EXHIBIT 1.2
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XXXXXXXX FINANCIAL INC.
(a Delaware corporation)
[____________] shares
[COMMON STOCK (PAR VALUE $0.01 PER SHARE)]
[TITLE OF SERIES OF PREFERRED STOCK]
UNDERWRITING AGREEMENT
[DATE]
[NAMES OF REPRESENTATIVES]
for themselves and as Representatives for the Underwriters
named in Schedule A, attached hereto (the "Representatives")
[ADDRESS OF REPRESENTATIVES]
Ladies and Gentlemen:
Xxxxxxxx Financial Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several underwriters named in Schedule A
attached hereto (collectively, the "Underwriters"), subject to the terms and
conditions set forth herein, an aggregate of [_________] shares of the Company's
[common stock, par value $0.01 per share (the "Common Stock"),][preferred stock
(the "Preferred Stock")]. Subject to the terms and conditions set forth herein,
the Underwriters agree to purchase from the Company, severally and not jointly,
the respective number of [shares of Common Stock][shares of Preferred Stock] set
forth in Schedule A (collectively, the "Shares") opposite their respective names
at the purchase price set forth herein.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-
[______]) relating to its shares of Common Stock, shares of preferred stock and
certain debt securities of the Company. Such registration statement has been
declared effective by the Commission. Such registration statement and the
prospectus constituting a part thereof, including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the Securities Exchange Act of 1934 (the "1934 Act"), the Securities Act of 1933
(the "1933 Act"), or otherwise, are collectively referred to herein as the
"Registration Statement" and the "Prospectus," respectively; provided, however,
that any supplement to the Prospectus shall be deemed to have supplemented the
Prospectus only with respect to the offering of securities to which such
supplement relates.
SECTION 1. Representations and Warranties by the Company. The
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Company represents and warrants to the Underwriters as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the date hereof, complied
in all
material respects with the requirements of the 1933 Act, the rules and
regulations of the Commission thereunder (the "Regulations") and the Trust
Indenture Act of 1939 (the "1939 Act"). The Registration Statement and the
Prospectus, at the time the Registration Statement became effective and as
of the date hereof, do not contain, and as of the Closing Time will 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; provided, however, that the
representations and warranties in this subsection shall not apply to (i)
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives expressly
for use in the Registration Statement or Prospectus or (ii) that part of
the Registration Statement that shall constitute the Statement of
Eligibility and Qualification of the Trustee under the 1939 Act on Form T-
1.
(b) The financial statements and the supporting schedules included in
the Registration Statement and Prospectus present fairly the financial
position of the Company and its subsidiaries on a consolidated basis, as of
the dates indicated, and the respective results of operations for the
periods specified, in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved.
(c) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder, and,
when read together and with the other information in the Prospectus, at the
time the Registration Statement became effective and at the time any
amendments thereto become effective or hereafter during the periods
specified in Section 3(b), did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated in or contemplated by the Registration Statement and Prospectus,
there has not been any material adverse change in the financial condition
of the Company and its subsidiaries considered as one enterprise, or in the
results of operations or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
power and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement.
(f) The execution and delivery of this Agreement and the consummation
of the transactions contemplated herein, have been duly authorized by all
necessary corporate action and will not result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of any
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lien, charge or encumbrance upon any property or assets of the Company,
pursuant to any indenture, loan agreement, contract or other agreement or
instrument to which the Company is a party or by which the Company may be
bound or to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or, to the best of its knowledge, any
order, rule or regulation applicable to the Company of any court or of any
federal, state or other regulatory authority or other governmental body
having jurisdiction over the Company.
(g) The description of the authorized, issued and outstanding capital
stock of the Company under "Description of Capital Stock" and
"Capitalization" in the Prospectus is accurate as of the date indicated in
such sections.
(h) The Shares have been duly authorized for issuance and sale
pursuant to this Agreement and such Shares, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration
set forth in this Agreement, will be validly issued, fully paid and non-
assessable and the issuance of the Shares is not subject to preemptive or
other similar rights.
(i) If the Shares consist of shares of Common Stock or shares of
Preferred Stock that are convertible into shares of Common Stock, the
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable,
and such capital stock conforms in all material respects as to legal
matters to the description thereof in the Prospectus.
(j) If the Shares consist of shares of Preferred Stock that are
convertible into shares of Common Stock, the shares of Common Stock
issuable upon conversion of such Preferred Stock have been duly authorized
and reserved for issuance upon such conversion by all necessary corporate
action and, when issued upon conversion, will be validly issued, fully paid
and non-assessable, and the issuance of such shares of Common Stock upon
such conversion will not be subject to preemptive or other similar rights.
(k) PricewaterhouseCoopers LLP are independent certified public
accountants as required by the 1933 Act and the Regulations.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with an
offering of the Shares shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter participating in
such offering.
SECTION 2. Purchase and Sale; Closing.
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(a) On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions herein set
forth, the Company agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, the
number of Shares set forth in Schedule A hereto opposite to its name at a
purchase price equal to $[___] per Share.
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(b) Payment of the purchase price for, and delivery of, the Shares to
be purchased by the Underwriters shall be made at the office of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or at such other place as
shall be agreed upon by the Representatives and the Company, at 10:00 a.m., New
York City time, on [DATE], or such other date and time as the Company and the
Underwriters may agree in upon in writing. Such time and date of payment and
delivery are herein referred to as the "Closing Time." Payment shall be made to
the Company by wire transfer of immediately available funds to a bank account
designated by the Company, against delivery to the Underwriters of the Shares
purchased by the Underwriters.
SECTION 3. Covenants of the Company. The Company covenants with
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the Underwriters as follows:
(a) The Company will prepare a Prospectus Supplement relating to the
Shares setting forth the names of the Underwriters, the number of Shares
covered thereby, the price at which the Shares are to be purchased by the
Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, and such other information as
the Representatives of the Underwriters and the Company may deem
appropriate in connection with the offering of the Shares. The Company
will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 of the Regulations, and will
furnish to the Underwriters named therein as many copies of the Prospectus
and such Prospectus Supplement (excluding schedules, exhibits and all
documents incorporated or deemed to be incorporated by reference in the
Prospectus, unless requested by the Representatives in writing) as the
Representative shall reasonably request.
(b) If, at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Shares, any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend
or supplement the Prospectus so that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such counsel, at any such time
to amend or supplement the Registration Statement or the Prospectus to
comply with the requirements of the 1933 Act or the Regulations, the
Company will promptly prepare and file with the Commission such amendment
or supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements; provided that, notwithstanding the provisions of Section 5
hereof, the Underwriters shall pay or cause to be paid all fees, expenses
and disbursements relating to any such amendments or supplements if such
amendments or supplements are dated or filed with the Commission after 9
months from the date hereof.
(c) The Company will make generally available to its security holders
earnings statements (which need not be audited) satisfying the provisions
of Section 11(a) of the 1933 Act and Rule 158 thereunder no later than 45
days after the end of any 12-
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month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) commencing on the first day of the first fiscal
quarter of the Company commencing after the "effective date of the
Registration Statement" (as defined in Rule 158), which statements shall
cover the said 12-month periods.
(d) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Shares, the Company will give the
Representatives notice of its intention to file any amendment to the
Registration Statement, or any amendment or supplement to the Prospectus
(only insofar as such amendment or supplement to the Prospectus relates to
the Shares to be issued and sold pursuant to the terms and conditions
hereof), whether pursuant to the 1934 Act, the 1933 Act or otherwise (other
than the filing of any document required to be filed under the 1934 Act
which, upon filing, is deemed to be incorporated by reference into the
Registration Statement or Prospectus), will furnish the Representative with
copies of any such amendment or supplement or other documents proposed to
be filed within a reasonable time in advance of filing, and will not file
any such amendment or supplement or other documents in a form to which the
Representatives or counsel for the Underwriters shall reasonably object.
(e) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Shares, the Company will notify
the Representatives promptly, and confirm such notice in writing, of (i)
the effectiveness of any amendment to the Registration Statement, (ii) the
filing of any amendment or supplement to the Prospectus (other than the
filing of any document required to be filed under the 1934 Act which, upon
filing, is deemed to be incorporated by reference into the Registration
Statement or Prospectus), (iii) the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any amendment or supplement to the Prospectus (only insofar as such
comments relate to any amendment or supplement to the Prospectus relating
to the Shares to be issued and sold pursuant to the terms and conditions
hereof), (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information (only insofar as such requests relate to any
amendment or supplement to the Prospectus relating to the Shares to be
issued and sold pursuant to the terms and conditions hereof), and (v) the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. The Company will use reasonable efforts to prevent the issuance
of any order suspending the effectiveness of the Registration Statement
during such periods when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Shares, and, if any stop order is
issued, to use reasonable efforts to obtain the withdrawal of such stop
order at the earliest possible moment.
(f) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Shares, the Company will deliver
to the Representatives as many conformed copies of the registration
statement as originally filed and of each amendment thereto, excluding
schedules, exhibits and all documents incorporated or deemed to be
incorporated in the Prospectus by reference (unless so
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requested by the Representatives in writing), as the Representatives may
reasonably request.
(g) The Company will endeavor in good faith to qualify the Shares for
offering and sale under the applicable securities laws of such
jurisdictions as the Representatives shall reasonably request; provided,
however, that the Company shall not be obligated to file any general
consent to service or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not now so subject or
qualified. The Company will maintain such qualifications in effect for as
long as may be required for the distribution of the Shares.
(h) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Shares, the Company will
file all documents required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act within the
time periods required by the 1934 Act and the regulations thereunder.
SECTION 4. Conditions of Underwriters' Obligations. The several
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obligations of the Underwriters to purchase the Shares pursuant to the terms
hereof are subject to the accuracy of the representations and warranties on the
part of the Company herein contained, to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of all of its covenants and other
obligations set forth herein and to the following further conditions:
(a) At the Closing Time (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) the
rating assigned by Xxxxx'x Investors Service, Inc. and Standard & Poor's
Corporation to any long-term debt securities or preferred stock of the
Company shall not have been lowered since the execution of this Agreement
and (iii) there shall not have come to the Representatives' attention any
facts that would cause the Representatives to believe that the Prospectus,
together with the applicable Prospectus Supplement, at the time it was
required to be delivered to a purchaser of the Shares, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at such time, not misleading.
(b) At the Closing Time, the Representatives shall have received:
(1) The written opinion, dated as of the Closing Time, of counsel
for the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware.
(ii) This Agreement has been duly authorized, executed
and delivered by the Company.
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(iii) The Shares have been duly authorized by the Company
and, when issued and delivered against payment of the purchase
price for such Shares set forth in this Agreement, will be
validly issued, fully paid and non-assessable and the Shares are
not subject to the preemptive or other similar rights of any
stockholder of the Company.
(iv) If any of the Shares consist of shares of Preferred
Stock that are convertible into shares of Common Stock, the
shares of Common Stock issuable upon conversion thereof have been
duly authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly issued,
fully paid and non-assessable, and the issuance of such shares of
Common Stock upon such conversion will not be subject to any
preemptive or similar rights.
(v) The Shares conform in all material respects as to
legal matters to the descriptions thereof in the Prospectus.
(vi) The Registration Statement is effective under the
1933 Act and, to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(vii) The Registration Statement and Prospectus, and each
amendment or supplement thereto (except for the financial
statements and other financial data included therein or omitted
therefrom and the Statement of Eligibility and Qualification of
the Trustee on Form T-1, as to which such counsel need express no
opinion), as of their respective effective or issue dates, appear
on their face to have been appropriately responsive in all
material respects to the requirements of the 1933 Act, the 1939
Act and the Regulations.
(viii) The documents incorporated by reference in the
Prospectus (except for the financial statements and other
financial data included therein or omitted therefrom, as to which
such counsel need express no opinion), as of the dates they were
filed with the Commission, appear on their face to have been
appropriately responsive in all material respects to the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder.
(ix) The execution and delivery of this Agreement, the
fulfillment of the terms herein set forth and the consummation of
the transactions herein contemplated will not conflict with the
charter or by-laws of the Company.
Such opinion shall also state that such counsel has not verified,
and is not passing upon and does not assume any responsibility for,
the accuracy,
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completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, other than those mentioned
in Section 4(b)(1)(v) hereof. Such counsel has, however, generally
reviewed and discussed such statements with certain officers of the
Company and its auditors. In the course of such review and discussion,
no facts have come to such counsel's attention that lead such counsel
to believe (i) that the Registration Statement or any amendment
thereto (except for the financial statements and other financial data
included therein or omitted therefrom and the Statement of Eligibility
and Qualification of the Trustee on Form T-1, as to which such counsel
need not comment), at the time the Registration Statement or any such
amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (ii) that the Prospectus or any amendment or supplement
thereto (except for the financial statements and other financial data
included therein or omitted therefrom, as to which such counsel need
not comment), at the time the Prospectus (together with any such
amendment or supplement relating to the Shares) was issued or at the
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits 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.
(2) The written opinion, dated as of the Closing Time, of the
General Counsel of the Company to the effect that (i) the Company is
duly qualified to transact business and is in good standing in the
states in which such qualification is required, (ii) the execution and
delivery of this Agreement, the fulfillment of the terms herein in set
forth and the consummation of the transactions herein contemplated
will not conflict with or constitute a breach of, or default under,
the charter or by-laws of the Company or any agreement, indenture or
other instrument known to such counsel of which the Company or any of
its subsidiaries is a party or by which it or any of them is bound, or
any law, administrative regulation or administrative or court order
known to him to be applicable to the Company and (iii) the description
of the authorized, issued and outstanding capital stock of the Company
under the headings "Description of Capital Stock" and
"Capitalization," if applicable, in the Prospectus is accurate as of
the dates indicated in such sections, and the issued and outstanding
shares of capital stock of the Company have been duly authorized and
validly issued, and are fully paid and non-assessable.
(3) The written opinion, dated as of the applicable Closing Time,
of [____________], counsel for the Underwriters, with respect to the
matters set forth in Section 4(b)(1)(i) to Section 4(b)(1)(vii),
inclusive, and Section 4(b)(1)(ix) of this Agreement.
(c) At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the financial
condition of the Company and its subsidiaries considered as one enterprise,
or in the results of operations or business
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prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a
Vice President of the Company, dated as of the Closing Time, to the effect
that (i) there has been no such material adverse change and (ii) the other
representations and warranties of the Company contained in Section 1 hereof
are true and correct with the same force and effect as though expressly
made at and as of the Closing Time.
(d) The Representatives shall have received from
PricewaterhouseCoopers LLP or other independent certified public
accountants acceptable to the Representatives a letter, dated the date
hereof, in form and substance satisfactory to the Representatives
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(e) The Representatives shall have received from
PricewaterhouseCoopers LLP or other independent certified public
accountants acceptable to the Representatives a letter, dated the Closing
Time, reconfirming or updating the letter required by Section 4(d) above to
the extent that may be reasonably requested by the Representative.
If any condition specified in this Section 4 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
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incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto and the printing of this Agreement, (ii) the preparation, issuance and
delivery of the Shares to the Underwriters, (iii) the fees and disbursements of
the Company's counsel and accountants, (iv) the qualification of the Shares
under securities laws in accordance with the provisions of Section 3(g),
including filing fees and the fee and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any blue sky surveys and legal investment surveys, (v) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
registration statements and all amendments thereto, of the Registration
Statement and any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky surveys and legal investment surveys, (vii) the fees, if
any, of rating agencies and (viii) the fees and expenses, if any, incurred in
connection with the listing of the Shares on any national securities exchange.
If this Agreement is terminated by the Representative in accordance
with the provisions of Section 4 or Section 9(i), the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
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SECTION 6. Indemnification. (a) The Company agrees to indemnify
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and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto), or any omission or alleged omission therefrom, of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom, of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto), or was made in reliance upon the
Statement of Eligibility and Qualification of the Trustee under the 1939
Act on Form T-1.
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
In no case shall the Company be liable under this indemnity agreement
with respect to any claim made against any Underwriter or any such controlling
person unless the Company shall be notified in writing of the nature of the
claim within a reasonable time after the assertion thereof, but failure so to
notify the Company shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. The Company shall be
entitled to participate at its own expense in the defense, or if it so elects
within a reasonable time after receipt of such notice, to assume the defense for
any suit brought to enforce any such claim, but if the Company elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Underwriter or Underwriters or controlling person or
persons, defendant or defendants in any suit so brought. In the event that the
Company elects to assume the defense of any such suit and retains such counsel,
the Underwriter or Underwriters or controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel thereafter retained by them. In the event that the parties to any such
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action (including impleaded parties) include both the Company and one or more
Underwriters and any such Underwriter shall have been advised by counsel chosen
by it and satisfactory to the Company that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company, the Company shall not have the right to assume the
defense of such action on behalf of such Underwriter and will reimburse such
Underwriter and any person controlling such Underwriter as aforesaid for the
reasonable fees and expenses of any counsel retained by them, it being
understood that the Company shall not, in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
Underwriters and controlling persons, which firm shall be designated in writing
by the Representative. The Company agrees to notify the Representative within a
reasonable time of the assertion of any claim against it, any of its officers or
directors or any person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act, in connection with the sale of the Shares.
(b) Each Underwriter severally agrees that it will indemnify and hold
harmless the Company and each of its officers who signs the Registration
Statement and each of its directors and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company, but only with respect to statements or
omissions made in the Prospectus (or any amendment or supplement thereto) or the
Registration Statement (or any amendment thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). In case any action shall be brought against
the Company or any person so indemnified based on the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company and each person so indemnified shall have the rights
and duties given to the Underwriters, by the provisions of subsection (a) of
this Section.
SECTION 7. Contribution. If the indemnification provisions
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provided in Section 6 above should under applicable law be unenforceable in
respect of any losses, liabilities, claims, damages or expenses (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the Shares and
also the relative fault of the Company and the Underwriters in connection with
the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the Prospectus, bear to the aggregate
public offering price of the Shares. The relative fault shall be determined by
reference to, among other things, whether the indemnified party failed to give
the notice required under Section 6 above including the consequences of such
failure, and whether the untrue or alleged untrue
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statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission of the Company and
the Underwriters, directly or through the Representative of the Underwriters.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by per capita
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to above in this
Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this Section
7 to contribute are several in proportion to their respective underwriting
obligations and not joint.
The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act; and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer who signs the Registration
Statement and each director of the Company and to each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
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Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Shares to the Underwriters.
SECTION 9. Termination. The Representative may terminate this
-----------
Agreement, immediately upon notice to the Company, at any time prior to the
Closing Time (i) if there has been, since the date hereof or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the financial condition of the Company and its
subsidiaries considered as one enterprise, or in the results of operations or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representative,
impracticable to market the
12
Shares or enforce contracts for the sale of the Shares, or (iii) if trading in
the Common Stock of the Company has been suspended by the Commission or a
national securities exchange or if trading on either the American Stock Exchange
or the New York Stock Exchange has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal or New York authorities. In the event of any such termination,
(x) the covenants set forth in Section 3 with respect to any offering of Shares
shall remain in effect so long as any Underwriter retains beneficial ownership
of any such Shares purchased from the Company pursuant to the terms of this
Agreement and (y) the covenant set forth in Section 3(c), the provisions of
Section 5, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7 and the provisions of Section 8 shall remain
in effect.
SECTION 10. Default. If one or more of the Underwriters
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participating in an offering of Shares shall fail at the Closing Time to
purchase the Shares which it or they are obligated to purchase hereunder (the
"Defaulted Shares"), then the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Shares in such amounts as may be agreed upon and upon the terms
herein set forth. If, however, during such 24 hours the Representative shall
not have completed such arrangements for the purchase of all of the Defaulted
Shares, then:
(a) if the number of Defaulted Shares does not exceed 10% of the
aggregate number of Shares to be purchased pursuant to terms of this
Agreement, the non-defaulting Underwriters hereof shall be obligated to
purchase the full amount thereof in the proportions that their respective
underwriting obligations thereunder bear to the underwriting obligations of
all such non-defaulting Underwriters; or
(b) if the number of Defaulted Shares exceeds 10% of the aggregate
number of Shares to be purchased pursuant to the terms of this Agreement,
this Agreement shall terminate without any liability on the part of any
non-defaulting Underwriters or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either the Representative or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven (7) days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative; notices to the Company shall be directed to it
at:
13
Xxxxxxxx Financial Inc.
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Vice President - Legal and Corporate Secretary
SECTION 12. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon the Company and any Underwriter who becomes a party hereto,
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Shares from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
SECTION 14. Counterparts. This Agreement may be executed any number
------------
of counterparts and, if executed in more than one counterpart, the executed
counterparts shall constitute a single instrument.
14
Very truly yours,
-----------------
XXXXXXXX FINANCIAL INC.
By: ________________________
Name:
Title:
CONFIRMED AND ACCEPTED
AS OF THE DATE HEREOF:
[NAMES OF REPRESENTATIVES]
for themselves and on behalf
of the several Underwriters
named in Schedule A hereto
By: ___________________________________
Name:
Title:
15
SCHEDULE A
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Underwriters Number of Shares to be Purchased
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TOTAL:
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