Exhibit 1-a
UNDERWRITING AGREEMENT
(Debt Securities)
_____________, 199_
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell $ aggregate principal amount
of % Notes Due (the "Offered Securities").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate principal amount
of the Offered Securities set forth below opposite their names at a purchase
price of , plus accrued interest, if any, from to the
date of payment and delivery (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Xxxx Xxxxxx Xxxxxxxx Inc.]
[Xxxxxx Xxxxxxx & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on ,
199_, or at such other time, not later than 5:00 p.m. (New York time) on
, 199_, as shall be designated by us. The time and date of such
payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated June 2, 1997, and the Prospectus Supplement dated ,
199_, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. Underwriting
Agreement Standard Provisions (Debt Securities, Warrants, Purchase Contracts
and Units) dated June 2, 1997 (the "Standard Provisions"), a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control, (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[XXXX XXXXXX XXXXXXXX INC.]
[XXXXXX XXXXXXX & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By XXXXXX XXXXXXX & CO. INCORPORATED
By:__________________________________________
Name:
Title:
______________________________________________________________________________
Accepted:
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:_______________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Warrants)
__________, 199_
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell [number and title of warrants] Warrants
(the "Offered Securities"). The Offered Securities are to be issued pursuant
to the provisions of a Warrant Agreement (the "Warrant Agreement") dated as of
[ ] between the Company and [name of Warrant Agent], as
Warrant Agent.
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
per Offered Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Xxxx Xxxxxx Xxxxxxxx Inc.]
[Xxxxxx Xxxxxxx & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on ,
199_, or at such other time, not later than 5:00 p.m. (New York time) on
, 199_, as shall be designated by us. The time and date of such
payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated , 1997, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Offered Securities
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Price to Public:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Form:
Currency in which exercise payments shall be made:
Minimum number of Warrants exercisable by any holder on any day:
Maximum number of Warrants exercisable on any day: [In the
aggregate] [By any beneficial owner]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other Terms:
[Specify procedures for purchase and delivery of bearer
Universal Warrants.]
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., Underwriting
Agreement Standard Provisions (Debt Securities, Warrants, Purchase Contracts
and Units) dated June 2, 1997 (the "Standard Provisions"), a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control, (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[XXXX XXXXXX XXXXXXXX INC.]
[XXXXXX XXXXXXX & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By XXXXXX XXXXXXX & CO. INCORPORATED
By:______________________________________
Name:
Title:
______________________________________________________________________________
Accepted:
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:_____________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Prepaid Purchase Contracts)
__________, 199_
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell [number and title of purchase
contracts] Purchase Contracts (the "Offered Securities"). The Offered
Securities are to be issued pursuant to the provisions of the [Senior Debt
Indenture] [Subordinated Debt Indenture].
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
per Offered Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Xxxx Xxxxxx Xxxxxxxx Inc.]
[Xxxxxx Xxxxxxx & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on ,
199_, or at such other time, not later than 5:00 p.m. (New York time) on
, 199_, as shall be designated by us. The time and date of such
payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated , 1997, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Offered Securities
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. Underwriting
Agreement Standard Provisions (Debt Securities, Warrants, Purchase Contracts
and Units) dated June 2, 1997 (the "Standard Provisions"), a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control, (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[XXXX XXXXXX XXXXXXXX INC.]
[XXXXXX XXXXXXX & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By XXXXXX XXXXXXX & CO. INCORPORATED
By:_____________________________________
Name:
Title:
______________________________________________________________________________
Accepted:
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:______________________________
Name:
Title:
UNDERWRITING AGREEMENT
(Units)
__________, 199_
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co., a Delaware corporation (the
"Company"), proposes to issue and sell [number and title of units] Units (the
"Offered Securities") consisting of [$ aggregate principal amount of
% Notes Due ] [number and title of Warrants] [number and title
of Purchase Contracts]. The Offered Securities are to be issued pursuant to
the provisions of a Unit Agreement (the "Unit Agreement") dated as of [
] among the Company, The Chase Manhattan Bank, as Agent, and the
holders from time to time of the Units. [The Notes included in the Offered
Securities will be issued pursuant to the [specify the indenture].] [The
Warrants included in the Offered Securities will be issued pursuant the
[specify the warrant agreement.]] [The Purchase Contracts included in the
Offered Securities will be issued pursuant to the Unit Agreement.]
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of
, plus accrued interest, if any, from to the date of payment and
delivery (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Xxxx Xxxxxx Xxxxxxxx Inc.]
[Xxxxxx Xxxxxxx & Co. Incorporated]
[Insert syndicate list]
______________
Total...... ==============
The Underwriters will pay for the Offered Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on
199_, or at such other time, not later than 5:00 p.m. (New York time) on
199_, as shall be designated by us. The time and date of such payment
and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated June 2, 1997, and the Prospectus Supplement dated
, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Other Terms:
Terms of Warrants
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Currency in which exercise payments shall be made:
[Maximum number of Warrants exercisable on any day: [In the
aggregate] [By any beneficial owner]]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Other Terms:
Terms of Purchase Contracts
Designation of the Series of Purchase Contracts:
[Purchase][Sale] Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have
the meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the
document entitled Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. Underwriting
Agreement Standard Provisions (Debt Securities, Warrants, Purchase Contracts
and Units) dated June 2, 1997 (the "Standard Provisions"), a copy of which is
attached hereto, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that (i) if any term
defined in such document is otherwise defined herein, the definition set forth
herein shall control, (ii) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[XXXX XXXXXX XXXXXXXX INC.]
[XXXXXX XXXXXXX & CO. INCORPORATED]
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By XXXXXX XXXXXXX & CO. INCORPORATED
By:______________________________________
Name:
Title:
______________________________________________________________________________
Accepted:
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:_________________________________
Name:
Title:
XXXXXX XXXXXXX, XXXX XXXXXX, DISCOVER & CO.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
June 2, 1997
From time to time, Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co.,
a Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Terms defined
in the Underwriting Agreement are used herein as therein defined.
The Company proposes to issue from time to time (a) its debt
securities ("Debt Securities"), (b) warrants to purchase Debt Securities
("Debt Warrants") or to purchase or sell (i) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (ii) currencies or
composite currencies or (iii) commodities ("Universal Warrants", and together
with Debt Warrants, the "Warrants") and (c) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (i) securities
of an entity unaffiliated with the Company, a basket of such securities, an
index or indices of such securities or any combination of the above, (ii)
currencies or composite currencies or (iii) commodities. Debt Securities,
Purchase Contracts and Warrants or any combination thereof may be offered in
the form of Units ("Units"). As used herein, the term "Debt Securities"
includes prepaid Purchase Contracts.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Debt Securities, Warrants, Purchase Contracts and Units
(collectively, the "Securities") and has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement") pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"),
specifically relating to the Securities offered pursuant to this Agreement
(the "Offered Securities"). The term Registration Statement means the
registration statement as amended to the date of this Agreement. The term
Basic Prospectus means the prospectus included in the Registration Statement.
The term Prospectus means the Basic Prospectus together with the Prospectus
Supplement. The term preliminary prospectus means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus", "Prospectus"
and "preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement", "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
The term "Contract Securities" means the Offered Securities, if
any, to be purchased pursuant to the delayed delivery contracts substantially
in the form of Schedule I hereto, with such changes therein as the Company may
approve (the "Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters as of the date of the Underwriting
Agreement :
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will
comply, in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iv) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(b) do not apply (A)
to statements or omissions in the Registration Statement or the Prospectus
based upon information concerning any Underwriter furnished to the Company in
writing by such Underwriter through the Manager expressly for use therein or
(B) to those parts of the Registration Statement that constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the trustees referred to in the
Registration Statement.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) Each of the Senior Debt Indenture dated as of April 15, 1989, as
supplemented by a First Supplemental Senior Indenture dated as of May 15,
1991, a Second Supplemental Senior Indenture dated as of April 15, 1996 and a
Third Supplemental Senior Indenture dated as of June 1, 1997 (as so
supplemented, the "Senior Debt Indenture"), and the Subordinated Debt
Indenture dated as of April 15, 1989, as supplemented by a First Supplemental
Subordinated Indenture dated as of May 15, 1991, a Second Supplemental
Subordinated Indenture dated as of April 15, 1996 and a Third Supplemental
Subordinated Indenture dated as of June 1, 1997 (as so supplemented, the
"Subordinated Debt Indenture"), has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company or by Xxxxxx Xxxxxxx Group Inc. (a predecessor to the Company)
("Xxxxxx Xxxxxxx") and assumed by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(g) The Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(h) The Universal Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(i) The Unit Agreement, if any, has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(j) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the relevant
Indenture, the Debt Warrant Agreement, the Universal Warrant Agreement and the
Unit Agreement, as the case may be, and delivered to and paid for (A) by the
Underwriters in accordance with the terms of the Underwriting Agreement, in
the case of the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the case of
Contract Securities, and (B) upon exercise of the Debt Warrants pursuant to
the Debt Warrant Agreement, in the case of Debt Warrant Securities, will be
entitled to the benefits of the relevant Indenture, the Debt Warrant
Agreement, the Universal Warrant Agreement and the Unit Agreement, as the case
may be, and will be valid and legally binding obligations of the Company, in
each case enforceable in accordance with their respective terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(k) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(l) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Senior Debt
Indenture, the Subordinated Debt Indenture, the Offered Securities, any
Delayed Delivery Contracts, the Debt Warrant Agreement, the Universal Warrant
Agreement and the Unit Agreement, if any, will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
of its consolidated subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this Agreement,
the Senior Debt Indenture, the Subordinated Debt Indenture, the Offered
Securities, any Delayed Delivery Contract, the Debt Warrant Agreement, the
Universal Warrant Agreement and the Unit Agreement, if any, except such as may
be required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Offered Securities; provided,
however, that no representation is made as to whether the purchase of the
Offered Securities constitutes a "prohibited transaction" under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto effected
subsequent to the date of the Underwriting Agreement).
(n) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated subsidiaries is a
party or to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are
not described, filed or incorporated as required.
(o) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain
or file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(p) Xxxx Xxxxxx Xxxxxxxx Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(q) Xxxxxx Xxxxxxx & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered with
the Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
(r) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus provides for sales
of Offered Securities pursuant to Delayed Delivery Contracts, the Company
hereby authorizes the Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed Delivery Contracts
may be entered into only with institutional investors approved by the Company
of the types set forth in the Prospectus. On the Closing Date, the Company
will pay to the Manager as compensation for the accounts of the Underwriters
the commission set forth in the Underwriting Agreement in respect of the
Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts
with institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; and such reduction shall be applied to the commitment
of each Underwriter pro rata in proportion to the amount of Offered Securities
set forth opposite such Underwriter's name in the Underwriting Agreement,
except to the extent that the Manager determines that such reduction shall be
applied in other proportions and so advises the Company; provided, however,
that the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less the aggregate
amount of Contract Securities.
3. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided in this
Section 4, payment for the Underwriters' Securities shall be made to the
Company in immediately available funds at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Underwriters' Securities
registered in such names and in such denominations as the Manager shall
request in writing not less than one full business day prior to the date of
delivery, with any transfer taxes payable in connection with the transfer of
the Underwriters' Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities
(i) that are Debt Securities in bearer form or are Units that contain Debt
Securities in bearer form shall be effected by delivery of a single temporary
global Security without coupons (the "Temporary Global Security") evidencing
the Offered Securities that are or include Debt Securities in bearer form and
(ii) that are Debt Warrants in bearer form or are Units that (a) contain Debt
Warrants in bearer form and (b) contain no other Debt Securities in bearer
form shall be effected only by delivery of a single permanent global Debt
Warrant (the "Global Debt Warrant") evidencing the Offered Securities that are
or include Debt Warrants in bearer form, in each case to a common depositary
for Xxxxxx Guaranty Trust Company of New York, Brussels office, as operator of
the Euro-clear System ("Euro-clear"), and for Cedel Bank, Societe Anonyme
("Cedel") for credit to the respective accounts at Euro-clear or Cedel of each
Underwriter or to such other accounts as such Underwriter may direct. Any
Temporary Global Security or Global Debt Warrant shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the
Company in the net amount due to the Company for such Temporary Global
Security or Global Debt Warrant, as the case may be, by the method and in the
form set forth herein. The Company shall cause global and, if applicable,
definitive Debt Securities in bearer form to be prepared and delivered in
exchange for such Temporary Global Security in such manner and at such time as
may be provided in or pursuant to the Senior Debt Indenture or the
Subordinated Debt Indenture, as the case may be; provided, however, that the
Temporary Global Security shall be exchangeable for other Debt Securities in
bearer form only on or after the date specified for such purpose in the
Prospectus. Debt Warrants in bearer form shall be evidenced only by a Global
Debt Warrant until their expiration.
5. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its consolidated
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto effected subsequent to the
execution and delivery of the Underwriting Agreement), that, in the judgment
of the Manager, is material and adverse and that makes it, in the judgment of
the Manager, impracticable to market the Offered Securities on the terms and in
the manner contemplated in the Prospectus; and
(iii) the Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in clause (i) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to
be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Xxxxx & Xxxx LLP, counsel to the Company, or of other counsel satisfactory to
the Manager and who may be an officer of the Company, dated the Closing Date,
to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(ii) each of Xxxx Xxxxxx Xxxxxxxx Inc., Greenwood Trust Company,
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Xxxxxxx International
Incorporated (the "Material Subsidiaries") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a whole;
(iii) each of the Company and its Material Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain
or file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(iv) each of the Senior Debt Indenture and the Subordinated Debt
Indenture has been duly qualified under the Trust Indenture Act and each of
the Third Supplemental Senior Indenture and the Third Supplemental
Subordinated Indenture has been duly authorized, executed and delivered by the
Company and each of the Senior Debt Indenture and the Subordinated Debt
Indenture has been assumed by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(v) the Debt Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms except as
(a) the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(vi) the Universal Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms except as
(a) the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(vii) the Unit Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(viii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the relevant
Indenture, the Debt Warrant Agreement, the Universal Warrant Agreement and the
Unit Agreement, as the case may be, and delivered to and paid for (A) by the
Underwriters in accordance with the terms of the Underwriting Agreement, in
the case of the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the case of
the Contract Securities and (B) upon exercise of the Debt Warrants pursuant to
the Debt Warrant Agreement, in the case of Debt Warrant Securities, will be
entitled to the benefits of the relevant Indenture, the Debt Warrant
Agreement, the Universal Warrant Agreement and the Unit Agreement, as the case
may be, and will be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms except as the
enforceability thereof (a) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law;
(ix) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(x) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company enforceable in accordance with their respective
terms except as the enforceability thereof (a) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (b) is subject to general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(xi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Senior Debt Indenture, the Subordinated Debt Indenture, the
Offered Securities, any Delayed Delivery Contracts, the Debt Warrant
Agreement, the Universal Warrant Agreement and the Unit Agreement, if any,
will not contravene any provisions of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its consolidated subsidiaries, taken as a whole, or, to the best of
such counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval or authorization or order
of or qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Underwriting
Agreement, the Senior Debt Indenture, the Subordinated Debt Indenture, the
Offered Securities, any Delayed Delivery Contract, the Debt Warrant Agreement,
the Universal Warrant Agreement and the Unit Agreement, if any, except such as
may be required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Offered Securities; provided,
however, that such counsel need not express an opinion as to whether the
purchase of the Offered Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended;
(xii) the statements (1) in the Prospectus under the captions
"Description of Debt Securities", "Description of Warrants", "Description of
Purchase Contracts", "Description of Units" and "Plan of Distribution", (2) in
the Registration Statement under Item 15, (3) in "Item 3 - Legal Proceedings"
of the most recent annual reports on Form 10-K incorporated by reference in
the Prospectus and (4) in "Item 1 - Legal Proceedings" of Part II of the
quarterly reports on Form 10-Q, if any, filed since such annual reports and
incorporated by reference in the Prospectus, in each case insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the matters
referred to therein;
(xiii) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company or any
of its consolidated subsidiaries is a party or to which any of the properties
of the Company or any of its consolidated subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and
are not so described or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or
the Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated by
reference as required; and
(xiv) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except as to financial statements
and schedules included therein as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (2) has no reason to believe that any part of the Registration
Statement (except as to financial statements and schedules included therein,
as to which such counsel need not express any belief, and except for that part
of the Registration Statement that constitutes Forms T-1), on the date such
part became effective contained, and the Registration Statement (except as to
financial statements and schedules included therein, as to which such counsel
need not express any belief, and except for the part of the Registration
Statement that constitutes Forms T-1) as of the date such opinion is delivered
contains any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (3) is of the opinion that the Registration Statement
and Prospectus (except as to financial statements and schedules included
therein, as to which such counsel need not express any opinion) comply as to
form in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (4) has no reason to believe
that the Prospectus (except as to financial statements and schedules included
therein as to which such counsel need not express any belief) as of the date
such opinion is delivered contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) The Manager shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (iv), (v), (vi),
(vii), (viii), (ix), (x), (xii) (but only as to statements in the Prospectus
under "Description of Debt Securities", "Description of Warrants",
"Description of Purchase Contracts", "Description of Units" and "Plan of
Distribution"), and (xiv) (2), (3) and (4) of paragraph (b) above.
With respect to subparagraph (xiv) of paragraph (b) above, if such
opinion is given by counsel who is also an officer of the Company, such
counsel may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision,
in the preparation of the Registration Statement and Prospectus and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified. With respect to subparagraph (xiv) of paragraph (c) above, Xxxxx
Xxxx & Xxxxxxxx and, if Xxxxx & Wood LLP is giving such opinion, Xxxxx & Xxxx
LLP may state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated therein
by reference), but are without independent check or verification, except as
specified.
(d) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Manager,
from the Company's independent auditors, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a conformed copy of the
Registration Statement (including exhibits and all amendments thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto
or to the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Manager a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading, or if in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with law, forthwith
to prepare and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus, satisfactory in all respects to the Manager, so
that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances existing when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as so amended or
supplemented, will comply with law and to cause such amendments or supplements
to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as the Manager
shall reasonably request and to maintain such qualifications for as long as
the Manager shall reasonably request.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a twelve
month period beginning on the first day of the first full fiscal quarter after
the date of the Underwriting Agreement, which earning statement shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder. If such fiscal quarter is the last
fiscal quarter of the Company's fiscal year, such earning statement shall be
made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company, warrants, purchase contracts or units substantially similar to the
Offered Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the prior written
consent of the Manager.
(g) Whether or not any sale of Offered Securities is consummated, to
pay all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Offered Securities, (iii) the
fees and disbursements of the Company's counsel and accountants and of the
Trustees and their counsel, (iv) the qualification of the Offered Securities
under securities or blue sky laws in accordance with the provisions of Section
6(d), including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any blue sky or Legal Investment Memoranda, (v) the printing and delivery to
the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all 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 or Legal Investment Memoranda, (vii) any
fees charged by rating agencies for the rating of the Offered Securities,
(viii) any expenses incurred by the Company in connection with a "road show"
presentation to potential investors, (ix) all document production charges of
counsel to the Underwriters (but not including their fees for professional
services in connection with the preparation of this Agreement) and (x) any
filing fees in connection with any review of the offering of the Offered
Securities by the National Association of Securities Dealers, Inc.
7. Covenants of the Underwriters. (a) Each of the several
Underwriters represents and agrees with the Company that:
(i) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold,
and during the restricted period will not offer or sell, Debt Securities in
bearer form (including any Debt Security in global form that is exchangeable
for Debt Securities in bearer form) to a person who is within the United
States or its possessions or to a United States person and (ii) it has not
delivered and will not deliver within the United States or its possessions
definitive Debt Securities in bearer form that are sold during the restricted
period;
(ii) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or agents
who are directly engaged in selling Debt Securities in bearer form are aware
that such Debt Securities may not be offered or sold during the restricted
period to a person who is within the United States or its possessions or to a
United States person, except as permitted by the D Rules;
(iii) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its own
account, it will only do so in accordance with the requirements of U.S. Treas.
Reg. Section 1.163-5(c)(2)(i)(D)(6);
(iv) if it transfers to any affiliate Debt Securities in bearer
form for the purpose of offering or selling such Debt Securities during the
restricted period, it will either (a) obtain from such affiliate for the
benefit of the Company the representations and agreements contained in clauses
(i), (ii) and (iii) above or (b) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such affiliate's
behalf and obtain from such affiliate the authority to so obligate it;
(v) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii) and (iv)
above from any person other than its affiliate with whom it enters into a
written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale during the restricted period of
Debt Securities in bearer form; and
(vi) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
The restricted period is defined at U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7). The term "Debt Securities in bearer form", as used in
the preceding paragraph, includes Units containing Debt Securities in bearer
form. All other terms used in the preceding paragraph have the meaning given
to them by the U.S. Internal Revenue Code and regulations thereunder,
including the D Rules.
(b) Each of the several Underwriters represents and agrees with the
Company that:
(i) except to the extent permitted under the D Rules, (i) it
has not offered or sold Debt Warrants in bearer form to a person who is within
the United States or its possessions or to a United States person and (ii) it
will not offer or sell Debt Warrants in bearer form at any time to a person
who is within the United States or its possessions or to a United States
person;
(ii) it has in effect procedures reasonably designed to ensure
that its employees or agents who are directly engaged in selling Debt Warrants
in bearer form are aware that such Debt Warrants may not be offered or sold at
any time to a person who is within the United States or its possessions or to a
United States person, except as permitted by the D Rules;
(iii) if it is a United States person, it is acquiring the Debt
Warrants in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Warrants in bearer form for its own
account, it will only do so in accordance with the requirements of U.S. Treas.
Reg. Section 1.163-5(c)(2)(i)(D)(6);
(iv) if it transfers to any affiliate Debt Warrants in bearer
form for the purpose of offering or selling such Debt Warrants, it will either
(a) obtain from such affiliate for the benefit of the Company the
representations and agreements contained in clauses (i), (ii) and (iii) above
or (b) repeat and confirm the representations and agreements contained in
clauses (i), (ii) and (iii) above on such affiliate's behalf and obtain from
such affiliate the authority to so obligate it;
(v) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii) and (iv)
above from any person other than its affiliate with whom it enters into a
written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale of Debt Warrants in bearer form;
and
(vi) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may be
offered, sold, resold or delivered.
As used in the preceding paragraph, the term "Debt Warrants in bearer form"
includes Units containing Debt Warrants in bearer form. All other terms used
in the preceding paragraph have the meaning given to them by the U.S. Internal
Revenue Code and regulations thereunder, including the D Rules.
8. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
allegedly untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or allegedly untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter in writing through
the Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
in the case of parties indemnified pursuant to the second preceding paragraph,
and by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
To the extent the indemnification provided for in the first or second
paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company and of the
Underwriters shall be determined by reference to, among other things, whether
the untrue or allegedly untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just or equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or allegedly untrue statement or omission or alleged omission.
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. The
Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to the respective amounts of Offered Securities
purchased by each of such Underwriters and not joint. The remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or
in equity.
9. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
10. Defaulting Underwriters. If on the Closing Date any one or more
of the Underwriters shall fail or refuse to purchase Offered Securities that
it has or they have agreed to purchase on such date, and the aggregate amount
of Offered Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
amount of the Offered Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the amount
of Underwriters' Securities set forth opposite their respective names above
bears to the aggregate amount of Underwriters' Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Underwriters'
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
amount of Offered Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such amount of Offered Securities without the
written consent of such Underwriter. If on the Closing Date any Underwriter
or Underwriters shall fail or refuse to purchase Offered Securities and the
aggregate amount of Offered Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Offered Securities to
be purchased on such date, and arrangements satisfactory to the Manager and
the Company for the purchase of such Offered Securities are not made within
36 hours after such default, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Company. In any such
case either the Manager or the Company shall have the right to postpone the
Closing Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Offered Securities.
11. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth
in this Agreement will remain in full force and effect, regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8, and no
other person will have any right or obligation hereunder.
13. Counterparts. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 19__
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxx Xxxxxxx,
Xxxx Xxxxxx, Discover & Co., a Delaware corporation (the "Company"), and the
Company agrees to sell to the undersigned the Company's securities described
in Schedule A annexed hereto (the "Securities"), offered by the Company's
Prospectus dated , 19__ and Prospectus Supplement dated , 19__,
receipt of copies of which are hereby acknowledged, at a purchase price stated
in Schedule A and on the further terms and conditions set forth in this
agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in
the principal amount and numbers on the delivery dates set forth in Schedule
A. Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made in immediately available funds at
the office of , New York, N.Y., at
10:00 A.M. (New York time) on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by
any purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this agreement is acceptable to the Company, it is requested
that the Company sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set forth below.
This will become a binding agreement, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
-------------------------------
(Purchaser)
By:____________________________
Name:
Title:
Address:
_____________________________________________________________________________
Accepted:
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By:_____________________________
Name:
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed is as follows: (Please print.)
Telephone No.
(including area
Name code) Department
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SCHEDULE A
Securities:
Principal amounts or Numbers to be Purchased:
Purchase Price:
Delivery Dates:
