Exhibit 1.03
Depositary Shares
XXXXXX BROTHERS HOLDINGS INC.
FORM OF
UNDERWRITING AGREEMENT
--------------------------
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxxx Brothers Holdings Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to you and the other underwriters named in Schedule
II hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the number of shares identified in Schedule I hereto (the
"Firm Shares") of the Company's preferred stock, par value $1.00 per share (the
"Preferred Stock") identified in Schedule I hereto. In addition, if so indicated
in Schedule I the Company proposes to grant to the Underwriters an option to
purchase up to an additional number of shares of the Preferred Stock identified
in Schedule I hereto on the terms and for the purposes set forth in Section 2
(the "Option Shares"). The Firm Shares and the Option Shares, if purchased, are
hereinafter collectively called the "Shares". The Shares are to be deposited by
you or on your behalf against delivery of Depositary Receipts (the "Depositary
Receipts") to be issued by BankBoston, N.A., as Depositary (the "Depositary"),
under a Deposit Agreement, dated as of (the "Deposit Agreement"), among the
Company, the Depositary and holders from time to time of the Depositary Receipts
issued thereunder. The Depositary Receipts will evidence Depositary Shares (the
"Depositary Shares"), and each Depositary Share will represent the fraction of a
share of Preferred Stock identified in Schedule I. The number of Depositary
Shares in respect of Firm Shares to be purchased by each Underwriter is
identified in Schedule II. If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives" shall each be deemed to refer to such firm
or firms. This is to confirm the agreement concerning the purchase of the Shares
from the Company by the Underwriters named in Schedule II hereto.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
each Underwriter that:
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(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file number
of which is set forth in Schedule I hereto), which has become effective,
for the registration of the Shares and the Depositary Shares under the
Securities Act. The registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the
Securities Act and complies in all other material respects with such rule.
The Company proposes to file with the Commission pursuant to Rule 424
under the Securities Act ("Rule 424") a supplement to the form of
prospectus included in the registration statement relating to the initial
offering of the Shares and the Depositary Shares and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth therein. The term "Registration Statement" means the registration
statement, as amended at the date of this Agreement, including the
exhibits thereto, financial statements, and all documents incorporated
therein by reference pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), and such prospectus as then amended, including the
Incorporated Documents, is hereinafter referred to as the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), is hereinafter called
the "Final Prospectus". Any preliminary form of the Basic Prospectus which
has heretofore been filed pursuant to Rule 424 is hereinafter called the
"Interim Prospectus". Any reference herein to the Registration Statement,
the Basic Prospectus, any Interim Prospectus or the Final Prospectus shall
be deemed to refer to and include the Incorporated Documents which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any Incorporated Documents under the
Exchange Act after the date of this Agreement or the issue date of the
Basic Prospectus, any Interim Prospectus or the Final Prospectus, as the
case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
with the Commission pursuant to Rule 424, when, before either Delivery
Date (hereinafter defined), any amendment to the Registration Statement
becomes effective, when, before either Delivery Date, any Incorporated
Document is filed with the Commission, when any supplement to the Final
Prospectus is filed with the Commission and at each Delivery Date, the
Registration Statement, the Final Prospectus and any such amendment or
supplement will comply in all material respects with the applicable
requirements of the Securities Act and the Rules, and the Incorporated
Documents will comply in all material respects with the
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requirements of the Exchange Act or the Securities Act, as applicable, and
the rules and regulations adopted by the Commission thereunder, on the
date it became effective, the Registration Statement did not, and, on the
date that any post-effective amendment to the Registration Statement
becomes effective, the Registration Statement as amended by such
post-effective amendment did not or will not, as the case may be, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; on the date the Final Prospectus is filed with the
Commission pursuant to Rule 424 and on each Delivery Date, the Final
Prospectus, as it may be amended or supplemented, will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and on said
dates, the Incorporated Documents will comply in all material respects
with the applicable provisions of the Exchange Act and rules and
regulations of the Commission thereunder, and, when read together with the
Final Prospectus, or the Final Prospectus as it may be then amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they are made, not misleading; provided that the foregoing representations
and warranties in this paragraph (b) shall not apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives on behalf of
any Underwriter specifically for use in connection with the preparation of
the Registration Statement or the Final Prospectus, as they may be amended
or supplemented.
(c) The Basic Prospectus and any Interim Prospectus, as of their
respective dates, complied in all material respects with the requirements
of the Securities Act and of the Rules and did not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Commission has not issued
an order preventing or suspending the use of the Basic Prospectus or any
Interim Prospectus.
(d) The nationally recognized firm of independent public accountants
whose report appears in the Company's most recent Annual Report on Form
10-K, which is incorporated by reference in the Final Prospectus, are
independent public accountants as required by the Securities Act and the
Rules.
(e) In the event that a report of a nationally recognized firm of
independent public accountants regarding historical financial information
with respect to any entity acquired by the Company is required to be
incorporated by reference in the Final Prospectus, such independent public
accountants were independent public accountants, as required by the
Securities Act and the Rules, during the period of their engagement to
examine the financial statements being reported on and at the date of
their report.
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(f) The audited consolidated financial statements of the Company in
the Final Prospectus and the Registration Statement present fairly on a
consolidated basis the financial position, the results of operations,
changes in common stock and other stockholder's equity and cash flows of
the Company and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The unaudited consolidated financial statements of the Company,
if any, included in the Final Prospectus and the Registration Statement
and the related notes are true, complete and correct, subject to normally
recurring changes resulting from year-end audit adjustments, and have been
prepared in accordance with the instructions to Form 10-Q.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects the
business, properties, financial condition or results of the Company or the
Company and its subsidiaries taken as whole, from the dates as of which
information is given in the Registration Statement and Final Prospectus.
(h) The Shares conform to the description thereof contained in the
Final Prospectus, are duly and validly authorized, and, when issued and
delivered against payment therefor as provided in this Agreement, will be
validly issued, fully paid and non-assessable. The Depositary Shares
representing the Shares have been duly and validly authorized by the
Company; and assuming the due execution by the Depositary of the Deposit
Agreement and the due execution by the Depositary and, if required by the
Deposit Agreement, the Registrar of the Depositary Receipts in accordance
with the terms of the Deposit Agreement and upon the deposit by or on
behalf of the Underwriters of the Shares with the Depositary pursuant to
the Deposit Agreement, the Depositary Shares will represent legal and
valid interests in the Shares and the Depositary Receipts will constitute
valid evidence of such interests in the Shares and will be entitled to the
benefits of the Deposit Agreement.
(i) Neither the Company nor any of the Significant Subsidiaries (as
defined below) is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its subsidiaries
taken as a whole. The execution, delivery and performance of this
Agreement or the Deposit Agreement will not constitute a breach of, result
in the creation or imposition of any material lien, charge or encumbrance
upon any of the assets of the Company or any of its subsidiaries pursuant
to the terms of, or constitute a default under, any material agreement,
indenture or instrument, or result in a violation of the corporate charter
or by-laws of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company, any of the Significant Subsidiaries or their property. Except
as set forth in the Final Prospectus or as required by the Securities Act,
the Exchange Act and applicable state securities laws, no consent,
authorization or order of, or
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filing or registration with, any court or governmental agency is required
for the execution, deliver and performance of this Agreement or the
Deposit Agreement. "Significant Subsidiary" means Xxxxxx Brothers Inc.,
Xxxxxx Brothers International (Europe), Xxxxxx Brothers Finance S.A. and
Xxxxxx Brothers Special Financing Inc.
(j) Each of the Company and the Significant Subsidiaries have been
duly organized, are validly existing and in good standing under the laws
of their respective jurisdictions of incorporation, are duly qualified to
do business and in good standing as foreign corporations and are fully
registered as a broker-dealer, broker, dealer or investment advisor, as
the case may be, in each jurisdiction in which their respective ownership
of property or the conduct of their respective businesses requires such
qualification or registration and in which the failure to qualify or
register would be reasonably likely, individually or in the aggregate, to
have a material adverse effect on the business, condition or properties of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"). Each of the Company and the Significant Subsidiaries holds all
material licenses, permits, and certificates from governmental authorities
necessary for the conduct of its business and owns, or possesses adequate
rights to use, all material rights necessary for the conduct of such
business and has not received any notice of material conflict with the
asserted rights of others in respect thereof, except in each case where
the failure to do so would not be reasonably likely, individually or in
the aggregate, to have a Material Adverse Effect; and each of the Company
and the Significant Subsidiaries has the corporate power and authority
necessary to own or hold its properties and to conduct the businesses in
which it is engaged. Except as may be disclosed in the Registration
Statement and the Final Prospectus, all outstanding shares of capital
stock of the Significant Subsidiaries have been duly authorized and are
validly issued and outstanding, fully paid and non-assessable and, except
for directors' qualifying shares, are owned by the Company, directly or
indirectly through subsidiaries, free and clear of any lien, pledge and
encumbrance or any claim of any third party.
(k) Except as described in the Registration Statement and the Final
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries which might reasonably be expected to
have a Material Adverse Effect or which is required to be disclosed in the
Registration Statement and the Final Prospectus.
(l) The certificate delivered pursuant to paragraph (f) of Section 6
hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Shares and
the Depositary Shares were on the dates on which they were delivered, or
will be on the dates on which they are to be delivered, in all material
respects true and complete.
2. SALE AND PURCHASE OF THE SHARES. The Company agrees to sell to each
Underwriter, and each Underwriter, on the basis of the representations,
warranties and
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agreements herein contained, but subject to the terms and conditions herein
stated, agrees to purchase from the Company the number of Depositary Shares in
respect of Firm Shares set forth opposite the name of Underwriter in Schedule II
hereto. The obligations of the Underwriters under this Agreement are several and
not joint. [TO BE INCLUDED IN GLOBAL OFFERING: The Underwriters have each agreed
to the provisions contained in the Shearson Xxxxxx Brothers Inc. Agreement Among
Underwriters Basic Provision for Offerings of Securities, dated as of May 15,
1985.]
In addition, the Company grants to the Underwriters an option to purchase
up to an additional number of Option Shares indicated in Schedule I hereto. Such
option is granted solely for the purpose of covering over-allotments in the sale
of Firm Shares and is exercisable as provided in Section 3 hereof. Option Shares
shall be purchased severally for the account of the Underwriters in proportion
to the number of Depositary Shares in respect of Firm Shares set forth opposite
the name of such Underwriters in Schedule II hereto. The respective purchase
obligations of each Underwriter with respect to the Option Shares shall be
adjusted by the Representatives so that no Underwriter shall be obligated to
purchase Option Shares other than in 10 share amounts and integral multiples
thereof. The price of both the Firm Shares and any Option Shares shall be the
price per share indicated in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery by the Company of the Firm Shares to the
Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by certified or official bank check or
checks payable in, or by wire transfer of, immediately available (federal) funds
to or upon the order of the Company shall take place at the office, on the date
and at the time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Firm Shares being herein called the "First Delivery Date"). The certificates
representing the Firm Shares will be delivered by the Representatives to, and
deposited with, the Depositary against delivery of Depositary Receipts
representing Depositary Shares issued in respect of such Firm Shares. Such
Depositary Receipts shall be issued in such denominations and registered in such
names as the Representatives shall request, and will be made available for
checking and packaging at the above office of the Company at least twenty-four
hours prior to the First Delivery Date.
At any time on or before the twentieth day after the date as of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of Depositary Receipts in respect of such Option Shares as
to which the option is being exercised, the names in which the Depositary
Receipts in respect of such Option Shares are to be registered, the
denominations in which the Option Shares are to be issued and the date and time,
as determined by the Representatives, when the Option Shares are to be delivered
provided, however, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. The date and time the
Option Shares are delivered are sometimes referred to as the "Second Delivery
Date" and the First Delivery Date and the Second Delivery Date are sometimes
referred to as a "Delivery Date".
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Delivery by the Company of the Option Shares to the Representatives for
the respective accounts of the several Underwriters and payment by the
Underwriters therefor by certified or official bank check or checks payable in,
or by wire transfer of, immediately available (federal) funds to or upon the
order of the Company shall take place at the office and at the time specified in
Schedule I hereto, on the Second Delivery Date, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof.
The certificates representing the Option Shares will be delivered by the
Representatives to, and deposited with, the Depositary against delivery of
Depositary Receipts representing Depositary Shares issued in respect of such
Option Shares. Such Depositary Receipts shall be issued in such denominations
and registered in such names as the Representatives shall request, and will be
made available for checking and packaging at the above office of the Company at
least twenty-four hours prior to the Second Delivery Date.
4. OFFERING BY UNDERWRITERS. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed any Interim Prospectus and are authorized to distribute the Final
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Depositary Shares has been terminated, the Representatives will so advise
the Company.
5. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) The Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 not later than 10:00 a.m., New York City
time, on the business day following the date of this Agreement and will
promptly advise the Representatives (A) when the Final Prospectus shall
have been filed with the Commission pursuant to Rule 424, (B) when any
amendment to the Registration Statement relating to the Shares and the
Depositary Shares shall have become effective, (C) of any request by the
Commission for any amendment of the Registration Statement, the Final
Prospectus, the Basic Prospectus or any Interim Prospectus, or for any
additional information, (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceedings for that purpose and (E) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares and the Depositary Shares
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. After the date of this Agreement and prior to
the termination of the offering of the Shares and the Depositary Shares,
the Company will not file any amendment of the Registration Statement or
amendment or supplement to the Final Prospectus (except an amendment to
the Final Prospectus that is deemed to be incorporated by reference in the
Final Prospectus pursuant to Item 12 of Form S-3) without the consent of
the Representatives and will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof. Prior to receipt of the advice to be given by the
8
Representatives pursuant to Section 4, the Company will not file any
document that would be deemed to be incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3 without delivering to the
Representatives a copy of the document proposed to be so filed, such
delivery to be made at least twenty-four hours prior to such filing, and
the Company will consult with the Representatives as to any comments which
the Representatives make in a timely manner with respect to the document
so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time during which a prospectus relating to the
Shares and the Depositary Shares is required to be delivered under the
Securities Act, any event occurs as a result of which the Final Prospectus
as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Final Prospectus to comply with the Securities Act
or the Rules, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and will use
its best efforts to cause any amendment of the Registration Statement
containing an amended Final Prospectus to be made effective as soon as
possible.
(c) The Company will deliver to the Representatives, without charge,
(i) signed copies of the Registration Statement and of any amendments
thereto (including all exhibits filed with, or incorporated by reference
in, any such document) and (ii) as many conformed copies of the
Registration Statement and of any amendments thereto which shall become
effective on or before the First Delivery Date (excluding exhibits) as the
Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will deliver, without
charge to the Representatives and to Underwriters and dealers, at such
office or offices as the Representatives may designate, as many copies of
the Basic Prospectus, any Interim Prospectus and the Final Prospectus as
the Representatives may reasonably request.
(e) The Company will make generally available to its security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its subsidiaries,
covering a period of at least 12 months beginning after the date the Final
Prospectus is filed with the Commission pursuant to Rule 424, which will
satisfy the provisions of Section 11(a) of the Securities Act.
(f) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the Shares
and the Depositary Shares for offering and sale under the laws of such
jurisdictions as the Representatives may designate and will maintain such
qualifications in effect so
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long as required for the distribution of the Shares and the Depositary
Shares; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(g) So long as any Depositary Shares are outstanding, the Company
will furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission.
(h) If the Company has applied for the listing of the Shares or
Depositary Shares on the New York Stock Exchange Inc. (the "NYSE"), it
will use its best efforts to cause such listing to be approved as soon as
possible.
(i) For a period beginning at the time of execution of this
Agreement and ending on the later of the business day following either the
Second Delivery Date or following the date on which any price restrictions
on the sale of the Shares or the Depositary Shares are terminated, without
the prior consent of the Representatives, the Company will not offer,
sell, contract to sell or otherwise dispose of any shares of Preferred
Stock (other than the Shares and the Depositary Shares), or sell or grant
options, rights or warrants with respect to any shares of Preferred Stock
covered by the Registration Statement or any other registration statement
filed under the Securities Act.
(j) The Company will use its best efforts to do and perform all
things to be done and performed hereunder prior to each Delivery Date and
to satisfy all conditions precedent to the delivery of the Shares and the
Depositary Shares.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Shares shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Company contained herein as of the date hereof and each Delivery Date, to the
accuracy of any material statements made in any certificates, opinions,
affidavits, written statements or letters furnished to the Representatives or to
Xxxxxxx Xxxxxxx & Xxxxxxxx ("Underwriters' Counsel") pursuant to this Section 6,
to the performance by the Company of its respective obligations hereunder and to
the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 not later than 10:00 a.m., New York City time, on the
business day following the date of this Agreement or such later date and
time as shall be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall be in effect and no
proceedings for such purpose shall be pending before or threatened by the
Commission and any requests for additional information on the part of the
Commission (to be
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included in the Registration Statement or the Final Prospectus or
otherwise) shall have been complied with to the reasonable satisfaction of
the Representatives.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall not have
been any change or decrease specified in the letter referred to in
paragraph (g) of this Section 6 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
offering and delivery of the Depositary Shares representing such Shares as
contemplated by the Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of a Deputy General Counsel or the Chief Legal Officer for the
Company, dated the day of each Delivery Date to the effect that:
(i) The Company has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation with all requisite corporate power and authority to own and
operate its properties and to conduct its business as described in the
Final Prospectus.
(ii) The Deposit Agreement, the Shares, the Depositary Shares
and the Depositary Receipts conform in all material respects to the
descriptions thereof contained in the Final Prospectus.
(iii) The Company has an authorized capitalization as set
forth in the Final Prospectus, and all of the issued shares of capital
stock of the Company (including the Shares being delivered on such
Delivery Date) have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof contained
in the Prospectus; the Depositary Shares representing the Shares delivered
on such Delivery Date have been duly and validly authorized by the
Company; and assuming the due execution by the Depositary of the Deposit
Agreement and the due execution y the Depositary and, if required by the
Deposit Agreement, the Registrar of the Depositary Receipts in accordance
with the terms of the Deposit Agreement and upon the deposit by or on
behalf of the Underwriters of the Shares with the Depositary pursuant to
the Deposit Agreement, such Depositary Shares will represent legal and
valid interests in the Shares delivered on such Delivery Date and the
Depositary Receipts will constitute valid evidence of such interests in
such Shares and will be entitled to the benefits of the Deposit Agreement.
(iv) There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of, any
Shares pursuant to the Company's charter or by-laws or any agreement or
other instrument known to such counsel.
(v) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
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transactions contemplated in this Agreement or the compliance by the
Company with the provisions of the Deposit Agreement, except for such
consents, approvals, authorizations or orders as have been obtained under
the Securities Act and such as may be required under the Exchange Act and
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares and the Depositary Shares by the Underwriters.
(vi) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules which have not been filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules.
(vii) To the best of such counsel's knowledge, neither the
Company nor any Significant Subsidiary that is organized under the laws of
the United States or any State or territory thereof (a "Domestic
Significant Subsidiary") is in violation of its corporate charter or
by-laws, or in default under any material agreement, indenture or
instrument known to such counsel, the effect of which violation or default
would be material to the Company and its subsidiaries taken as a whole.
(viii) This Agreement and the Deposit Agreement have been duly
authorized, executed and delivered by the Company; the execution, delivery
and performance of this Agreement and the Deposit Agreement by the Company
will not constitute a breach of, or result in the creation or imposition
of any material lien, charge or encumbrance upon any of the assets of the
Company or any Domestic Significant Subsidiary pursuant to the terms of,
or constitute a default under, any material agreement, indenture or
instrument known to such counsel and to which the Company or any Domestic
Significant Subsidiary is a party of is bound, or result in a violation of
the corporate charter or by-laws of the Company or any Domestic
Significant Subsidiary or any order, rule or regulation known to such
counsel of any court or governmental agency having jurisdiction over the
Company, any Domestic Significant Subsidiary or any of their respective
properties, the effect of which would be material to the Company and its
subsidiaries taken as a whole.
(ix) Assuming due authorization, execution and delivery by the
Depositary, the Deposit Agreement constitutes a valid and binding
agreement, enforceable in accordance with its terms subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and by an implied covenant of good faith
and fair dealing.
(x) The Registration Statement has become effective under the
Securities Act, and, to the best of the knowledge of such counsel, no stop
order
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suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the
Commission.
(xi) The Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (except that no opinion need be
expressed as to the financial statements or other financial or statistical
data included or incorporated by reference therein) comply as to form in
all material respects with the requirements of the Securities Act and the
Rules.
(xii) If the Shares or the Depositary Shares, as the case may
be, are to be listed on the NYSE, authorization therefor has been given,
subject to official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing application
and all required supporting documents with respect to the Shares or the
Depositary Shares, as the case may be, with the NYSE, and such counsel has
no reason to believe that the Shares or the Depositary Shares, as the case
may be, will not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution.
(xiii) Each Domestic Significant Subsidiary is a duly
organized and validly existing corporation in good standing under the laws
of the jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate its properties and to conduct its
business as described in the Final Prospectus. Each of the Company and the
Domestic Significant Subsidiaries is duly qualified to do business as a
foreign corporation, is in good standing and is duly registered as a
broker-dealer, broker, dealer or investment advisor, as the case may be,
in each jurisdiction in which the nature of the business conducted by it
or in which the ownership or holding by lease of the properties owned or
held by it require such qualification or registration and where the
failure to so qualify or register would have a Material Adverse Effect.
(xiv) All the outstanding shares of capital stock of each
Domestic Significant Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable and, except for directors'
qualifying shares, are owned by the Company or a subsidiary of the Company
free and clear of any claims, liens, encumbrances and security interests.
(xv) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or any
of its subsidiaries which would affect the subject matter of this
Agreement or the Deposit Agreement or is required to be disclosed in the
Final Prospectus which is not disclosed and correctly summarized therein.
Such opinion shall also contain a statement that although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Final Prospectus (except as to those matters stated in
paragraph (ii) of such opinion), such counsel has no reason to believe that (i)
the Registration Statement, as of its effective date, contained any untrue
statement of a
13
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
(ii) the Final Prospectus contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except that no opinion need be expressed as to the financial
statements or other financial or statistical data included or incorporated by
reference therein).
In rendering such opinion, such counsel may rely upon opinions of local
counsel satisfactory to the Representatives for matters not governed by New York
law and may rely as to matters of fact, to the extent such counsel deems proper,
upon certificates or affidavits of officers of the Company and public officials.
(e) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of such Delivery Date,
with respect to the issuance and sale of the Shares and the Depositary
Shares, the Depositary Agreement, the Registration Statement, the Final
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Vice President and its Chief Financial Officer or its
Treasurer, dated the day of each Delivery Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus and this Agreement, and that, to the best
of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of such
Delivery Date with the same effect as if made on such Delivery Date, and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such
Delivery Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened.
(iii) (x) The Registration Statement does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, (y) the Final Prospectus does not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
and (z) since the effective date of the Registration Statement there has
not occurred any event required to be set forth in an amended or
supplemented prospectus which has not been so set forth.
14
(g) At each Delivery Date, a nationally recognized firm of
independent public accountants shall have furnished to the Representatives
a letter, dated the day of such Delivery Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
auditors with respect to the Company within the meaning of the Securities
Act and stating in effect that:
(i) In their opinion, the consolidated financial statements of
the Company and its subsidiaries, and the supporting schedules, included
in the Registration Statement and the Final Prospectus and audited by them
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the related
published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any, included
in the Registration Statement and the Final Prospectus and of the latest
unaudited consolidated financial statements made available by the Company
and Xxxxxx Brothers Inc., carrying out certain specified procedures (but
not an audit in accordance with generally accepted auditing standards), a
reading of the minutes of the meetings of the directors of the Company and
Xxxxxx Brothers Inc., and inquiries of certain officials of the Company
and its subsidiaries, who have responsibility for financial and accounting
matters of the Company and its subsidiaries, as to transactions and events
subsequent to the date of the most recent audited consolidated financial
statements included in the Registration Statement and the Final
Prospectus, nothing came to their attention that caused them to believe
that:
(A) any material modifications should be made to the unaudited
consolidated financial statements of the Company and its subsidiaries, if
any, included in the Registration Statement and the Final Prospectus for
them to be in conformity with generally accepted accounting principles;
and such financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and the published instructions, rules and regulations thereunder.
(B) the unaudited capsule information of the Company and its
subsidiaries, if any, included in the Registration Statement and the Final
Prospectus does not agree with the amounts set forth in the unaudited
consolidated financial statements of the Company from which it was derived
or was not determined on a basis substantially consistent with that of the
corresponding financial information in the latest audited financial
statements of the Company included in the Registration Statement and the
Final Prospectus.
(C) (I) as of the latest date as of which the Company and its
subsidiaries have monthly financial statements, there was any decrease in
the capital stock, additional paid-in capital or retained earnings, or
increase in long-term indebtedness of the Company and its subsidiaries, as
compared with the amounts
15
shown in the most recent consolidated statement of financial condition of
the Company and its subsidiaries included in the Registration Statement
and the Final Prospectus, (II) with respect to the period subsequent to
the date of the most recent financial statements included in the
Registration Statement and the Final Prospectus and extending through the
latest date as of which the Company and its subsidiaries have monthly
financial statements, there was a consolidated net loss or (III) with
respect to the amounts of net capital or excess net capital of Xxxxxx
Brothers Inc. determined pursuant to Commission Rule 15c3-1 and shown in
the most recent financial statement of Xxxxxx Brothers Inc. filed pursuant
to Commission Rule 17a-5, there has been any decrease in such amounts as
compared with the amounts shown in the most recent consolidated financial
statements included in the Registration Statement and the Final
Prospectus.
(D) as of a specified date not more than three business days prior
to the date of the letter, there was any decrease in the capital stock or
additional paid-in capital, or increase in long-term indebtedness of the
Company and its subsidiaries, as compared with the amounts shown in the
most recent consolidated statement of financial condition of the Company
and its subsidiaries included in the Registration Statement and the Final
Prospectus;
except in all instances for increases or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the Company as
to the significance thereof, unless said explanation is not deemed necessary by
the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus, (x) they have read such
pro forma financial statements, (y) they have made inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company as to the basis for their determination
of the pro forma adjustments and whether such pro forma financial
statements comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X and (z) they have
proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts; and as a result thereof, nothing
came to their attention that caused them to believe that such pro forma
financial statements do not so comply with Rule 11-02 of Regulation S-X
and that such pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(iv) They have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived from dollar amounts, and has been obtained
from the general accounting records of the Company) set forth in the
Registration Statement, as amended, and the Final Prospectus, as amended
or supplemented, and in Exhibit 12 to the Registration Statement,
including specified information, if any, included or incorporated from the
Company's Annual Report on Form 10-K incorporated therein or specified
information, if any, included or incorporated from any of the
16
Company's Quarterly Reports on Form 10-Q or its Current Reports on Form
8-K incorporated therein, agrees with the accounting records of the
Company and its subsidiaries or computations made therefrom, excluding any
questions of legal interpretation.
(h) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation.
(i) Prior to each Delivery Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives or Underwriters' Counsel may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates
or opinions furnished to the Representatives or Underwriters' Counsel pursuant
to this Section 6 shall not be in all material respects reasonably satisfactory
in form and substance to the Representatives and to Underwriters' Counsel, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, each Delivery Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing, or by telegraph
confirmed in writing.
7. EXPENSES. (a) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company will pay
all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issuance, sale and delivery of the
Shares to the Underwriters, all fees and expenses of the Company's counsel and
accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), any
Interim Prospectus, the Basic Prospectus, the Final Prospectus and any
amendments thereof or supplements thereto, and the rating of the Shares or the
Depositary Shares by one or more rating agencies, all costs and expenses
(including fees of Underwriters' Counsel and their disbursements) incurred in
connection with blue sky qualifications, advising on the legality of the Shares
or the Depositary Shares for investment, the filing requirements, if any, of the
National Association of Securities Dealers, Inc. in connection with its review
of corporate financings, the fee for listing the Shares or the Depositary Shares
on the NYSE, all fees of the Depositary, for all taxes in connection with the
deposit of the Shares with the Depositary and the issuance of the Depositary
Receipts as provided in Section 3 hereof and all costs and expenses of the
printing and distribution of all documents in connection with such offering.
Except as provided in this Section 7, the Company will have no responsibility to
the Underwriters for the Underwriters' own costs and expenses, including the
fees of Underwriters' Counsel and any advertising expenses in connection with
any offer the Underwriters may make.
(b) If the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or
comply with any provision hereof, the Company will, subject to demand by
the Representatives, reimburse
17
the Underwriters for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Shares.
8. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls such Underwriter within the
meaning of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, as originally filed or in any amendment
thereof, or in any Interim Prospectus, the Basic Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Representatives on
behalf of any Underwriter specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Depositary
Shares which are the subject thereof if such person did not receive a copy of
the Final Prospectus at or prior to the confirmation of the sale of such
Depositary Shares to such person in any case where such delivery is required by
the Securities Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Interim Prospectus was corrected in the
Final Prospectus, unless such failure to deliver the Final Prospectus was a
result of noncompliance by the Company with Section 5(d) hereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Interim Prospectus or
the Final Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that the
18
same was made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the
Representatives on behalf of such Underwriter specifically for use in the
preparation thereof, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. The statements set forth in the
last paragraph of the cover page and under the heading "Underwriting" in
the Final Prospectus constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in the
Registration Statement and the Final Prospectus, as the case may be, and
you, as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and either (i) the
indemnifying party or parties and the indemnified party or parties
mutually agree or (ii) representation of both the indemnifying party or
parties and the indemnified party or parties by the same counsel is
inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, the indemnified
party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have
employed counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a) representing the
indemnified parties under subparagraph (a), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the
19
action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party. No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if
there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement
or judgment.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph
(a) of this Section 8 is due in accordance with its terms but is for any
reason held by a court to be unavailable from the Company on grounds of
policy or other similar grounds, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discounts appearing on the cover page of
the Final Prospectus bear to the public offering prices appearing thereon
and the Company is responsible for the balance; provided, however, that
(i) in no case shall any Underwriter (except as may be provided in any
agreement among underwriters) be responsible for any amount in excess of
the underwriting discounts applicable to the Shares purchased by such
Underwriter hereunder and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of the Securities
Act shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to clauses (i) and (ii) of this subparagraph (d). Any party entitled
to contribution will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties under
this subparagraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be
20
sought from any other obligation it or they may have hereunder or
otherwise than under this subparagraph (d).
9. DEFAULT BY AN UNDERWRITER. If, on either Delivery Date, any one or
more Underwriters shall fail to purchase and pay for all of the Shares agreed
to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the number of Depositary Shares in respect of Firm Shares set forth
opposite their names in Schedule II hereto bear to the aggregate number of
Depositary Shares in respect of Firm Shares set opposite the names of the
remaining Underwriters) the Shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date; provided,
however, that in the event that the aggregate number of Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date shall exceed 10% of the aggregate number of the Shares, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Shares, and if such
non-defaulting Underwriters do not purchase all the Shares, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the
Underwriters to purchase, and of the Company to sell, the Option Shares) will
terminate without liability to any non-defaulting Underwriters or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the particular Delivery Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
herein contained shall relieve any defaulting Underwriter of its liability,
if any, to the Company and any non-defaulting Underwriter for damages
occasioned by its default hereunder.
10. [TO BE INCLUDED IN GLOBAL OFFERINGS: REPRESENTATIONS AND WARRANTIES OF
THE UNDERWRITERS.
Each Underwriter represents and warrants to the Company that (i) it has
not offered or sold and prior to the date six months after the date of issue of
the Shares will not offer or sell Shares in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
public offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Xxx 0000 with
respect to anything done by it in relation to the Shares in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on, and
will only issue or pass on, in the United Kingdom any document received by it in
connection with the issue of the Shares to a person who is of a kind described
in Article 11(3) of the Financial Services Xxx 0000 (Investment Advertisement)
(Exemptions) Order 1996 or is a person to whom the document may otherwise
lawfully be issued or passed on.]
11. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company at or
prior to delivery of and payment for all the Firm Shares, if, prior to such time
(i) trading in securities generally on the NYSE or the over-the- counter market
shall have been suspended or limited or minimum
21
prices shall have been established on the NYSE or the over-the-counter market,
(ii) a banking moratorium shall have been declared either by federal or New York
State authorities, (iii) any new restriction materially affecting the
distribution of the Shares shall have become effective or trading in any
securities of the Company shall have been suspended or halted by any national
securities exchange, the National Association of Securities Dealers, Inc. or the
Commission, (iv) the United States becomes engaged in hostilities or there is an
escalation in hostilities involving the United States or there is a declaration
of a national emergency or war by the United States, or (v) there shall have
been such a material adverse change in national or international political,
financial or economic conditions, national or international equity markets or
currency exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Shares.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers (as such officers) and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of its officers or directors or any controlling person within the
meaning of the Securities Act, and will survive delivery of the payment for the
Shares.
13. NOTICES. All communications hereunder will be in writing, and, if
sent to the Representatives will be mailed, delivered, telegraphed or telexed
and confirmed to them, at the address specified in Schedule I hereto; or, if
sent to the Company will be mailed, delivered, telegraphed or telexed and
confirmed to it at 3 World Financial Center, New York, New York 10285,
Attention: Chief Financial Officer.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their successors and, to the extent and
only to the extent stated in Section 8 hereof, the officers and directors and
controlling persons referred to in Section 8 hereof, and except as provided
in Section 8 hereof, no person other than the parties hereto and their
respective successors will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
XXXXXX BROTHERS HOLDINGS INC.
By:
-----------------------------
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX BROTHERS INC.
By:
---------------------------------------
Title:
Acting on behalf of the
Representatives named in
Schedule I annexed hereto and
the several Underwriters named
in Schedule II annexed hereto.
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-
Representative and Address: Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Description of Shares:
Title:
Number of shares of Firm Shares:
Maximum number of shares of Option Shares:
Price per share:
Time of payment of dividends:
Sinking fund provisions:
Redemption provisions:
Repayment provisions:
Listing:
Price to Public:
First Delivery Date, Time and Location:
Date:
Time: 10:00 A.M., New York City time
Location: Xxxxxx Brothers Holdings Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE II
NUMBER OF
DEPOSITARY SHARES
IN RESPECT OF FIRM
UNDERWRITERS SHARES PURCHASED
------------ ------------------
Xxxxxx Brothers Inc.......................................
---------
Total............................................
=========
