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Exhibit B-1
[NAME OF ISSUER]
COMMON STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
[NAME OF ISSUER]
STANDARD PURCHASE PROVISIONS -
COMMON STOCK
From time to time, [Name of Issuer], a corporation organized and
existing under the laws of the State of Delaware (the "Company") may enter into
purchase agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth herein
may be incorporated by reference in any such purchase agreement (the "Purchase
Agreement"). The Purchase Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as "this Agreement." The
term "Common Stock" shall mean the Common Stock of the Company. Unless otherwise
defined herein, terms defined in the Purchase Agreement are used herein as
therein defined.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission thereunder (collectively called the "Act"),
with the Securities and Exchange Commission (the "Commission"), a registration
statement on Form S-3 (including a prospectus), relating to the Company's Common
Stock, which pursuant to Item 12 of Form S-3 incorporates by reference documents
which the Company has filed in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively called the "Exchange Act"). Such registration statement has been
declared effective by the Commission. Promptly upon the
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execution of this Agreement, the Company will prepare a prospectus supplement
relating to the Common Stock to be sold by the Company pursuant to the
applicable Purchase Agreement (the "Prospectus Supplement"). The Company has
furnished to you, for use by the Underwriters (as defined herein) and dealers,
copies of one or more preliminary prospectuses and the documents so incorporated
therein (each thereof, including the documents so incorporated therein, is
herein called the "Preliminary Prospectus"). The terms Registration Statement
and Prospectus shall have the meanings ascribed to them in the Purchase
Agreement.
1. Introductory. The Company proposes to issue and sell from time to time
Common Stock registered under the Registration Statement. The shares of
Common Stock involved in any such offering are hereinafter referred to
as the "Shares," and the firm or firms, as the case may be, which agree
to purchase the same are hereinafter referred to as the "Underwriters"
of the Shares. The terms "you" and "your" refer to those Underwriters
who sign the Purchase Agreement either on behalf of themselves only or
on behalf of themselves and as representatives of the several
Underwriters named in Schedule A thereto, as the case may be. Shares to
be purchased by Underwriters are herein referred to as "Underwriters'
Shares," and any Shares to be purchased pursuant to Delayed Delivery
Contracts (as defined below) as hereinafter provided are herein referred
to as "Contract Shares."
2. Delivery and Payment. The Company will deliver the certificates for the
Shares to you for the accounts of the Underwriters at the place
specified in the Purchase Agreement, against payment of the purchase
price by wire transfer of immediately available funds (as agreed to by
the parties and specified in the Purchase Agreement), at the time set
forth in this Agreement or at such other time not later than seven full
business days thereafter as you and the Company determine, such time
being herein referred to as the "time of purchase." Unless otherwise
provided for in the Purchase Agreement, the certificates for the
Underwriters' Shares so to be delivered will be in such denominations
and registered in such names as you request in writing not later than
10.00 A.M.,(1) on the third business day prior to the time of purchase,
or, if no such request is received, in the names of the respective
Underwriters in the denominations agreed to be purchased by them
pursuant to this Agreement. For the purpose of expediting the checking
of the certificates for the Underwriters' Shares, the Company agrees to
make such certificates available to you at the place specified in the
Purchase Agreement registered in such names and denominations as you
shall have requested not later than 10.00 A.M. on the first business day
preceding the time of purchase.(2)
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(1) As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
(2) Times mentioned herein are New York City Time
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If any Purchase Agreement provides for sales of Shares pursuant to
delayed delivery contracts, the Company ___________________ authorizes
the Underwriters to solicit offers to purchase Contract Shares pursuant
to delayed delivery contracts substantially in the form of Schedule I
attached hereto (the "Delayed Delivery Contracts") with such changes
therein as the Company may approve. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies, and
educational and charitable institutions. At the time of purchase the
Company will pay you as compensation, for the accounts of the
Underwriters, the compensation set forth in such Purchase Agreement in
respect of the principal amount of Contract Shares. The Underwriters
will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and
delivers Delayed Delivery Contracts, the Contract Shares shall be
deducted from the Shares to be purchased by the several Underwriters and
the aggregate principal amount of Shares to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal
amount of Shares set forth opposite each Underwriter's name in such
Purchase Agreement, except to the extent that you determine that such
reduction shall be otherwise allocated and so advise the Company.
3. Certain Covenants of the Company. The Company agrees:
a) As soon as possible after the execution and delivery of this
Agreement to file, or mail for filing, the Prospectus with the
Commission pursuant to its Rule 424 under the Act and, if and when
required at any time after such execution and delivery, to file
amendments to the applications the Company has previously filed
with any state regulatory agencies having jurisdiction to govern
the Company's issuance of its securities setting forth, among other
things, the necessary information with respect to the price and the
terms of the Shares and the terms of offering of the Shares;
b) To file no amendment or supplement to the Registration Statement or
prospectus (other than a required filing under the Exchange Act)
subsequent to the execution of this Agreement and prior to the time
of purchase to which you object in writing;
c) To furnish such proper information as may be required and otherwise
to cooperate in qualifying the Shares for sale under the laws of
such jurisdictions as you may designate and in determining their
eligibility for investment under the laws of such jurisdictions;
provided that the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction;
d) To the extent not previously furnished to you, to furnish to you
two signed copies of the Registration Statement, as initially filed
with the Commission, of all amendments thereto, and of all
documents incorporated by reference therein (including all exhibits
filed therewith,
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other than exhibits which have previously been furnished to you),
two signed copies of each consent and certificate of independent
accountants and of each other person who by his profession gives
authority to statements made by him and who is named in the
Registration Statement as having prepared, certified or reviewed
any part thereof, and to furnish to you sufficient unsigned copies
of the foregoing (other than exhibits, including consents filed as
exhibits, to the Registration Statement) for distribution of a copy
to you and to each of the other Underwriters;
e) To deliver to the Underwriters without charge in New York City as
soon as practicable after the execution and delivery of this
Agreement and thereafter from time to time to furnish to the
Underwriters, without charge, as many copies of the Prospectus in
final form and any documents incorporated by reference therein at
or after the date thereof (or as amended or supplemented, if the
Company shall have made any amendment or supplement after the
effective date of the Registration Statement) as you or the
respective Under-writers may reasonably request for the purposes
contemplated by the Act;
f) To advise you promptly (confirming such advice in writing) of any
official request made by the Commission for amendments to the
Registration Statement or Prospectus or for additional information
with respect thereto, or of official notice of institution of
proceedings for, or the entry of, a stop order suspending the
effective ness of the Registration Statement and, if such order
should be entered by the Commission, to make every reasonable
effort to obtain the lifting or removal thereof as soon as
possible, or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose;
g) To apply the net proceeds from the sale of the Shares in the manner
set forth in the Prospectus;
h) To furnish to you during a period of five years from the time of
purchase (i) as soon as practicable after the end of each fiscal
year, a copy of its annual report to shareholders for such year,
(ii) from time to time, copies of any reports or other
communications which it shall file with the Commission or any
governmental agency substituted therefor under the Exchange Act or
sent to its public stockholders, or holders of the Shares, and
(iii) such other information as you may from time to time
reasonably request regarding the financial condition and operations
of the Company;
i) To furnish to any other Underwriter copies of such of the financial
statements, reports or other information referred to in the
foregoing subparagraphs (h)(i) and (ii) as such Underwriter may,
from time to time during the period you are entitled to receive
them, request;
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j) To advise the Underwriters of the happening of any event known to
the Company within the time during which a prospectus relating to
the Shares is required to be delivered under the Act which, in the
judgment of the Company, would require the making of any change in
the Prospectus or any amended or supplemented Prospectus or in the
information incorporated by reference therein so that as thereafter
delivered to purchasers such 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 under which they were made, not misleading, and
on request to prepare and furnish to the Underwriters and to
dealers and other persons designated by you such amendments or
supplements (including appropriate filings under the Exchange Act)
to the Prospectus as may be necessary to reflect any such change,
provided that the Company shall be so obligated only so long as the
Company is notified of unsold allotments (failure by the
Underwriters to so notify the Company cancels the Company's
obligation under this Section 3(j));
k) As soon as practicable, to make generally available to its security
holders an earnings statement (as contemplated by Rule 158 under
the Act) covering a period of twelve months after the effective
date of the Registration Statement;
l) To pay the fees and expenses of counsel for the Underwriters, and
to reimburse the Underwriters for their reasonable out-of-pocket
expenses incurred in contemplation of the performance of this
Agreement, in the event that the Shares are not delivered to and
taken up and paid for by the Underwriters hereunder for any
reason whatsoever except the failure or refusal of any
Underwriter to take up and pay for Shares for some reason not
permitted by the terms of this Agreement, the Underwriters
agreeing to pay the fees and expenses of counsel for the
Underwriters in any other event;
m) To pay all expenses, fees and taxes (other than transfer taxes and
fees and disbursements of counsel for the Underwriters except as
set forth under 3(1) above or (iv) below) in connection with (i)
the preparation and filing of the Registration Statement, each
Preliminary Prospectus and the Prospectus, any documents
incorporated by reference therein at or after the date thereof and
any amendments or supplements thereto, and the printing or
reproduction and furnishing of copies of each thereof to the
Underwriters and to dealers, (ii) the issue, sale and delivery of
the Shares, (iii) the printing or reproduction of this Agreement
and the opinions and letters referred to in Section 4(a) hereof,
(iv) the qualification of the Shares for sale and determination of
their eligibility for investment under state laws as aforesaid,
including the reasonable legal fees and all filing fees and
disbursements of counsel for the Underwriters and all other filing
fees,
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and the printing or reproduction and furnishing of copies of the
"Blue Sky Survey" and the "Legal Investment Survey" to the
Underwriters and to dealers, (v) the rating of the Shares by
national rating agencies and (vi) the performance of the Company's
other obligations hereunder;
n) To furnish to you as early as practicable prior to the time of
purchase, but no later than two business days prior thereto, a copy
of the latest available unaudited interim consolidated financial
statements, if any, of the Company which have been read by the
Company's independent public accountants as stated in their letter
to be furnished pursuant to Section 4(a) of this Agreement; and
o) If a public offering of the Shares is to be made, not to offer or
sell any of its Common Stock prior to thirty days after the time of
purchase without your consent (except pursuant to employee benefit
or dividend reinvestment plans).
4. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the following conditions:
a) That, at the time of purchase, you shall receive the signed
opinions of counsel for the Company and counsel for the
Underwriters, substantially in the forms heretofore furnished to
you, addressed to the Underwriters (with reproduced or conformed
copies thereof for each of the other Underwriters); and that, at
the time of purchase, you shall receive the signed letters of the
independent public accountants of the Company, substantially in the
form heretofore furnished to you and in substance satisfactory to
you addressed to the Underwriters (with reproduced or conformed
copies thereof for each of the other Underwriters);
b) That, at or before 5:30 P.M. on the date hereof, or at such later
time and day as you may have from time to time consented to in
writing or by telephone, confirmed in writing, such orders of state
authorities which are necessary to permit the issue, sale and
delivery of the Shares, if any, shall have been issued; at the time
of purchase such orders shall be in full force and effect; and
prior to such time of purchase no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act by the Commission and at such time of purchase no
proceedings therefor shall be pending or threatened;
c) That, at the time the Registration Statement became effective, the
Registration Statement 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 that at the time of purchase the Prospectus shall
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, other than any statement
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contained in, or any matter omitted from, the Registration
Statement or the Prospectus in reliance upon, and in conformity
with, information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with
reference to such Underwriter in the Registration Statement or
Prospectus;
d) That, subsequent to the respective dates as of which information is
given in the Registration Statement and in the Prospectus, at the
time the Prospectus is first filed, or mailed for filing, pursuant
to Rule 424 under the Act, and prior to the time of purchase, in
your opinion no material adverse change, or any development
involving a prospective material adverse change, in the condition
of the Company, financial or otherwise, shall have taken place
(other than as referred to in or contemplated by the Registration
Statement and Prospectus as of such time);
e) That the Company shall have performed all of its obligations under
this Agreement which are to be performed by the terms hereof at or
before the time of purchase; and
f) That, since the date of this Agreement, there shall not have
occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Act (other than as referred to in or
contemplated by the Registration Statement and the Prospectus as of
such time);
g) That the Company shall, at the time of purchase, deliver to you
(with reproduced or conformed copies thereof for each of the other
Underwriters) a signed certificate of two of its executive officers
stating that, subsequent to the respective dates as of which
information is given in the Registration Statement and in the
Prospectus, at the time the Prospectus is first filed, or mailed
for filing, pursuant to Rule 424 under the Act, and prior to the
time of purchase, no material adverse change, or any development
involving a prospective material adverse change, in the condition
of the Company, financial or otherwise, shall have taken place
(other than as referred to in or contemplated by the Registration
Statement and Prospectus as of such time) and also covering the
matters set forth in (c) and (e) of this Section 4.
h) That the Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Shares arranged by the
Underwriters have been approved by the Company.
5. Termination of Agreement. The obligations of the several Underwriters
hereunder shall be subject to termination in your absolute discretion,
if, at any time prior to the time of purchase, trading in securities on
the New York Stock
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Exchange shall have been suspended (other than a temporary suspension to
provide for an orderly market) or minimum prices shall have been
established on the New York Stock Exchange, or if a banking moratorium
shall have been declared either by the United States or New York State
authorities, or if after the execution of this Agreement the United
States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or
escalation of hostilities or other national or international calamity or
crisis of such magnitude in its effect on the financial markets of the
United States as, in your judgment, to make it impracticable to market
the Shares.
If you elect to terminate this Agreement as provided in this
Section 5, the Company and each other Underwriter shall be notified
promptly in writing or by telephone, confirmed in writing.
If the sale to the Underwriters of the Underwriters' Shares as
herein contemplated is not carried out by the Underwriters for any
reason permitted hereunder or if such sale is not carried out because
the Company shall be unable to comply with any of the terms thereof, the
Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 3(1), 3(m), 7(b)
and 9 hereof), and the Underwriters shall be under no obligation or
liability to the Company (except to the extent provided in Sections 8(b)
and 9 hereof) or to one another under this Agreement.
6. Increase in Underwriters' Commitments. If any Underwriter shall default
in its obligation to take up and pay for the Shares to be purchased by
it hereunder and if the number of Shares which all Underwriters so
defaulting shall have so failed to take up and pay for does not exceed
10% of the total number of Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the number of Shares they are
obligated to purchase pursuant to this Agreement) the number of Shares
agreed to be purchased by all such defaulting Underwriters, as herein
provided. Such Shares shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such number as you may
designate with the consent of each Underwriter so designated or, in the
event no such designation is made, such Shares shall be taken up and
paid for by all non-defaulting Underwriters pro rata in proportion to
the number of Shares set opposite the names of all such non- defaulting
Underwriters in Schedule A to the Purchase Agreement.
Without relieving any defaulting Underwriter of its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that
it will not sell any Shares hereunder unless all of the Shares are
purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with
your approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or
Underwriters in accordance with
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the foregoing provision, the Company or you will have the right to
postpone the time of purchase for a period of not exceeding five
business days in order that necessary changes in the Registration
Statement and Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement will refer to and
include any underwriter substituted under this Section 6 with like
effect as if such substituted underwriter had originally been named in
Schedule A to the Purchase Agreement.
7. Warranties and Representations of and Indemnity by the Company.
a) The Company warrants and represents that, when the Registration
Statement became effective, the Registration Statement complied in
all material respects, and, when the Prospectus is first filed, or
mailed for filing, pursuant to Rule 424 under the Act, the
Prospectus will comply in all material respects with the provisions
of the Act, and that neither will 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; provided, however, that the Company makes no warranty
or representation with respect to any statement contained in, or
any matter omitted from, the Registration Statement or the
Prospectus in reliance upon and in conformity with information
furnished in writing by or on behalf of any Underwriter through you
to the Company expressly for use with reference to the Underwriter
in the Registration Statement or Prospectus. The Company also
warrants and represents that the documents incorporated by
reference in the Prospectus comply in all material respects with
the requirements of the Exchange Act and any additional documents
deemed to be incorporated by reference in the Prospectus will, when
they are filed with the Commission, comply in all material respects
with the requirements of the Exchange Act, 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 are made, not misleading.
b) The Company agrees to indemnify and hold harmless each Underwriter,
and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and
against any loss, expense, liability or claim (including the
reasonable fees and expenses of counsel and other reasonable
expenses in connection with investigating, defending or settling
any such claim) which arises out of or is based upon any alleged
untrue statement of a material fact in the Registration Statement,
any prospectus contained in the Registration Statement at the time
it became effective or the Prospectus, or any related
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preliminary prospectus, or arises out of or is based upon any
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements made therein not
misleading. The foregoing shall not cover any such loss, expense,
liability or claim, however, which arises out of or is based upon
any alleged untrue statement of a material fact contained in, and
in conformity with information furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use
with reference to the Underwriter in, any such documents or arises
out of or is based upon any alleged omission to state a material
fact in connection with such information required to be stated in
any such documents or necessary to make such information not
misleading.
If any action is brought against an Underwriter or controlling
person in respect of which indemnity may be sought against the Company
pursuant to the foregoing paragraph, such Underwriter shall promptly
notify the Company in writing or by telephone, confirmed in writing, of
the institution of such action and the Company shall assume the defense
of such action, including the employment of counsel and payment of
expenses. Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless the employment of such counsel shall have
been authorized in writing by the Company in connection with the defense
of such action or the Company shall not have employed counsel to have
charge of the defense of such action or such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to the Company (in which case the Company shall not have the
right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses of one
counsel (in addition to local counsel) for all indemnified parties
selected by you shall be borne by the Company. Anything in this
paragraph to the contrary notwithstanding, the Company shall not be
liable for any settlement of any such claim or action effected without
its written consent. The Company's indemnity agreement contained in this
Section 7(b) and its warranties and representations contained in this
Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or controlling
person, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. The Company agrees promptly to
notify the Underwriters of the commencement of any litigation or
proceedings against the Company or any of its officers or directors in
connection with the issue and sale of the Shares or with such
Registration Statement or Prospectus.
8. Warranties and Representations of the Indemnity by Underwriters.
a) Each Underwriter warrants and represents that the information
furnished in writing by or on behalf of such Underwriter through
you to the
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Company expressly for use with reference to such Underwriter in the
Registration Statement at the time it became effective or the
Prospectus, or any related preliminary prospectus does not contain
an untrue statement of a material fact and does not omit to state a
material fact in connection with such information required to be
stated in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary prospectus
or necessary to make such information not misleading. Each
Underwriter, in addition to other information furnished by such
Underwriter or on its behalf through you to the Company in writing
expressly for use with reference to such Underwriter in the
Registration Statement and Prospectus, hereby furnishes to the
Company in writing expressly for use with reference to such
Underwriter the statements with respect to the terms of offering of
the Shares by the Underwriters set forth on the cover page of the
Prospectus Supplement and under "underwriting" therein.
b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors and its officers from and against any
loss, expense, liability or claim (including the reasonable fees
and expenses of counsel and other reasonable expenses in connection
with investigating, defending or settling any such claim) which
arises out of or is based upon any alleged untrue statement of a
material fact contained in, and in conformity with information
furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use with reference to such
Underwriter in, the Registration Statement, any prospectus
contained in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary prospectus,
or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be
stated in such documents or necessary to make such information not
misleading.
If any action is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall
promptly notify such Underwriter in writing or by telephone, confirmed
in writing, of the institution of such action and such Underwriter shall
assume the defense of such action, including the employment of counsel
and payment of expenses. The Company or such person shall have the right
to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Company or such
person unless the employment of such counsel shall have been authorized
in writing by such Underwriter in connection with the defense of such
action or such Underwriter shall not have employed counsel to have
charge of the defense of such action or such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to such Underwriter (in which case such Underwriter shall not
have the right to direct the defense of such action on behalf
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of the indemnified party or parties), in any of which events such fees
and expenses for all indemnified parties of one counsel (in addition to
local counsel) selected by the Company shall be borne by such
Underwriter. Anything in this paragraph to the contrary notwithstanding,
no Underwriter shall be liable for any settlement of any such claim or
action effected without the written consent of such Underwriter. The
indemnity agreement on the part of each Underwriter contained in this
Section 8(b) shall remain in full force and effect regardless of any
investigation made by or on behalf of Company or such person, and shall
survive any termination of this Agreement or the issuance and delivery
of the Shares. Each Underwriter agrees promptly to notify the Company of
the commencement of any litigation or proceedings against such
Underwriter in connection with the issue and sale of the Shares or with
such Registration Statement or Prospectus.
9. Contribution. If the indemnification provided for in Section 7(b) or
8(b) above is unavailable in respect of any losses, expenses,
liabilities or claims referred to therein, then the parties entitled to
indemnification by the terms thereof shall be entitled to contribution
to liabilities and expenses except to the extent that contribution is
not permitted under the Act or the Exchange Act. In determining the
amount of contribution to which the respective parties are entitled,
there shall be considered the relative benefits received by each party
from the offering of the Shares (taking into account the portion of the
proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent
any statement or omission, and any other equitable considerations
appropriate under the circumstances. The Company and the Underwriters
and such controlling persons agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters and such controlling persons were
treated as one entity for such purpose). Notwithstanding the provisions
of this Section 9, no indemnifying Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Securities underwritten by such Under- writer and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter otherwise has been required to pay
by reason of such untrue statement 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 contribution agreement contained in
this Section 9 shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or the Company or
any of its officers or directors or any controlling person and shall
survive any termination of this Agreement or the issuance and delivery
of the Shares.
10. Notices. All statements, requests, notices and agreements shall be in
writing or by telegram and, if to the Underwriters, shall be sufficient
in all respects if delivered or sent by registered mail to the address
furnished in writing for the purpose of such statements, requests,
notices and agreements hereunder, and, if to the
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Company shall be sufficient in all respects if delivered or sent by
registered mail to the Company at [Issuer/Address], Attention: .
11. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this agreement.
12. The Agreement herein set forth has been and is made solely for the
benefit of the Underwriters and the controlling persons, directors and
officers referred to in Section 8 hereof, and their respective
successors, assigns, executors and administrators, and no other person
shall acquire or have any right under or by virtue of this Agreement.
Nothing in this Agreement is intended or shall be construed to give to
any other person, firm or corporation (including, without limitation,
any purchaser of the Securities from an Underwriter or any subsequent
holder thereof) any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Shares from any Underwriter or any
subsequent holder thereof.
13. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
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Schedule I
DELAYED DELIVERY CONTRACT
Dated: ______________, 199
[NAME OF ISSUER]
[ADDRESS]
Attention:
Dear Sirs:
The undersigned xxxxxx agrees to purchase from [Name of Issuer] (the
"Company"), and the Company agrees to sell to the undersigned,
___________________ shares
of the Company's [state title of issue] (the "Shares") offered by the Company's
Prospectus dated __________, 199 and a Prospectus Supplement dated ___________ ,
199 , receipt of copies of which is hereby acknowledged, at a purchase price of
$ ____________ per share and on the further terms and conditions set forth in
this contract.
The undersigned agrees to purchase such Shares in the amounts and on
the delivery dates (the "Delivery Dates") set forth below:
Delivery Number of
Date Shares
-------- ---------
---------------- ---------------
---------------- ---------------
---------------- ---------------
Payment for the Shares which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by wire transfer of
immediately
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available funds at the Corporate Trust Office of _____________ (or at such
other place as the undersigned and the Company shall agree) at 11:00 A.M., New
York City Time, on such Delivery Date upon issuance and delivery to the
undersigned of the Shares to be purchased by the undersigned on such Delivery
Date and, unless otherwise provided herein, registered in such names as the
undersigned may designate by written or telegraphic communications addressed to
the Company not less than five full business days prior to such Delivery Date.
The obligation of the Company to sell and deliver, and of the
undersigned to take delivery of and make payment for, Shares on each Delivery
Date shall be subject to the conditions that (1) the purchase of Shares to be
made by the undersigned shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which the undersigned is subject, (2) the sale
of the Shares by the Company pursuant to this contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction to which the Company
is subject and (3) the Company shall have sold, and delivery shall have taken
place, to the Underwriters of such number of the Shares as is to be sold and
delivered to them. In the event that Shares are not sold to the undersigned
because one of the foregoing conditions is not met, the Company shall not be
liable to the undersigned for damages arising out of the transactions covered by
this contract.
Promptly after completion of the sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by copies of the opinions of
counsel for the Company delivered to the Underwriters.
Failure to take delivery of and make payment for Shares by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of
this contract, the undersigned is not prohibited under the laws of the
jurisdictions to which the undersigned is subject from purchasing the Shares
hereby agreed to be purchased and (b) the undersigned does not contemplate
selling the Shares which it has agreed to purchase hereunder prior to the
Delivery Date therefor.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other. This contract
shall be governed by and construed in accordance with the laws of the State of
New York. This contract may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
It is understood that the acceptance of any Delayed Delivery Contract
is in the Company's sole discretion and, without limiting the foregoing, need
not be on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested
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that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned when such
counterpart is so signed.
Yours very truly,
______________________________________
By____________________________________
______________________________________
______________________________________
Address
Accepted, as of the date first above written
[Name of Issuer]
By_________________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
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[NAME OF ISSUER]
PURCHASE AGREEMENT
COMMON STOCK
[Name of Issuer]
[ADDRESS]
Dear Sirs:
Referring to the Common Stock of [Name of Issuer] (the "Company")
covered by the registration statement on Form S-3 (No. 333-______), such
registration statement including (i) the prospectus included therein, dated
______________ , 199_ in the form first filed under Rule 424 and any additional
prospectus supplements relating to the Common Stock filed under Rule 424 (such
prospectus as so supplemented, including each document incorporated by reference
therein is hereinafter called the "Prospectus") and (ii) all documents filed as
part thereof or incorporated by reference therein, is hereinafter called the
"Registration Statement", on the basis of the representations, warranties and
agreements contained in this Agreement, but subject to the terms and conditions
herein set forth, the purchaser or purchasers named in Schedule A hereto (the
"Underwriters") agree to purchase, severally, and the Company agrees to sell to
the Underwriters, severally, the respective number of shares of Common Stock
having the terms described below (the "Shares") set forth opposite the name of
each Underwriter on Schedule A hereto.
The price at which the Shares shall be purchased from the Company by
the Underwriters shall be $____ per share. The initial public offering price
shall be $____ per share. The Shares will be offered by the Underwriters as set
forth in the Prospectus relating to such Shares.
The Shares will have the following terms:
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Title of Shares:
Payment for the Shares shall be made in the following funds:
_______________________
The "time of purchase" shall be: _______________________
The place at which the Shares may be checked and packaged shall be:
_______________________
The place(s) at which the Shares shall be delivered and sold shall be:
_______________________
Delayed Delivery
Contracts: _______________________
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Notices to Underwriters shall be sent to the following address(es) or
telecopier number(s):
If we are acting as Representative(s) for the several Underwriters named
in Schedule A hereto, we represent that we are authorized to act for such
several Underwriters in connection with the transactions contemplated in this
Agreement, and that, if there are more than one of us, any action under this
Agreement taken by any of us will be binding upon all the Underwriters.
All of the provisions contained in the document entitled "[Name of
Issuer] Standard Purchase Provisions - Equity Securities", a copy of which has
been previously furnished to us, are hereby incorporated by reference in their
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.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
[Firm Name]
By _____________________________
Title: ______________________
[Firm Name]
By _____________________________
Title: ______________________
Acting on behalf of and as
Representative(s) of the
several Underwriters named
in Schedule A hereto.*
-------------------
* To be deleted if the Purchase Agreement is not executed by one or more
Underwriters acting as Representative(s) of the Underwriters for purposes
of this Agreement.
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The foregoing Purchase Agreement is
hereby confirmed as of the date
first above written
[NAME OF ISSUER]
By ____________________________
Title: _____________________
_______________________________
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SCHEDULE A
Number
of
Name of Underwriters Shares
Total
==========
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