules included or incorporated by reference therein, as to which no
opinion need be rendered) complied and complies as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(xiv) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the Company.
(2) The favorable opinion, dated as of the Closing Date, of the General
Counsel or Associate Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(ii) To the best of such counsel's knowledge and information, the
Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(iii) Each of the Company's Significant Domestic Subsidiaries (as
defined below) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and, to the best of such counsel's knowledge and information, is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on the Company and its subsidiaries considered as one
enterprise or on their consolidated financial condition or earnings; to the
best of such counsel's knowledge and information, all of the issued and
outstanding capital stock of each such Significant Domestic Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable
and is owned (except for directors qualifying shares and a nominal number
of shares held by affiliated parties) by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity. As used in this Agreement, the term
"Significant Domestic Subsidiaries" means the Significant Subsidiaries set
forth in Annex B hereto.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus (except for subsequent issuances, if
any, pursuant to reservations, agreements or employee benefit plans or the
exercise of convertible securities referred to or incorporated by reference in
the Prospectus); and the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable.
(v) To the best of such counsel's knowledge and information, there
are no statutes or regulations required to be described in the Registration
Statement or the Prospectus which are not described as required and there are
no legal or governmental proceedings pending or threatened which are required
to be disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or to which any of their property is
subject which are not described in or incorporated by reference in the
Registration Statement, including ordinary routine litigation incidental to
the business, are, considered in the aggregate and net of reserves and
insurance, not material to the Company and its subsidiaries considered as one
enterprise.
(vi) The information under "Item 1. Business--Regulation and
Environmental Matters" in the Company's 1995 Annual Report and in Item 15 in
Part II of the Registration Statement, to the extent that it constitutes
matters of law, summaries of legal matters, summaries of securities,
instruments, agreements or other documents or legal conclusions, has been
reviewed by such counsel and is correct in all material respects.
(vii) To the best of such counsel's knowledge and information, there
are no contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed or incorporated by reference as exhibits thereto
other than those described or referred to or filed as exhibits thereto, the
descriptions thereof or references thereto are correct, and, to the best of
such counsel's knowledge, no default exists in the due performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to or filed or incorporated by reference,
which default could have a material adverse effect or the Company and its
subsidiaries considered as one enterprise or on their consolidated financial
condition or earnings.
(viii) No authorization, approval, consent or order of any court or
governmental authority or agency is required in connection with the sale of
the Offered Securities to the Underwriters, except such as may be required
under the 1933 Act, the 1933 Act Regulations, or state securities laws.
(ix) The issuance and delivery of the Offered Securities, the
execution and delivery of the Terms Agreement (including the provisions of
this Agreement) and the consummation of the transactions contemplated herein
and therein, will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, to the best of such counsel's knowledge
and information, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company, or any applicable law,
administrative regulation or administrative or court decree.
(x) The documents incorporated or deemed to be incorporated by
reference in the Prospectus (other than the financial statements and
supporting schedules included or incorporated by reference therein, as to
which no opinion need be rendered), at the time they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
In giving such opinion, such counsel may rely, as to matters governed by laws
other than the laws of the States of California and Delaware and the federal
law of the United States of America, on an opinion or opinions of local
counsel satisfactory to the Representative(s), so long as each such opinion
shall be dated as of the Closing Date and in form and substance satisfactory
to the Representative(s), and shall expressly permit the Underwriters to rely
thereon as if such opinion were addressed to the Underwriters.
(3) The favorable opinion, dated as of the Closing Date, of counsel for
the Underwriters, with respect to the matters set forth in (iii) through
(viii) and (xii) through (xiv) (but not with respect to any documents
incorporated by reference) of subsection (b)(1) of this Section.
(4) In giving their opinions required by subsections (b)(1), (b)(2) and
(b)(3), respectively, of this Section, Xxxxx Xxxx & Xxxxxxxx, the General
Counsel or Associate Counsel of the Company (as the case may be) and counsel
for the Underwriters shall each additionally state that nothing has come to
their attention that would lead them to believe that the Registration
Statement (except for financial statements and schedules and other financial
data included therein, as to which counsel need make no statement), at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Registration Statement
or the Prospectus (except for financial statements and other financial data
included therein, as to which counsel need make no statement), at the date of
the Terms Agreement, or any such amendment or supplement, as of its date,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were made) not
misleading.
(5) The favorable opinion, dated as of the Closing Date of the Company's
counsel as to matters of French law, which counsel shall be satisfactory to
the Representative(s), and which opinion shall be in form and substance
satisfactory to counsel for the Underwriters, to the effect that each of the
Company's Significant Foreign Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of France,
has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and, to the best of
such counsel's knowledge and information, is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, except where the failure to so
qualify would not have a material adverse effect on the Company and its
subsidiaries considered as one enterprise or on their consolidated financial
condition or earnings; all of the issued and outstanding capital stock of each
such Significant Foreign Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, to the best of such counsel's know
ledge and information, is owned (except for directors qualifying shares and,
in the case of Xxxxxxx and Broad France S.A., a nominal number of shares held
by affiliated parties) by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. As used in this Agreement, the term "Significant Foreign
Subsidiaries" means the Significant Subsidiaries set forth in Annex B hereto.
(c) At the Closing Date, there shall not have been, since the date of the
Terms Agreement, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representative(s) shall
have received a certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting officer of the Company,
dated as of such Closing Date, to the effect that (i) there has been no such
material adverse change; (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though expressly made
at and as of the Closing Date; (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date; (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the best
of such officer's knowledge and information, no proceedings for that purpose
have been initiated or threatened by the Commission; and (v) the rating
assigned by any nationally recognized statistical rating organization to any
debt securities of the Company has not been lowered and no such rating agency
has publicly announced that it has placed any debt securities of the Company
on what is commonly termed a "watch list" for a possible downgrading.
(d) At the time of the execution of this Agreement, the Representative(s)
shall have received from Ernst & Young a letter dated such date, in form and
substance satisfactory to the Representative(s), to the effect that (i) they
are (or were) independent public accountants with respect to the Company and
its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations; (ii) it is their opinion that the consolidated financial
statements and financial statement schedules audited by Ernst & Young and
included in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations; (iii) based upon limited procedures set forth in detail
in such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited condensed consolidated financial statements and
financial statement schedules of the Company and its subsidiaries included in
the Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations or that any material modifications should be made to such
unaudited condensed consolidated financial statements in order for them to be
in conformity with generally accepted accounting principles or (B) at a
specified date not more than five business days prior to the date of this
Agreement, there has been any change in the capital stock or long term debt of
the Company and its consolidated subsidiaries or any decrease in consolidated
net current assets or consolidated shareholders' equity as compared with the
amounts shown in the most recent quarterly balance sheet included in the
Registration Statement or, during the period from the date of the most recent
quarterly financial statements to a specified date not more than five days
prior to the date of this Agreement, there were any decreases, as compared to
the corresponding period in the preceding year, in consolidated net sales or
in the total or per-share amounts of income before extraordinary items of net
income of the Company and its subsidiaries, except in all instances for
changes, increases or decreases that the Registration Statement discloses have
occurred or may occur; and (iv) in addition to the examination referred to in
their opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages, ratios and financial information
which is included in the Registration Statement and Prospectus and which are
specified by the Representative(s), and have found such amounts, percentages,
ratios and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
(e) At the Closing Date, the Representative(s) shall have received from
Ernst & Young a letter, dated as of the Closing Date, to the effect that
they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the specified date referred to
shall be a date not more than five days prior to the Closing Date).
(f) If the listing of the Offered Securities on the New York Stock Exchange is
required under Section 3(c) hereof and the applicable Terms Agreement, the
Offered Securities shall, at the Closing Date, have been approved for listing
on the New York Stock Exchange upon notice of issuance.
(g) At the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Offered Securities
as herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Offered Securities as
herein contemplated shall be satisfactory in form and substance to the
Representative(s) and counsel for the Underwriters.
(h) In the event the Underwriters exercise their option to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Option Closing
Date, and the Representative(s) shall have received:
(i) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and the chief financial or chief accounting
officer of the Company confirming that the certificate delivered at the Firm
Closing Date pursuant to Section 5(c) hereof remains true as of such Option
Closing Date.
(ii) The favorable opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, relating to the Option Secutities and otherwise to the same
effect as the opinion required by Sections 5(b)(1) and 5(b)(4) hereof.
(iii) The favorable opinion of the General Counsel or Associate
Counsel of the Company, in form and substance satisfactory to counsel for the
Underwriters, relating to the Option Securities and otherwise to the same
effect as the opinion required by Sections 5(b)(2) and 5(b)(4) hereof.
(iv) The favorable opinion of counsel for the Underwriters, dated
such Option Closing Date, relating to the Option Securities and otherwise to
the same effect as the opinion required by Sections 5(b)(3) and 5(b)(4)
hereof.
(v) A letter from Ernst & Young in form and substance satisfactory to
the Representative(s) and dated such Option Closing Date, substantially the
same in scope and substance as the letter furnished to the Representative(s)
pursuant to Section 5(e) hereof except that the "specified date" in the letter
furnished pursuant to this Section shall be a date not more than five days
prior to such Option Closing Date.
If any condition specified in this Section shall not have been fulfilled when
and as required to be fulfilled, this Agreement may be terminated by the
Representative(s) by notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof. Notwithstanding any
such termination, the provisions of Sections 4, 6, 7 and 8 shall remain in
effect.
SECTION 6. Indemnification
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel chosen
by the Representative(s)), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that (A) the foregoing indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative(s) expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or Supplement thereto); and (B)
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of the Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased Offered
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as may then be amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if such is required by law, at
or prior to the written confirmation of the sale of such Offered Securities to
such person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability or
expense.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representative(s) expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give written notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount appearing on the cover page
of the Prospectus bears to the initial public offering price appearing thereon
and the Company is responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
ll(f) of the 0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of Officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person,
or by or on behalf of the Company, and shall survive delivery of the Offered
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representative(s) may terminate this Agreement and the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Date (i) if there has been, since the date of this Agreement and the
applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business;
(ii) if there has occurred any material adverse change in the financial
markets in the United States or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make it,
in the judgment of the Representative(s), impracticable to market the Offered
Securities or to enforce contracts for the sale of the Offered Securities;
(iii) if trading in the securities of the Company has been suspended by the
Commission or a national securities exchange, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
Exchanges or by order of the Commission or any other governmental authority,
or if a banking moratorium has been declared by either federal, New York or
California authorities; or (iv) if the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the
Company shall have been lowered or if any such rating agency shall have
publicly announced that it has placed any debt securities of the Company on
what is commonly termed a "watch list" for a possible downgrading.
(b) If this Agreement and the applicable Terms Agreement are terminated
pursuant to this Section, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
Notwithstanding any such termination, the provisions of Sections 4, 6, 7 and 8
shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If any one or more
Underwriters shall fail to purchase and pay for any of the Offered Securities
agreed to be purchased by such Underwriter or Underwriters under this
Agreement and the applicable Terms Agreement and such failure to purchase
shall constitute a default in the performance of its or their obligations
under this Agreement, the Representative(s) may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons
(including any of the Underwriters) but if no arrangements are made by the
Closing Date the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Offered
Securities set forth opposite their names in the Terms Agreement bear to the
aggregate amount of Offered Securities set opposite the names of all the
remaining Underwriters) the Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event the aggregate amount of Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10 percent of the aggregate amount of Offered Securities set forth
in such Terms Agreement, the Representative(s) may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by
other persons (including any of the Underwriters) but if no arrangements
are made by the Closing Date the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Offered Securities, and if such non-defaulting Underwriters do
not purchase all the Offered Securities, this Agreement will terminate
without liability to any non-defaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this Section 10, the
Closing Date shall be postponed for such period, not exceeding seven days,
as the Representative(s) shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
and any non-defaulting Underwriter for damages occasioned by its default
hereunder.
SECTION 11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative(s) at ________________,
attention of ___________________; notices to the Company shall be directed to
it at 00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of
Xxxxxxx X. Xxxx, Senior Vice President.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement shall
inure to the benefit of and be binding upon the Underwriters and the Company
and their respective successors. Nothing expressed or mentioned in this
Agreement or such Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Underwriters and the Company
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the applicable Terms Agreement or any provision
herein or therein contained. This Agreement and such Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Offered Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Unless otherwise set forth
herein, specified times of day refer to New York City time.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
XXXXXXX AND BROAD HOME
CORPORATION
By:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[NAMES OF UNDERWRITERS]
By: [Representative(s)]
By:
Name:
Title:
For itself and as Representative(s) of the other
Underwriters.
ANNEX A
XXXXXXX AND BROAD HOME CORPORATION
(a Delaware Corporation)
Equity Securities
TERMS AGREEMENT
_______, 199_
[Names and Addresses of
Representatives]
Dear Sirs:
Xxxxxxx and Broad Home Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated ________, 19__ (the "Underwriting
Agreement"), between the Company on the one hand and ___________, on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the securities specified in Schedule II hereto (the
"Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to
the Prospectus in Section 1 of the Underwriting Agreement shall be deemed to
be a representation and warranty as of the date of the Underwriting Agreement
in relation to the Prospectus (as therein defined) and also a representation
and warranty as of the date of this Terms Agreement in relation to the
Prospectus as amended or supplemented relating to the Securities which are the
subject of the Terms Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein
defined. The Representatives designated to act on behalf of each of the
underwriters of Securities are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters' and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule II
hereto, the amount of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
[Subject to the terms and conditions set forth herein and in the
Terms Agreement, the Company hereby grants an option to the Underwriters,
severally and not jointly, to purchase in the aggregate up to the number of
Option Securities set forth on Schedule II at the same purchase price as shall
be applicable to the Firm Securities. The Option hereby granted will expire _
days after the date hereof and may be exercised, in whole or in part at one
time, only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Firm Securities. Such
option may be exercised upon written notice by you to the Company setting
forth the number of Option Securities as to which the several Underwriters are
exercising the option and the Option Closing Date. If the option is exercised
as to all or any portion of the Option Securities, the Option Securities as to
which the option is exercised shall be purchased by each Underwriter,
severally and not jointly, in the proportion that the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I bears
to the total number of Firm Securities, subject to such adjustments as you, in
your discretion, shall make to eliminate any sales or purchases of fractional
Offered Securities. No Option Securities shall be sold or delivered unless
the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Option Securities or any portion thereof
may be surrendered and terminated at any time before the exercise thereof upon
written notice by the Representatives to the Company.]
If the foregoing is in accordance with your understanding, please
sign and return to us ________ counterparts hereof, and upon acceptance hereof
by you, on behalf of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be supplied to the Company upon request.
Very truly yours,
XXXXXXX AND BROAD HOME CORPORATION
By________________________
Name:
Title:
Accepted as of the date hereof:
By: _________________________
On behalf of each of the Underwriters
SCHEDULE I
Amount of Designated
Firm Securities
Underwriter to be Purchased
--------------------------------- ----------------------
__________
Total............................
======================
SCHEDULE II
Title of Securities:
Aggregate amount of Firm Securities:
Aggregate amount of Option Securities:
Price to Public:
$_________
Purchase Price by Underwriters:
$________
Specified funds for payment of purchase price:
If the Securities are Preferred Shares, the terms of such
Preferred Shares are as follows:
Designation:
Date of Certificate of Designations:
Dividend Rate or Amount:
Dividend Payment Dates:
Conversion Rights:
Ranking:
Liquidation Rights:
Redemption Provisions:
Sinking Fund Provisions:
Voting Right Provisions:
If the Securities are Warrants, the terms thereof are as
follows:
Warrant Agent:
Warrant Agreement:
Warrant Agreement dated as of ________, 19__, between the Company
and the Warrant Agent.
Exercise Price:
Expiration Date:
Terms of Exercise:
Firm Closing Date:
[Time and date], 19 _
Closing Location:
Black Out Period:
Names and addresses of Representatives:
Listings(s):
Address for Notices, etc.:
Other Terms:
ANNEX B
XXXXXXX AND BROAD HOME CORPORATION
List of Significant Subsidiaries
(including Significant Foreign Subsidiaries)
