Exhibit 1.3
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[_____________] Convertible Preferred Securities
AmeriCredit Capital Trust I
[____]% Cumulative Convertible Trust Preferred Securities
(Liquidation Amount of $[__] per Preferred Security)
UNDERWRITING AGREEMENT
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[________], 2001
[_____________________________]
As Representative of the Several Underwriters
named in Schedule I hereto
_________________________
_________________________
Dear Sirs:
AmeriCredit Corp., a Texas corporation (the "Company") and its financing
subsidiary, AmeriCredit Capital Trust I, a Delaware business trust (the "Trust,"
and hereinafter together with the Company, the "Offerors"), propose that the
Trust issue and sell to the several underwriters listed on Schedule I hereto
(the "Underwriters"), pursuant to the terms of this Agreement, [_________] of
the Trust's [___]% Trust Preferred Securities, with a liquidation amount of
$[_____] per preferred security (the "Preferred Securities"), to be issued under
the Trust Agreement (as hereinafter defined), the terms of which are more fully
described in the Prospectus (as hereinafter defined). The aforementioned
[__________] Preferred Securities to be sold to the Underwriters are herein
called the "Firm Preferred Securities." Solely for the purpose of covering
over-allotments in the sale of the Firm Preferred Securities, the Offerors
further propose that the Trust issue and sell to the Underwriters, at their
option, up to an additional [__________] Preferred Securities (the "Option
Preferred Securities") upon exercise of the over-allotment option granted in
Section 1 hereof. The Firm Preferred Securities and any Option Preferred
Securities are herein collectively referred to as the "Designated Preferred
Securities." You are acting as representative of the Underwriters and in such
capacity are sometimes herein referred to as the "Representative."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. Sale, Purchase and Delivery of Designated Preferred Securities,
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Description of Designated Preferred Securities.
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(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $[______] per Preferred Security
(the "Purchase Price"), the respective number of Firm Preferred Securities set
forth opposite the name of such Underwriter in Schedule I hereto. Because the
proceeds from the sale of the Firm Preferred Securities will be used to purchase
from the Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to each Underwriter a commission of $[_____]
per Firm Preferred Security purchased (the "Firm Preferred Securities
1
Commission"). In accordance with Section 9 hereof, the Representative may by
notice to the Company amend Schedule I to add, eliminate or substitute names set
forth therein (other than to eliminate the name of the Representative) and to
amend the number of firm Preferred Securities to be purchased by any firm or
corporation listed thereon, provided that the total number of Firm Preferred
Securities listed on Schedule I shall equal [___________].
In addition, on the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Trust hereby grants to the Underwriters, severally and not jointly, an option to
purchase all or any portion of the [__________] Option Preferred Securities,
and upon the exercise of such option in accordance with this Section 1, the
Offerors hereby agree that the Trust shall issue and sell to the Underwriters,
severally and not jointly, all or any portion of the Option Preferred Securities
at the same Purchase Price per share paid for the Firm Preferred Securities. If
any Option Preferred Securities are to be purchased, each Underwriter, severally
and not jointly, agrees to purchase from the Trust that proportion (subject to
adjustment as you may determine to avoid fractional shares) of the number of
Option Preferred Securities to be purchased that the number of Firm Preferred
Securities set forth opposite the name of such Underwriter in Schedule I hereto
(or such number increased as set forth in Section 9 hereof) bears to
[__________] . Because the proceeds from the sale of the Option Preferred
Securities will be used to purchase from the Company its Debentures, the Company
shall pay to the Underwriters a commission of $[_____] per Option Preferred
Security for each Option Preferred Security purchased (the "Option Preferred
Securities Commission"). The option hereby granted (the "Option") shall expire
[__] days after the date upon which the Registration Statement (as hereinafter
defined) becomes effective and may be exercised only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Preferred Securities. The Option may be exercised in
whole or in part at any time (but not more than once) by you giving notice
(confirmed in writing) to the Trust setting forth the number of Option Preferred
Securities as to which the Underwriters are exercising the Option and the time,
date and place for payment and delivery of the Global Securities (as hereafter
defined) for such Option Preferred Securities. Such time and date of payment
and delivery for the Option Preferred Securities (the "Option Closing Date")
shall be determined by you, but shall not be earlier than two nor later than
five full business days after the exercise of such Option, nor in any event
prior to the Closing Date (as hereinafter defined). The Option Closing Date may
be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities Commission
and delivery of the Global Securities for the Firm Preferred Securities shall be
made at the offices of [__________, ____________], or such other place as shall
be agreed to by you and the Offerors, at 10:00 a.m., Dallas, Texas time, on
[__________], 2001, or at such other time not more than [_____] full business
days thereafter as the Offerors and you shall determine (the "Closing Date").
The Trust shall deliver or cause to be delivered to you for the account of the
Underwriters against payment to or upon the order of the Trust of the Purchase
Price in federal or other immediately available funds, the Firm Preferred
Securities in the form of one or more permanent global securities in definitive
form (the "Global Securities") deposited with the Property Trustee (as
identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission and delivery of the Global Securities for such Option Preferred
Securities shall be made on the Option Closing Date at the Underwriters'
offices, or at such other place as the Offerors and you shall determine. Upon
delivery, the Option Preferred Securities shall be in the form of one or more
Global Securities registered in the name of Cede & Co., as nominee of DTC. Such
payments shall be made to an account designated by the Trust by wire transfer of
same day funds, in the amount of the Purchase Price therefor, against delivery
by or on behalf of the Trust to you for the respective accounts of the several
Underwriters of one or more Global Certificates for the Designated Preferred
Securities to be purchased by the Underwriters.
2
Exhibit 1.3
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The Agreement contained herein with respect to the timing of the Closing
Date and Option Closing Date is intended to, and does, constitute an express
agreement, as described in Rule 15c6-1(c) and (d) promulgated under the 1934 Act
(as defined herein), for a settlement date other than three business days after
the date of the contract.
Time shall be of the essence, and delivery of the Global Securities for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated Preferred
Securities pursuant to an Amended and Restated Trust Agreement among
[__________] , as Delaware Trustee and Property Trustee, the Administrative
Trustees named therein (collectively, the "Trustees"), and the Company, in
substantially the form heretofore delivered to the Underwriters, said Agreement
being hereinafter referred to as the "Trust Agreement." In connection with the
issuance of the Designated Preferred Securities, the Company proposes (i) to
issue its [_____]% Convertible Junior Subordinated Debentures due 20[__] (the
"Debentures") pursuant to an Indenture, to be dated as of [__________], 2001,
between the Company and [__________] , as trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities pursuant to a
Convertible Preferred Securities Guarantee Agreement between the Company and
[__________] , as guarantee trustee (the "Guarantee"), to the extent described
therein.
2. Representations and Warranties.
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The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The Offerors have prepared and filed with the Commission a
registration statement on Form S-3 (File Number 333-[__________] ) (the
"Registration Statement") for the registration of the Designated Preferred
Securities, the shares (the "Shares") of common stock, par value $0.01 per
share, of the Company (the "Common Stock") issuable by the Company upon
conversion of the Capital Securities, the Guarantee and up to $[__________]
aggregate principal amount of Debentures under the Securities Act of 1933,
as amended (the "1933 Act"), including the related prospectus (the
"Prospectus") subject to completion, and one or more amendments to such
registration statement may have been so filed, in each case in conformity
in all material respects with the requirements of the 1933 Act, the rules
and regulations promulgated thereunder (the "1933 Act Regulations") and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules and regulations thereunder. The Registration Statement and the
Prospectus comply and on the Closing Date and any Option Closing Date the
Prospectus will comply, in all material respects, with the provisions of
the Securities and Exchange Act of 1934, as amended (the "1934 Act") and
the rules and regulations of the Securities and Exchange Commission (the
"Commission") thereunder (the "1934 Act Regulations"); on the Effective
Date, the Registration Statement did not contain any untrue statement of a
material fact and did not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date the Prospectus did not and, on the
Closing Date and any Option Closing Date, will not contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that none of
the representations and warranties in this subparagraph (iii) shall apply
to statements in, or omissions from, the Registration Statement or the
Prospectus made in reliance upon and in conformity with information herein
or otherwise furnished in writing to the Company by or on behalf of the
Underwriters for use in the Registration Statement or the Prospectus.
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(ii) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) has been issued by the Commission, nor has the Commission, to the
knowledge of the Offerors, threatened to issue such an order or instituted
proceedings for that purpose. Each Preliminary Prospectus, at the time of filing
thereof, (A) complied in all material respects with the requirements of the
Securities Act of 1933 Act, as amended (the "1933 Act") and the rules and
regulations promulgated thereunder (the "1933 Act Regulations") and (B) did not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty does not apply to
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statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Offerors by any of the Underwriters expressly for
inclusion in the Prospectus beneath the heading "Underwriting" (such information
referred to herein as the "Underwriters' Information"). Each Preliminary
Prospectus and the Prospectus will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval ("XXXXX") system, except to the extent
permitted by Regulation S-T.
(iii) The Registration Statement has been declared effective
under the 1933 Act, and no post-effective amendment to the Registration
Statement has been filed with the Commission as of the date of this Agreement.
No stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or, to the
Company's knowledge, threatened by the Commission. At the Effective Date and at
all times subsequent thereto, up to and including the Closing Date and, if
applicable, the Option Closing Date, the Registration Statement and any post-
effective amendment thereto (A) complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (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, not misleading; provided, however, that this representation and
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warranty does not apply to Underwriters' Information. At the Effective Date and
at all times when the Prospectus is required to be delivered in connection with
offers and sales of Designated Preferred Securities, including, without
limitation, the Closing Date and, if applicable, the Option Closing Date, the
Prospectus, as amended or supplemented, (A) complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the Trust Indenture Act (and the rules and regulations
thereunder) and (B) did not contain and will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that this
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representation and warranty does not apply to Underwriters' Information. Since
the date that the Registration Statement was filed with the Commission, no event
has or will have occurred which should have been set forth in an amendment or
supplement to the Registration Statement which has not then been set forth in
such an amendment or supplement. The Registration Statement will be identical to
the electronically transmitted copy thereof filed with the Commission pursuant
to its XXXXX system, except to the extent permitted by Regulation S-T.
(iv)
(A) The Company is duly organized, validly existing
and in good standing under the laws of the State of Texas, with the requisite
corporate and other power and authority to own, lease and operate its properties
and conduct its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and as currently being conducted.
(B) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority (trust and other) to own its
property and conduct its business as described in the Registration
4
Exhibit 1.3
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Statement and Prospectus, to issue and sell its common securities (the "Common
Securities") to the Company pursuant to the Trust Agreement, to issue and sell
the Designated Preferred Securities, to enter into and perform its obligations
under this Agreement and to consummate the transactions herein contemplated; the
Trust has no subsidiaries and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or the
ownership of its 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 Trust; the Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement and
described in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust Agreement among the
Administrative Trustees, the Company and [__________] dated [__________], 2001
(the "Trust Agreement") and the agreements and instruments contemplated by the
Trust Agreement and described in the Prospectus; the Trust has no liabilities or
obligations other than those arising out of the transactions contemplated by
this Agreement and the Trust Agreement and described in the Prospectus; the
Trust is not a party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date or any Option Closing Date
will not be classified as an association taxable as a corporation for United
States federal income tax purposes; and the Trust is, and as of the Closing Date
or any Option Closing Date will be, treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
(v) The Company has the direct and indirect subsidiaries
identified on Exhibit A attached hereto and incorporated herein (the
"Subsidiaries"). The Company does not own or control, directly or indirectly,
more than 5% of any class of equity security of any corporation, association or
other entity other than the Subsidiaries. Each Subsidiary is a corporation,
limited liability company or business trust duly organized or incorporated, as
the case may be, validly existing and in good standing under the laws of its
respective jurisdiction of organization. Each such Subsidiary has the requisite
power and authority to own, lease and operate its properties and to conduct its
business as described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted.
(vi) The Company and each of the Subsidiaries is duly qualified
to transact business as a foreign corporation, limited liability company or
business trust, as the case may be, and is in good standing in each other
jurisdiction in which it owns or leases property or conducts its business so as
to require such qualification except where the failure to so qualify would,
individually or in the aggregate, not have a material adverse effect on the
condition (financial or otherwise), earnings, business, shareholders equity or
results of operations of the Company and the Subsidiaries on a consolidated
basis. All of the issued and outstanding shares of capital stock or membership
interests of the Subsidiaries (A) have been duly authorized and are validly
issued, (B) are fully paid and nonassessable except to the extent such shares or
interests may be deemed assessable under 12 U.S.C. Section 55 or 12 U.S.C.
Section 1831o, and (C) are wholly owned, directly or indirectly, by the Company
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
restriction upon voting or transfer, preemptive rights, claim or equity. Except
as disclosed in the Registration Statement and the Prospectus, there are no
outstanding rights, warrants or options to acquire or instruments convertible
into or exchangeable for any capital stock, equity securities or other ownership
interests of the Offerors or the Subsidiaries.
(vii) The capital stock of the Company, including the Shares,
and the equity securities of the Trust conform in all material respects to the
description thereof contained in the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus). The outstanding shares of capital stock
and equity securities of each Offeror have been duly authorized and validly
5
issued and are fully paid and nonassessable and no such shares were issued in
violation of the preemptive or similar rights of any security holder of an
Offeror. No person has any preemptive or similar right to purchase from the
Offerors any shares of capital stock of the Company or equity securities of the
Trust. Except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus), there are no outstanding rights, options
or warrants to acquire any securities of the Offerors or the Subsidiaries, and
there are no outstanding securities convertible into or exchangeable for any
such securities of the Offerors or the Subsidiaries and no restrictions upon the
voting or transfer of any capital stock of the Company or equity securities of
the Trust pursuant to the Company's articles of incorporation or bylaws, the
Trust Agreement or any agreement or other instrument to which an Offeror is a
party or by which an Offeror is bound. The Shares initially issuable upon
conversion of the Preferred Securities have been duly authorized and validly
reserved for issuance upon conversion of the Preferred Securities and are free
of statutory and contractual preemptive rights and are sufficient in number to
meet current conversion requirements, and such Shares, when so issued upon
conversion in accordance with the terms of the Indenture and Trust Agreement,
will be duly and validly issued and fully paid and nonassessable, with no
personal liability attaching to the ownership thereof.
(viii)
(A) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in accordance with
and upon the terms and conditions set forth in this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the Preliminary Prospectus). All corporate and trust action
required to be taken by the Offerors for the authorization, issuance, sale and
delivery of the Designated Preferred Securities in accordance with such terms
and conditions has been validly and sufficiently taken. The Designated Preferred
Securities, when delivered and paid for in accordance with this Agreement, will
be duly and validly issued and outstanding, will represent valid fully paid and
nonassessable undivided beneficial interests in the assets of the Trust, will be
entitled to the benefits of the Trust Agreement, will not be issued in violation
of or subject to any preemptive or similar rights, and will conform to the
description thereof in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus) and the Trust
Agreement. None of the Designated Preferred Securities, immediately prior to
delivery, will be subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive rights, claim,
equity or other defect.
(B) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and issued as
provided in the Indenture and delivered to the Trust pursuant to the Trust
Agreement, will constitute valid and legally binding obligations of the Company
enforceable against the Company, in accordance with their terms, except to the
extent that enforcement thereof may be limited by and/or subject to bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity, will be in the form
contemplated by, and entitled to the benefits of, the Indenture, will conform in
all material respects to the description thereof contained in the Prospectus and
will be owned by the Trust free and clear of any security interest, mortgage,
pledge, lien, encumbrance, restriction upon transfer, preemptive rights, claim
or equity.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the guarantee
trustee for the benefit of the Trust, will constitute a valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be limited by
and/or subject to bankruptcy, insolvency, reorganization, or similar laws
affecting the rights of creditors generally and subject to general principles of
equity, and will conform in all material respects to the description thereof
contained in the Prospectus.
6
Exhibit 1.3
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(D) The Agreement as to Expenses and Liabilities
between the Company and the Trust (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed and delivered by the
Company, will constitute a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by and/or subject to bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity, and will conform in all
material respects to the description thereof contained in the Prospectus.
(ix) The Offerors and the Subsidiaries have complied in
all material respects with all material federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to the
ownership and operation of their properties or the conduct of their businesses
as described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) and as currently being conducted.
(x) The Offerors and the Subsidiaries have all
material permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate federal, state,
local or other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described in and
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus) and as currently
being conducted.
(xi) Neither of the Offerors nor any of the
Subsidiaries are in breach or violation of their corporate charter, by-laws or
other governing documents (including without limitation, the Trust Agreement) in
any material respect. Neither of the Offerors nor any of the Subsidiaries is,
and to the knowledge of the Offerors no other party is, in violation, breach or
default (with or without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation, representation,
warranty or condition contained in (A) any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease, franchise, license, Permit or
any other agreement or instrument to which it is a party or by which it or any
of its properties may be bound, which such breach, violation or default could
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business or results of operations of the Company and the
Subsidiaries on a consolidated basis, and to the knowledge of the Offerors, no
other party has asserted that the Offerors or any of the Subsidiaries is in such
violation, breach or default, or (B) except as disclosed in the Prospectus (or,
if the Prospectus is not in existence, the Preliminary Prospectus), any order,
decree, judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having jurisdiction
over the Offerors or the Subsidiaries or any of their respective properties the
breach, violation or default of which could have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business or results
of operations of the Company and the Subsidiaries on a consolidated basis.
(xii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Guarantee, the Indenture, the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) do not and will not conflict with, result in
the creation or imposition of any material lien, claim, charge, encumbrance or
restriction upon any property or assets of the Offerors or the Subsidiaries or
the Designated Preferred Securities pursuant to, constitute a breach or
violation of, or constitute a default under, with or without notice or lapse of
time or both, any of the terms, provisions or conditions of the charter or by-
laws of the Company or the Subsidiaries, any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease, franchise, license, Permit or
any other agreement or instrument to which the Offerors or the
7
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, rule or regulation of
any court, arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Offerors or the Subsidiaries
or any of their respective properties which conflict, creation, imposition,
breach, violation or default would have either singly or in the aggregate a
material adverse effect on the condition (financial or otherwise), earnings,
affairs, business or results of operations of the Offerors and the Subsidiaries
on a consolidated basis. No authorization, approval, consent or order of or
filing, registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in connection
with the transactions contemplated by this Agreement, the Trust Agreement, the
Indenture, the Guarantee, the Expense Agreement, the Registration Statement and
the Prospectus (or such Preliminary Prospectus), except such as have been
obtained under the 1933 Act and the Trust Indenture Act and from The New York
Stock Exchange relating to the listing of the Designated Preferred Securities,
and such as may be required under state securities laws or Interpretations or
Rules of the National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the Designated Preferred
Securities by the Underwriters.
(xiii) The Offerors have all requisite power and
authority to enter into this Agreement and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors and constitutes the
legal, valid and binding agreement of the Offerors, enforceable against the
Offerors in accordance with its terms, except as the enforcement thereof may be
limited by and/or subject to bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and subject to general
principles of equity and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws. Each of the
Indenture, the Trust Agreement, the Guarantee and the Expense Agreement has been
duly authorized by the Company, and, when executed and delivered by the Company
on the Closing Date, each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
and/or subject to bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general principles of
equity and except as any indemnification or contribution provisions thereof may
be limited under applicable securities laws. Each of the Indenture, the Trust
Agreement and the Guarantee has been duly qualified under the Trust Indenture
Act and will conform in all material respects to the description thereof
contained in the Prospectus.
(xiv) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to all
personal property owned by them and material to their business, in each case
free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such as
are referred to in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) or such as do not materially affect the
value of such property in the aggregate and do not materially interfere with the
use made or proposed to be made of such property; and all of the leases under
which the Company or the Subsidiaries hold real or personal property are valid,
existing and enforceable leases and in full force and effect with such
exceptions as are not material and do not materially interfere with the use made
or proposed to be made of such real or personal property, and neither the
Company nor any of the Subsidiaries is in default in any material respect of any
of the terms or provisions of any material leases.
(xv) [__________], who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries including
the notes thereto, included by incorporation by reference or otherwise in the
Registration Statement and Prospectus, are independent public accountants with
respect to the Company and the Subsidiaries, as required by the 1933 Act and the
1933 Act Regulations.
8
Exhibit 1.3
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(xvi) The financial statements, together with the related
notes, included in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) present fairly in all material respects
the financial position, results of operations, cash flows, and changes in
stockholders' equity of the Company or its predecessors, as applicable, as
of and at the dates indicated and for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved, and comply in all material respects with the 1933 Act and the
1933 Act Regulations.
(xvii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
except as otherwise stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries has sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree which is material to the condition (financial or otherwise),
earnings, business or results of operations of the Company and the
Subsidiaries on a consolidated basis; and
(B) there has not been any material adverse change in,
or any development which is reasonably likely to have a material adverse
effect on, the condition (financial or otherwise), earnings, business or
results of operations of the Company and the Subsidiaries on a consolidated
basis, whether or not arising in the ordinary course of business.
(xviii) Except as set forth in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors, threatened,
against or affecting the Offerors or the Subsidiaries or any of their
respective properties before or by any court or any regulatory,
administrative or governmental official, commission, board, agency or other
authority or body, or any arbitrator, wherein an unfavorable decision,
ruling or finding could reasonably be expected to have a material adverse
effect on the consummation of this Agreement or the transactions
contemplated herein or the condition (financial or otherwise), earnings,
affairs, business, or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to be disclosed
in the Registration Statement or the Prospectus (or such Preliminary
Prospectus) and is not so disclosed.
(xix) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement by the 1933 Act or the 1933
Act Regulations or the Trust Indenture Act (or any rules or regulations
thereunder) which have not been filed as exhibits or incorporated by
reference to the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) that are not so summarized.
(xx) Neither of the Offerors has taken, directly or
indirectly, any action designed to result in or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Offerors to facilitate the
sale or resale of the Designated Preferred Securities in violation of the
Commissioner's rules and regulations, including, but not limited to,
Regulation M, and neither of the Offerors is aware of any such action taken
or to be taken by any affiliate of the Offerors.
9
(xxi) The Offerors and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service marks,
trade names and other rights necessary to conduct the businesses now
conducted by them in all material respects or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Company nor the Subsidiaries have
received any notice of infringement or conflict with asserted rights of
others with respect to any patents, copyrights, trademarks, service marks,
trade names or other rights which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business or results of operations of the Company and the
Subsidiaries on a consolidated basis, and the Offerors do not know of any
basis for any such infringement or conflict individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xxii) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus), no labor
dispute involving the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which might be expected to have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business or results of operations of the Company and the
Subsidiaries on a consolidated basis or which is required to be disclosed
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus). Neither the Company nor any of the
Subsidiaries have received notice of any existing or threatened labor
dispute by the employees of any of its principal suppliers, customers or
contractors which might be expected to have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business or
results of operations of the Company and the Subsidiaries on a consolidated
basis.
(xxiii) The Offerors and the Subsidiaries have timely and
properly prepared and filed all necessary federal, state, local and foreign
tax returns which are required to be filed and have paid all taxes shown as
due thereon and have paid all other taxes and assessments to the extent
that the same shall have become due, except such as are being contested in
good faith or where the failure to so timely and properly prepare and file
would not have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business or results of operations of the
Company and the Subsidiaries on a consolidated basis. The Offerors have no
knowledge of any tax deficiency which has been or might be assessed against
the Offerors or the Subsidiaries which, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business or results
of operations of the Company and the Subsidiaries on a consolidated basis.
(xxiv) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, shareholders, customers or suppliers of the Company or
the Subsidiaries, on the other hand, which is required to be described in
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) which is not
described therein.
(xxv) No person has the right to request or require the
Offerors or the Subsidiaries to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Designated
Preferred Securities except as adequately disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(xxvi) The Designated Preferred Securities have been approved
for quotation on The New York Stock Exchange subject to official notice of
issuance.
10
Exhibit 1.3
-----------
(xxvii) Except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the Preliminary Prospectus),
there are no contractual encumbrances or restrictions or material legal
restrictions required to be described therein, on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on its
capital stock or to pay any indebtedness owed to the Company, (B) to make
any loans or advances to, or investments in, the Company or (C) to transfer
any of its property or assets to the Company.
(xxviii) Neither of the Offerors is an "investment company," an
entity "controlled" by an "investment company" or an "investment adviser"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxix) The Offerors have not distributed and will not
distribute prior to the Closing Date any prospectus in connection with the
Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933 Act
and the 1933 Act Regulations and reviewed by the Representative.
(xxx) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(xxxi) Neither the Company nor any Subsidiary has any liability
under any "pension plan," as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
(xxxii) Other than as contemplated by this Agreement and as
disclosed in the Registration Statement, the Company has not incurred any
liability for any finder's or broker's fee or agent's commission in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated thereby.
(xxxiii) None of the Offerors, the Subsidiaries or, to the best
knowledge of the Offerors, any other person associated with or acting on
behalf of the Offerors or any of the Subsidiaries, including, without
limitation, any director, officer, agent, or employee of any of the
Subsidiaries or the Company has, directly or indirectly, while acting on
behalf of such Offeror or Subsidiary (i) used any corporate funds for
unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity; (ii) made any unlawful contribution to any
candidate for foreign or domestic office, or to any foreign or domestic
government officials or employees or other person charged with similar
public or quasi-public duties, other than payments required or permitted by
the laws of the United States or any jurisdiction thereof or to foreign or
domestic political parties or campaigns from corporate funds, or failed to
disclose fully any contribution in violation of law; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv)
made any other payment of funds or either or both of the Offerors or a
Subsidiary or retained any funds which constitute a violation of any law,
rule or regulation or which was or is required to be disclosed in the
Registration Statement or the Prospectus pursuant to the requirements of
the 1933 Act or the 1933 Act Regulations.
(xxxiv) The employee benefit plans, including employee welfare
benefit plans, of the Company and each of the Subsidiaries (the "Employee
Plans") have been operated in material compliance with the applicable
provisions of ERISA, the Internal Revenue Code of 1986, as amended (the
"Code"), all regulations, rulings and announcements promulgated or issued
thereunder and all other applicable governmental laws and regulations
(except to the extent such noncompliance would not, in the aggregate, have
a material adverse effect upon the condition (financial or otherwise)
earnings, affairs, business or results of operations of the Offerors or the
Subsidiaries on a consolidated
11
basis). No reportable event under Section 4043(c) of ERISA has occurred
with respect to any Employee Plan of the Company or any of the Subsidiaries
for which the reporting requirements have not been waived by the Pension
Benefit Guaranty Corporation. No prohibited transaction under Section 406
of ERISA, for which an exemption does not apply, has occurred with respect
to any Employee Plan of the Company or any of the Subsidiaries. There are
no pending or, to the knowledge of the Offerors, threatened, claims by or
on behalf of any Employee Plan, by any employee or beneficiary covered
under any such Employee Plan or by any governmental authority or otherwise
involving such Employee Plans or any of their respective fiduciaries (other
than for routine claims for benefits). All Employee Plans that are group
health plans have been operated in material compliance with the group
health plan continuation coverage requirements of Section 4980B of the
Code.
(xxxv) The Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization, and (D) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
(xxxvi) Except as described in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus), there is no factual basis for any action, suit or other
proceeding involving the Company or the Subsidiaries or any of their
material assets for any failure of the Company or any of the Subsidiaries,
or any predecessor thereof, to comply with any requirements of federal,
state or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the
environment; except where such action, suit or other proceeding would not
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business or results of operations of the Company and the
Subsidiaries on a consolidated basis. Except as described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus) or as would not have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business or results of operations of the Company and the
Subsidiaries on a consolidated basis, none of the property owned or leased
by the Company or any of the Subsidiaries is contaminated with any waste or
hazardous substances, and neither the Company nor any of the Subsidiaries
may be deemed an "owner or operator" of a "facility" or "vessel" which
owns, possesses, transports, generates or disposes of a "hazardous
substance" as those terms are defined in (S)9601 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
(S)9601 et seq.
------
3. Offering by the Underwriters.
----------------------------
After the Registration Statement becomes effective or, if the Registration
Statement is already effective, after this Agreement becomes effective, the
Underwriters propose to offer the Firm Preferred Securities for sale to the
public upon the terms and conditions set forth in the Prospectus. The
Underwriters may from time to time thereafter reduce the public offering price
and change the other selling terms, provided the proceeds to the Trust shall not
be reduced as a result of such reduction or change. Because the NASD is
expected to view the Preferred Securities as interests in a direct participation
program, the offering of the Preferred Securities is being made in compliance
with the applicable provisions of Rule 2810 of the NASD's conduct rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by it (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow,
a concession set forth in the Prospectus to certain other brokers and dealers.
12
Exhibit 1.3
-----------
4. Certain Covenants of the Offerors.
---------------------------------
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall cause the Registration Statement and any
amendments thereto, if not effective at the time of execution of this Agreement,
to become effective as promptly as possible. If the Registration Statement has
become or becomes effective pursuant to Rule 430A and information has been
omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and
file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or,
if required by Rule 430A, a post-effective amendment to the Registration
Statement (including the Prospectus) containing all information so omitted and
will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you promptly, and confirm such notice
in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when the
Prospectus or any supplement to the Prospectus or any amended Prospectus has
been filed;
(ii) of the receipt of any comments or requests from the
Commission;
(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the effectiveness of
the Registration Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, or suspending the qualification of any of the
Designated Preferred Securities for offering or sale in any jurisdiction or the
institution or threat of institution of any proceedings for any of such
purposes. The Offerors shall use their best efforts to prevent the issuance of
any such stop order or of any other such order and if any such order is issued,
to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time
without charge, as soon as available, as many copies as the Underwriters may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all exhibits
and documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) the Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered
under the 1933 Act, the Offerors shall comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Designated Preferred Securities as
contemplated herein and in the Trust Agreement and the Prospectus. The Offerors
shall not file any amendment to the registration statement as originally filed
or to the Registration Statement and shall not file any amendment thereto or
make any amendment or supplement to the Preliminary Prospectus or to the
Prospectus of which you shall not previously have been advised in writing and
provided a copy a reasonable time prior to the proposed filings thereof or to
which you or counsel for the Underwriters shall reasonably object. If it is
necessary, in the Company's reasonable opinion or in the reasonable opinion of
the Company's counsel to amend or supplement the Registration Statement or the
Prospectus in connection with the distribution of the Designated Preferred
Securities and the Shares, the Offerors shall forthwith amend or supplement the
Registration Statement or the Prospectus, as the case may be, by preparing and
filing with the Commission
13
(provided the Underwriters or counsel for the Underwriters does not reasonably
object), and furnishing to you such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements to, the
Registration Statement or the Prospectus, as the case may be (in form and
substance reasonably satisfactory to you and counsel for the Underwriters). If
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus to correct an untrue statement of a material fact or
to include a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if for any
reason it is necessary at any time to amend or supplement the Prospectus to
comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith at their cost
and expense amend or supplement the Prospectus by preparing and filing with the
Commission, and furnishing to you, such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements to, the
Prospectus (in form and substance satisfactory to you and counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities and the
Shares for offering and sale under the securities or blue sky laws of such
jurisdictions as you may reasonably request and shall continue such
qualifications in effect so long as may be advisable for distribution of the
Designated Preferred Securities and the Shares; provided, however, that the
-------- -------
Offerors shall not be required to qualify to do business as a foreign
corporation or file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Offerors shall file such statements and
reports as may be required by the laws of each jurisdiction in which the
Designated Preferred Securities and the Shares have been qualified as above. The
Offerors will notify you promptly of, and confirm in writing, the suspension of
qualification of the Designated Preferred Securities and the Shares or threat
thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred
Securities to be eligible for clearance and settlement through the facilities of
DTC.
(g) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) For one year from the Effective Date, the Offerors shall furnish
to the Representative copies of all reports and communications (financial or
otherwise) furnished by the Offerors to the holders of the Designated Preferred
Securities and the Shares as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or with any
national securities exchange or The New York Stock Exchange or other self-
regulatory organization and such other documents, reports and information
concerning the business and financial conditions of the Offerors as the
Representative may reasonably request, other than such documents, reports and
information for which the Offerors has the legal obligation not to reveal to the
Representative.
(j) (i) For a period of 60 days from the Effective Date, the Offerors
shall not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Designated Preferred Securities, any other beneficial
interests in the assets of the Trust or any securities of the Trust or the
Company that are substantially similar to the Designated Preferred Securities,
including any guarantee of such beneficial interests or substantially similar
securities, or securities convertible into or exchangeable for or that represent
the right
14
Exhibit 1.3
-----------
to receive any such beneficial interest or substantially similar securities, and
(ii) for a period of 60 days from the Effective Date, the Offerors shall not,
directly or indirectly, offer for sale, sell or agree to sell or otherwise
dispose of any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than pursuant to employee benefit plans of
the Company) or warrants or other rights to purchase Common Stock or permit the
registration under the 1933 Act of any shares of Common Stock, except for the
registration of the Designated Preferred Securities and the Shares and the sales
to the Underwriters pursuant to this Agreement and except for issuances of
Common Stock upon the exercise of outstanding options, warrants and debentures,
without the prior written consent of the Representative.
(k) The Offerors shall use their best efforts to cause the Designated
Preferred Securities and the Shares to become quoted on The New York Stock
Exchange, or in lieu thereof a national securities exchange, and to remain so
quoted for at least five years from the Effective Date or for such shorter
period as may be specified in a written consent of the Representative, provided
this shall not prevent the Company from redeeming the Designated Preferred
Securities pursuant to the terms of the Trust Agreement. If the Designated
Preferred Securities are exchanged for Debentures, the Company shall use its
best efforts to have the Debentures promptly listed on The New York Stock
Exchange or other organization on which the Designated Preferred Securities are
then listed, and to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, or take or refrain from taking any
action which will cause or result in any material adverse change in the
financial position, capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the Offerors and
the Subsidiaries on a consolidated basis.
(m) The Offerors shall not, for a period of 30 days after the date
hereof, without the prior written consent of the Representative, purchase,
redeem or call for redemption, or prepay or give notice of prepayment (or
announce any redemption or call for redemption, or any repayment or notice of
prepayment) of the Offerors' securities.
(n) The Offerors shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to (i) cause or result in stabilization or manipulation of the price of any
security of the Offerors to facilitate the sale or resale of the Designated
Preferred Securities or the Shares or (ii) otherwise violate the Commission's
Regulation M and the Offerors are not aware of any such action taken or to be
taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the offering
of the Designated Preferred Securities or the Shares (the "Offering") which you
shall not previously have been provided a copy a reasonable time prior to the
release thereof or provided reasonable notice thereof and you shall not have
reasonably objected thereto.
(p) The Offerors shall comply with all registration, filing and
reporting requirements of the 1934 Act for so long as the Preferred Securities
or the Debentures shall remain outstanding.
15
(q) At any time that the number of authorized but unissued shares of
Common Stock (or shares of Common Stock held in treasury and available for such
purpose) shall be less than the aggregate number of shares of Common Stock into
which the Preferred Securities then outstanding shall be convertible, to take
such action as is necessary to increase the number of shares of Common Stock
which the Company is authorized to issue so that the Company will have a
sufficient number of shares of Common Stock available for conversion of the
Capital Securities then outstanding.
5. Payment of Expenses.
-------------------
Whether or not this Agreement is terminated or the sale of the Designated
Preferred Securities to the Underwriters is consummated, the Company covenants
and agrees that it will pay or cause to be paid (directly or by reimbursement)
all costs and expenses incident to the performance of the obligations of the
Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements);
(b) all fees, expenses and disbursements of the Offerors' counsel and
accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee under the securities or blue sky laws of such jurisdictions as you may
request, including all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith.
(d) all fees and expenses incurred in connection with filings made
with the NASD and DTC;
(e) any applicable fees and other expenses incurred in connection
with the listing of the Designated Preferred Securities and, if applicable, the
Guarantee and the Debentures on The New York Stock Exchange;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture, the Guarantee and the Expense Agreement;
and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
reasonable out-of-pocket expenses in connection herewith or in contemplation of
the performance of your
16
Exhibit 1.3
-----------
obligations hereunder, including without limitation travel expenses, reasonable
fees, expenses and disbursements of counsel or other out-of-pocket expenses
incurred by you in connection with any discussion of the Offering or the
contents of the Registration Statement, any investigation of the Offerors and
the Subsidiaries, or any preparation for the marketing, purchase, sale or
delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. Conditions of the Underwriters' Obligations.
-------------------------------------------
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option granted by the
Offerors in Section 1 of this Agreement, the Option Preferred Securities, are
subject, in your sole discretion, to the accuracy of and compliance with the
representations and warranties and agreements of the Offerors herein as of the
date hereof and as of the Closing Date (or in the case of the Option Preferred
Securities, if any, as of the Option Closing Date), to the accuracy of the
written statements of the Offerors made pursuant to the provisions hereof, to
the performance by the Offerors of their covenants and obligations hereunder and
to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed prior
to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., Dallas, Texas time, on the first business day following the
time of execution of this Agreement, or at such later time and date as you may
agree to in writing. If required, the Prospectus and any amendment or supplement
thereto shall have been timely filed in accordance with Rule 424(b) and Rule
430A under the 1933 Act and Section 4(a) hereof. No stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto shall have been issued under the 1933 Act or any applicable state
securities laws and no proceedings for that purpose shall have been instituted
or shall be pending, or, to the knowledge of the Offerors or the Representative,
shall be contemplated by the Commission or any state authority. Any request on
the part of the Commission or any state authority for additional information (to
be included in the Registration Statement or Prospectus or otherwise) shall have
been disclosed to you and complied with to your satisfaction and to the
satisfaction of counsel for the Underwriters.
(b) No Underwriter shall have advised the Company at or before the
Closing Date (and, if applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the Prospectus or any
amendment or supplement thereto, contains an untrue statement of a fact which,
in your opinion, is material or omits to state a fact which, in your opinion, is
material and is required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust Agreement, and the
Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements and other
financial data, and all other legal matters relating to this Agreement and the
transactions contemplated hereby or by the Trust Agreement shall be satisfactory
in all material respects to counsel for the Underwriters, and the Offerors and
the Subsidiaries shall have furnished to such counsel all documents and
information relating thereto that they may reasonably request to enable them to
pass upon such matters.
17
(d) Jenkens & Xxxxxxxxx, counsel for the Offerors, shall have
furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Texas. Each of
the Subsidiaries is duly incorporated or organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization. Each of the Company and the Subsidiaries has the requisite
power (corporate or otherwise) and authority to own or lease its properties
and to conduct its business as such business is described in the Prospectus
and is currently conducted in all material respects. All outstanding shares
of capital stock or membership interests of the Subsidiaries have been duly
authorized and validly issued and are fully paid and nonassessable except
to the extent such shares or membership interests may be deemed assessable
under 12 U.S.C. Section 1831.
(ii) The capital stock of the Company, the Debentures and
Guarantee of the Company and the equity securities of the Trust conform to
the description thereof contained in the Prospectus in all material
respects. To the best of such counsel's knowledge, the capital stock of the
Company authorized as of [_________], 2001 is as set forth under the
caption "Capitalization" in the Prospectus, has been duly authorized and
validly issued, and is fully paid and nonassesable. The form of
certificates to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and complies with all
applicable requirements. To the best of such counsel's knowledge, there are
no outstanding rights, options or warrants to purchase, no other
outstanding securities convertible into or exchangeable for, and no
commitments, plans or arrangements to issue, any shares of capital stock of
the Company or equity securities of the Trust, except as described in the
Prospectus.
(iii) The issuance, sale and delivery of the Designated
Preferred Securities, the Shares and Debentures in accordance with the
terms and conditions of this Agreement and the Indenture have been duly
authorized by all necessary actions of the Offerors. All of the Designated
Preferred Securities have been duly and validly authorized and, when
delivered and paid for in accordance with this Agreement will be duly and
validly issued, fully paid and nonassessable, and will conform in all
material respects to the description thereof in the Registration Statement,
the Prospectus and the Trust Agreement. The Designated Preferred Securities
have been approved for quotation on The New York Stock Exchange subject to
official notice of issuance. To such counsel's knowledge, here are no
preemptive or other rights to subscribe for or to purchase, and other than
as disclosed in the Prospectus no restrictions upon the voting or transfer
of, any equity securities of the Offerors or the Subsidiaries pursuant to
the corporate charter, by-laws or other governing documents (including
without limitation, the Trust Agreement) of the Offerors or the
Subsidiaries, or, to the best of such counsel's knowledge, any agreement or
other instrument to which either Offeror or any of the Subsidiaries is a
party or by which either Offeror or any of the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and trust power
to enter into and perform their obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered by
the Offerors.
(v) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has been
duly authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable against the Company
in accordance with its terms.
(vi) The Debentures have been duly authorized, executed, and
delivered by the Company, and, when authenticated by the Indenture Trustee,
will be legal, valid and binding
18
Exhibit 1.3
-----------
obligations of the Company enforceable against the Company in accordance
with their terms. The holders of the Debentures are entitled to the
benefits of the Indenture.
(vii) The Expense Agreement has been duly authorized, executed
and delivered by the Company, and is a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its
terms.
(viii) The Shares initially issuable upon conversion of the
Preferred Securities and the Debentures have been duly authorized and
validly reserved for issuance upon conversion of the Preferred Securities
and the Debentures and, to the best of such counsel's knowledge, are free
of contractual preemptive rights and are sufficient in number to meet
current conversion requirements, and such Shares, when so issued upon such
conversion in accordance with the terms of the Trust Agreement and the
Indenture, will be duly and validly issued and fully paid and
nonassessable.
(ix) To the best of such counsel's knowledge, neither of the
Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document (including without
limitation, the Trust Agreement). The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated by
this Agreement, and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Offerors or
the Subsidiaries or the Designated Preferred Securities pursuant to, or
constitute a material breach or violation of, or constitute a material
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or governing
document (including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries to which either Offeror or the Subsidiaries is
a party or by which any of them or any of their respective properties may
be bound or any order, decree, judgment, franchise, license, Permit, rule
or regulation of any court, arbitrator, government, or governmental agency
or instrumentality, domestic or foreign, certified to such counsel (as
provided in this Agreement) having jurisdiction over the Offerors or the
Subsidiaries or any of their respective properties which, in each case, is
material to the Offerors and the Subsidiaries on a consolidated basis. No
authorization, approval, consent or order of, or filing, registration or
qualification with, any person (including, without limitation, any court,
governmental body or authority) is required under Texas law in connection
with the transactions contemplated by this Agreement with respect to the
purchase and distribution of the Designated Preferred Securities by the
Underwriters.
(x) To the best of such counsel's knowledge, holders of
securities of the Offerors do not have any right that, if exercised, would
require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Company nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors.
(xi) Except as set forth in the Registration Statement and the
Prospectus to the best of such counsel's knowledge, no action, suit or
proceeding at law or in equity is pending or threatened in writing to which
the Offerors or the Subsidiaries is or is threatened to be made a party,
which is required to be disclosed in the Registration Statement or the
Prospectus and is not so disclosed.
(xii) No approval, authorization, consent, registration,
qualification or other order of any public board or body is required in
connection with the execution and delivery of this Agreement, the Trust
Agreement, the Guarantee, the Expense Agreement and the Indenture or the
19
issuance and sale of the Preferred Securities or the consummation by the
Offerors of the other transactions contemplated by this Agreement, the
Trust Agreement, the Guarantee, the Expense Agreement or the Indenture,
except such as have been obtained under the 1933 Act, the 1934 Act and the
Trust Indenture Act or such as may be required under {state} the blue sky
or securities laws of various states in connection with the offering and
{distribution} sale of the Preferred Securities.
(xiii) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the exhibits, financial
statements or other financial data included therein or omitted therefrom
and Underwriters' Information, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations as of their respective dates
of effectiveness or issuance. The documents incorporated by reference in
the Registration Statement and the Prospectus and any amendments or
supplements thereto (other than the exhibits, financial statements or other
financial data included therein or omitted therefrom, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations as of
their respective dates of effectiveness.
(xiv) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be described in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed.
(xv) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made within the time period required by Rule 424(b); to the best of
such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop order
are pending or threatened by the Commission.
In giving the above opinion, such counsel may state that, insofar as such
opinion involves factual matters, they have relied upon certificates of officers
of the Offerors including, without limitation, certificates as to the identity
of any and all material contracts, indentures, mortgages, deeds of trust, loans
or credit agreements, notes, leases, franchises, licenses or other agreements or
instruments, and all material permits, easements, consents, licenses, franchises
and government regulatory authorizations, for purposes of paragraphs (viii),
(ix), (x), (xiii), (xiv) and (xv) hereof, and certificates of public officials.
In giving such opinion, such counsel may rely upon the opinion of
[____________], special Delaware counsel to the Offerors as to certain matters
relating to the Trust and the Designated Preferred Securities which are governed
by Delaware law.
In giving the above opinion, such counsel may state that, with respect to
agreements referred to in paragraphs (iv), (v), (vi) and (vii) any enforcement
with respect thereto may be limited by and/or subject to bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity.
Such counsel shall also confirm that, in connection with the preparation of
the Registration Statement and Prospectus, such counsel has participated in
conferences with officers and representatives of the Offerors and with their
independent public accountants and with you and your counsel, at which
conferences such counsel made inquiries of such officers, representatives and
accountants and discussed in detail the contents of the Registration Statement
and Prospectus and the documents incorporated therein by reference and (relying
as to materiality to a large extent upon facts provided by officers and other
representatives of the Company) such counsel has no reason to believe (A) that
the Registration Statement or any amendment thereto (except for the exhibits,
financial statements and related schedules and statistical data included therein
or omitted therefrom or Underwriters' Information, as to which such counsel need
express no opinion), at the time the Registration Statement or any such
amendment became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (B) that the Prospectus
20
Exhibit 1.3
-----------
or any amendment or supplement thereto and the documents incorporated therein by
reference (except for the financial statements, exhibits and related schedules
and statistical data included therein or omitted therefrom or Underwriters'
Information, as to which such counsel need express no opinion), at the time the
Registration Statement became effective (or, if the term "Prospectus" refers to
the prospectus first filed pursuant to Rule 424(b) of the 1933 Act Regulations,
at the time the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (C) that there is
any amendment to the Registration Statement required to be filed that has not
already been filed.
(e) [_____________], special Delaware counsel to the Offerors, shall
have furnished to you their signed opinion, dated as of Closing Date or the
Option Closing Date, as the case may be, in form and substance satisfactory to
such counsel, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
and, under the Trust Agreement and the Delaware Business Trust Act, has the
trust power and authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement is a legal, valid and binding
agreement of the Company, as sponsor, and the Trustees, and is enforceable
against the Company, as sponsor, and the Trustees, in accordance with its
terms.
(iii) Under the Trust Agreement and the Delaware Business Trust
Act, the execution and delivery of the Underwriting Agreement by the Trust,
and the performance by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the Trust.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement, and when issued and sold in accordance
with the Trust Agreement, the Designated Preferred Securities will be,
subject to the qualifications set forth in paragraph (v) below, fully paid
and nonassessable beneficial interest in the assets of the Trust and
entitled to the benefits of the Trust Agreement. The form of certificate to
evidence the Designated Preferred Securities has been approved by the Trust
and is in due and proper form and complies with all applicable requirements
of the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to shareholders of private, for-profit corporations
organized under the General Corporation Law of the State of Delaware. Such
opinion may note that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Preferred Securities is not
subject to preemptive rights.
(vii) The issuance and sale by the Trust of the Designated
Preferred Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or regulation.
21
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(f) [_____________], counsel for the Underwriters, shall have
furnished you their signed opinion, dated the Closing Date or the Option Closing
Date, as the case may be, with respect to the sufficiency of all corporate
procedures and other legal matters relating to this Agreement, the validity of
the Designated Preferred Securities, the Registration Statement, the Prospectus
and such other related matters as you may reasonably request and there shall
have been furnished to such counsel such documents and other information as they
may request to enable them to pass on such matters. In giving such opinion,
[____________] may rely as to matters of fact upon statements and certifications
of officers of the Offerors and of other appropriate persons and may rely as to
matters of law, other than law of the United States, the law of the State of
[_________], and upon the opinions of Jenkens & Xxxxxxxxx and [______________]
described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representative shall have received
from [_________] a letter, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Representative, confirming that they are
independent public accountants with respect to the Company and the Subsidiaries,
within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in
effect that:
(i) In their opinion, the consolidated financial statements of
the Company audited by them and included or incorporated by reference in
the Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act, the 1934 Act, the
1933 Act Regulations and the 1934 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated financial
statements of the Company included or incorporated by reference in the
Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act, the 1934 Act,
the 1933 Act Regulations and the 1934 Act Regulations or are not in
conformity with U.S. generally accepted accounting principles applied on a
basis substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial statements
of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements and
other information referred to below, a reading of the latest available
unaudited condensed consolidated financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements of the Company included or incorporated by
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
22
Exhibit 1.3
-----------
(A) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock of the Company, any increase in the consolidated debt of the
Company or any decrease in the consolidated shareholders equity of the
Company or any changes, decreases or increases in other items specified by
the Underwriters, in each case as compared with amounts shown in the latest
unaudited interim consolidated statement of financial condition of the
Company included or incorporated by reference in the Registration Statement
except in each case for changes, increases or decreases which the
Registration Statement specifically discloses, have occurred or may occur
or which are described in such letter; and
(B) for the period from the date of the latest unaudited interim
consolidated financial statements included or incorporated by reference in
the Registration Statement to the specified date referred to in Clause
(iii)(A), there were any decreases in the consolidated net income of the
Company or in the per share amount of net income of the Company or changes,
decreases or increases in other items as compared with the comparable
period of the preceding year and with any other period of corresponding
length specified by the Underwriters, except in each case for increases or
decreases which the Registration Statement discloses have occurred or may
occur, or which are described in such letter.
(iv) In addition to the audit referred to in their report included or
incorporated by reference in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
U.S. generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records and
consolidated financial statements of the Company which appear in the
Registration Statement specified by the Underwriters in the Registration
Statement, and have compared such amounts, percentages and financial
information with the accounting records and the material derived from such
records and consolidated financial statements of the Company have found
them to be in agreement.
In the event that the letter to be delivered on the date hereof, on the
Closing Date (and, if applicable, any Option Closing Date) referred to above set
forth any such changes, decreases or increases as specified in Clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in Clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representative shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
Clause (iii)(A) above as compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company included or
incorporated by reference in the Registration Statement, (y) reflect a material
adverse change in the items specified in Clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representative, or (z) reflect a material adverse change in items specified in
Clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriters in connection with the offering contemplated
hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2(a) hereof are accurate as of
the Closing Date and, if applicable, the Option Closing Date, and that the
Offerors have complied with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to such Closing
23
Date and, if applicable, the Option Closing Date; (ii) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the condition
(financial or otherwise), earnings, affairs, business or results of operations
of the Company and the Subsidiaries on a consolidated basis; (iii) since such
dates there has not been any material transaction entered into by the Offerors
or the Subsidiaries other than transactions in the ordinary course of business;
and (iv) they have carefully examined the Registration Statement and the
Prospectus as amended or supplemented and nothing has come to their attention
that would lead them to believe that either the Registration Statement or the
Prospectus, or any amendment or supplement thereto as of their respective
effective or issue dates, contained, and the Prospectus as amended or
supplemented at such Closing Date (and, if applicable, the Option Closing Date),
contains any untrue statement of a material fact, or omits to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (v) covering such other matters as you may reasonably request.
The officers' certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their knowledge,
threatened.
(i) At the Closing Date and, if applicable, the Option Closing
Date, you shall have received a certificate of an authorized representative of
the Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date, and since
the most recent date as of which information is given in the Prospectus, except
as contemplated by the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
(j) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(k) On the Closing Date, you shall have received signed letters,
dated the date of this Agreement, from each of the directors and officers of the
Company and stockholders of the Company designated by the Representative to the
effect that such persons shall not sell, contract to sell, grant any option to
sell or otherwise dispose of, directly or indirectly, any shares of Common Stock
or warrants or other rights to purchase Common Stock for a period of 90 days
after the date of the Prospectus without the prior written consent of the
Representative.
(l) The NASD, upon review of the terms of the public offering of
the Designated Preferred Securities and the Shares, shall not have objected to
the Underwriters' participation in such offering.
(m) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to you and counsel for the
Underwriters all such other documents, certificates and opinions as they have
reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have been
fulfilled when and as required by this Agreement, this Agreement and all of the
Underwriters' obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. Indemnification and Contribution.
--------------------------------
24
Exhibit 1.3
-----------
(a) The Offerors agree to jointly and severally indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable attorney fees and expenses),
joint or several, arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact made by the Company or the Trust
contained in the registration statement as originally filed or the Registration
Statement, any Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto or (ii) any omission or alleged omission to state a material
fact in the registration statement as originally filed or the Registration
Statement, the Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation and attorney fees),
joint or several, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
shall reimburse each such indemnified party for any reasonable legal or other
expenses as incurred, but in no event less frequently than 30 days after each
invoice is submitted, incurred by them in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Offerors shall not be liable in any such case to the extent, but only to the
extent, that any such losses, claims, damages, liabilities and expenses arise
out of or are based upon any untrue statement or omission or allegation thereof
that has been made therein or omitted therefrom in reliance upon and in
conformity with the "Underwriter Information" provided, that the indemnification
contained in this paragraph with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or of any person controlling any
Underwriter) to the extent any such losses, claims, damages, liabilities or
expenses directly results from the fact that such Underwriter sold Designated
Preferred Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus (as
amended or supplemented if any amendments or supplements thereto shall have been
furnished to you in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law, and if such
loss, claim, damage, liability or expense would not have arisen but for the
failure to give or send such person such document. The foregoing indemnity
agreement is in addition to any liability the Company or the Trust may otherwise
have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless each Offeror, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
25
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially 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 at any time and for all
such indemnified party and controlling persons, which firm shall be designated
in writing by the indemnified party (and, if such indemnified parties are
Underwriters, by you, as Representative). Each indemnified party and each
controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any settlement
of any such action effected without its written consent, but if there shall be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of each
indemnified party, settle, compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnity may be sought hereunder (whether or not such indemnified party or any
person who controls such indemnified party within the meaning of the 1933 Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes a release of each such indemnified party
reasonably satisfactory to each such indemnified party and each such controlling
person from all liability arising out of such claim, action, suit or proceeding
or unless the indemnifying party shall confirm in a written agreement with each
indemnified party, that notwithstanding any federal, state or common law, such
settlement, compromise or consent shall not alter the right of any indemnified
party or controlling person to indemnification or contribution as provided in
this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
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 Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution
26
Exhibit 1.3
-----------
pursuant to this paragraph (d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities and expenses
referred to in the first sentence of this paragraph (d) 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
paragraph (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Designated Preferred
Securities underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriters
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.
For purposes of this paragraph (d), each person who controls an Underwriter
within the meaning of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each person who controls an Offeror within the meaning of
the 1933 Act, each officer and trustee of an Offeror who shall have signed the
Registration Statement and each director of an Offeror shall have the same
rights to contribution as the Offerors subject in each case to the preceding
sentence. The obligations of the Offerors under this paragraph (d) shall be in
addition to any liability which the Offerors may otherwise have and the
obligations of the Underwriters under this paragraph (d) shall be in addition to
any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Offerors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror, (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. Termination.
-----------
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which in the judgment of the
Representative materially impairs the investment quality of the Designated
Preferred Securities;
27
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any materially adverse
change in, or any development which is reasonably likely to have a material
adverse effect on, the condition (financial or otherwise), earnings, affairs,
business or results of operations of the Offerors and the Subsidiaries on a
consolidated basis, whether or not arising in the ordinary course of business;
or
(d) Trading generally on the New York Stock Exchange, the American
Stock Exchange or The Nasdaq Stock Market's National Market shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. Default of Underwriters.
-----------------------
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not obligated under
the above paragraph to purchase the Designated Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representative may in its discretion arrange for one or more of the Underwriters
or for another party or parties to purchase such Designated Preferred Securities
on the terms contained herein. If within one business day after such default the
Representative does not arrange for the purchase of such Designated Preferred
Securities, then the Company shall be entitled to a further period of one
business day within which to procure another party or parties satisfactory to
the Representative to purchase such Designated Preferred Securities on such
terms.
In the event that the Representative or the Company do not arrange for the
purchase of any Designated Preferred Securities to which a default relates as
provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
28
Exhibit 1.3
-----------
10. Effective Date of Agreement.
---------------------------
If the Registration Statement is not effective at the time of execution of
this Agreement, this Agreement shall become effective on the Effective Date at
the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of this
Agreement, this Agreement shall become effective at the earlier of 11:00 a.m.
Dallas, Texas time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representative shall
release the Designated Preferred Securities for initial public offering. The
Representative shall notify the Offerors immediately after it has taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may be
terminated by the Offerors, by notifying you or by you, as Representative of the
several Underwriters, by notifying either Offeror, except that the provisions of
Sections 5 and 7 shall at all times be effective.
11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters and shall terminate upon termination or cancellation of this
Agreement.
12. Notices.
-------
Except as otherwise provided in this Agreement, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of telecommunication and
confirmed. Notices to Offerors shall be sent to 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxx Xxxxx, Xxxxx 00000, Attention: Xxxxxx X. Xxxxx (with a copy to Jenkens &
Xxxxxxxxx, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: L.
Xxxxxx Xxxxxx, Esq.) and notices to the Underwriters shall be sent to
[_________, ____________], Attention: [_________] (with a copy to [_________,
___________], Attention: [_________]). In all dealings with the Company under
this Agreement, [_________] shall act as representative of and on behalf of the
several Underwriters, and the Company shall be entitled to Act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by Xxxxxx, Xxxxxxxx & Company, Incorporated on behalf of the Underwriters,
as if the same shall have been made or given in writing by the Underwriters.
13. Parties.
-------
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person controlling the Offerors or the
Underwriters, and their respective successors and assigns. No other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, in his status as such
purchaser, from the Underwriters of the Designated Preferred Securities.
14. Governing Law.
-------------
29
This Agreement shall be governed by the laws of the State of Texas, without
giving effect to the choice of law or conflicts of law principles thereof.
15. Authority.
---------
Any certificate signed by an authorized officer of the Company and
delivered to the Representative or to counsel for the Underwriters pursuant to
this Agreement shall be deemed a representation and warranty by the Company to
the Underwriters as to the matters covered thereby.
16. Counterparts.
------------
This Agreement may be executed by facsimile and in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
AMERICREDIT CORP.
By: ________________________________
Name: ______________________________
Title: _____________________________
AMERICREDIT CAPITAL TRUST I
By: ________________________________
Name: ______________________________
Title: _____________________________
CONFIRMED AND ACCEPTED,
as of [__________], 2001.
[_______________________]
By: ________________________________
Name: ______________________________
Title: _____________________________
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
30
SCHEDULE I
----------
Underwriter Number of Shares
EXHIBIT A
---------
LIST OF SUBSIDIARIES
