Exhibit 1.01
Debt Securities
XXXXXX BROTHERS HOLDINGS INC.
FORM OF
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UNDERWRITING AGREEMENT
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New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxxx Brothers Holdings Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to you and the other underwriters named
in Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities") to be issued under
the indenture (the "Indenture") identified in such Schedule I, between the
Company and the trustee (the "Trustee") identified therein. If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives" shall each be deemed
to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file number
of which is set forth in Schedule I hereto), which has become effective,
for the registration of the Securities under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(x) under the Securities
Act and complies in all other material respects with such rule. The
Company proposes to file with the Commission pursuant to Rule 424 under
the Securities Act ("Rule 424") a supplement to the form of prospectus
included in the registration statement relating to the initial offering
of the Securities and the plan of distribution thereof and has
previously advised you of all further information (financial and other)
with respect to the Company to be set forth therein. The term
"Registration Statement" means the registration statement, as
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amended at the date of this Agreement, including the exhibits thereto,
financial statements, and all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), and such prospectus as then amended, including the
Incorporated Documents, is hereinafter referred to as the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), is hereinafter
called the "Final Prospectus". Any preliminary form of the Basic
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus". Any reference herein to
the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to and
include the Incorporated Documents which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act"), on or before the
date of this Agreement or the issue date of the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any Incorporated Documents under the Exchange
Act after the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
with the Commission pursuant to Rule 424, when, before the Closing Date
(hereinafter defined), any amendment to the Registration Statement becomes
effective, when, before the Closing Date, any Incorporated Document is
filed with the Commission, when any supplement to the Final Prospectus is
filed with the Commission and at the Closing Date, the Registration
Statement, the Final Prospectus and any such amendment or supplement will
comply in all material respects with the applicable requirements of the
Securities Act and the Rules, and the Incorporated Documents will comply
in all material respects with the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations adopted by
the Commission thereunder; on the date hereof and on the Closing Date, the
Indenture shall have been qualified under and will comply in all material
respects with the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"); on the date it became effective, the Registration
Statement did not, and, on the date that any post-effective amendment to
the Registration Statement becomes effective, the Registration Statement
as amended by such post-effective amendment did not or will not, as the
case may be, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; on the date the Final Prospectus is
filed with the Commission pursuant to Rule 424 and on the Closing Date,
the Final Prospectus, as it may be amended or supplemented, will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading; and on said
dates, the Incorporated Documents will comply in all material respects
with the applicable
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provisions of the Exchange Act and rules and regulations of the Commission
thereunder, and, when read together with the Final Prospectus, or the
Final Prospectus as it may be then amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading; provided that the foregoing representations and warranties in
this paragraph (b) shall not apply to statements or omissions made in
reliance upon and in conformity with written information furnished to the
Company by or through the Representatives on behalf of any Underwriter
specifically for use in connection with the preparation of the
Registration Statement or the Final Prospectus, as they may be amended or
supplemented, or to any statements in or omissions from the statement of
eligibility and qualification on Form T-1 of the Trustee under the Trust
Indenture Act ("Form T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of their
respective dates, complied in all material respects with the requirements
of the Securities Act and of the Rules and did not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Commission has not issued
an order preventing or suspending the use of the Basic Prospectus or any
Interim Prospectus.
(d) The nationally recognized firm of independent public accountants
whose report appears in the Company's most recent Annual Report on Form
10-K, which is incorporated by reference in the Final Prospectus, are
independent public accountants as required by the Securities Act and the
Rules.
(e) In the event that a report of a nationally recognized firm of
independent public accountants regarding historical financial information
with respect to any entity acquired by the Company is required to be
incorporated by reference in the Final Prospectus, such independent public
accountants were independent public accountants, as required by the
Securities Act and the Rules, during the period of their engagement to
examine the financial statements being reported on and at the date of
their report.
(f) The audited consolidated financial statements of the Company in
the Final Prospectus and the Registration Statement present fairly on a
consolidated basis the financial position, the results of operations,
changes in common stock and other stockholder's equity and cash flows of
the Company and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The unaudited consolidated financial statements of the Company,
if any, included in the Final Prospectus and the Registration Statement
and the related notes are true, complete and correct, subject to normally
recurring changes resulting from year-end audit adjustments, and have been
prepared in accordance with the instructions to Form 10-Q.
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(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse development which materially affects the
business, properties, financial condition or results of the Company or the
Company and its subsidiaries taken as whole, from the dates as of which
information is given in the Registration Statement and Final Prospectus.
(h) The Securities conform to the description thereof contained in
the Final Prospectus, are duly and validly authorized, and, when validly
authenticated, issued and delivered in accordance with the Indenture and
sold to the Underwriters as provided in this Agreement, will be validly
issued and outstanding obligations of the Company entitled to the benefits
of the Indenture.
(i) Neither the Company nor any of the Significant Subsidiaries (as
defined below) is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and its subsidiaries
taken as a whole. The execution, delivery and performance of this
Agreement will not conflict with, result in the creation or imposition of
any material lien, charge or encumbrance upon any of the assets of the
Company or any of its subsidiaries pursuant to the terms of, or constitute
a default under, any material agreement, indenture or instrument, or
result in a violation of the corporate charter or by-laws of the Company
or any of its subsidiaries or any order, rule or regulation of any court
or governmental agency having jurisdiction over the Company, any of the
Significant Subsidiaries or their property. Except as set forth in the
Final Prospectus or as required by the Securities Act, the Exchange Act,
the Trust Indenture Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
performance of this Agreement. "Significant Subsidiary" means Xxxxxx
Brothers Inc., Xxxxxx Brothers International (Europe), Xxxxxx Brothers
Finance S.A. and Xxxxxx Brothers Special Financing Inc.
(j) Each of the Company and the Significant Subsidiaries have been
duly organized, are validly existing and in good standing under the laws
of their respective jurisdictions of incorporation, are duly qualified to
do business and in good standing as foreign corporations and are fully
registered as a broker-dealer, broker, dealer or investment advisor, as
the case may be, in each jurisdiction in which their respective ownership
of property or the conduct of their respective businesses requires such
qualification or registration and in which the failure to qualify or
register would be reasonably likely, individually or in the aggregate, to
have a material adverse effect on the business, condition or properties of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"). Each of the Company and the Significant Subsidiaries holds all
material licenses, permits, and certificates from governmental authorities
necessary for the conduct of its business and owns, or possesses adequate
rights to use, all material rights necessary for the conduct of such
business and has not received any notice of
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material conflict with the asserted rights of others in respect thereof,
except in each case where the failure to do so would not be reasonably
likely, individually or in the aggregate, to have a Material Adverse
Effect; and each of the Company and the Significant Subsidiaries has the
corporate power and authority necessary to own or hold its properties and
to conduct the businesses in which it is engaged. Except as may be
disclosed in the Registration Statement and the Final Prospectus, all
outstanding shares of capital stock of the Significant Subsidiaries have
been duly authorized and are validly issued and outstanding, fully paid
and non-assessable and, except for directors' qualifying shares, are owned
by the Company, directly or indirectly through subsidiaries, free and
clear of any lien, pledge and encumbrance or any claim of any third party.
(k) Except as described in the Registration Statement and the Final
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries which might reasonably be expected to
have a Material Adverse Effect or which is required to be disclosed in the
Registration Statement and the Final Prospectus.
(l) The certificates delivered pursuant to paragraph (f) of Section
6 hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Securities
were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, in all material respects true and
complete.
2. SALE AND PURCHASE OF THE SECURITIES. The Company agrees to sell to each
Underwriter, and each Underwriter, on the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein stated, agrees to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedule II hereto, except that,
if Schedule I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto, less
the respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts (as hereinafter defined) are herein called "Contract
Securities". The obligations of the Underwriters under this Agreement are
several and not joint. [TO BE INCLUDED IN GLOBAL OFFERING: The Underwriters have
each agreed to the provisions contained in the Shearson Xxxxxx Brothers Inc.
Agreement Among Underwriters Basic Provision for Offerings of Securities, dated
as of May 15, 1985.]
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities, or a portion thereof, from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve, and the Underwriters will endeavor to
make such arrangements. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies,
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pension funds and educational and charitable institutions. The Company will make
Delayed Delivery Contracts in all cases where sales of Contract Securities
arranged by the Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery Contract must be for
not less than the minimum principal amount set forth in Schedule I hereto and
the total principal amount of Contract Securities may not exceed the maximum
principal amount set forth in Schedule I hereto. The Underwriters will not have
any responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which bears the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the total principal amount of Securities set forth in
Schedule II hereto, except to the extent that the Representatives determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the total principal
amount set forth in Schedule II hereto less the total principal amount of
Contract Securities.
3. DELIVERY AND PAYMENT. Delivery by the Company of the Underwriters'
Securities to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by certified or official
bank check or checks payable in, or by wire transfer of, immediately available
(federal) funds to or upon the order of the Company shall take place at the
office, on the date and at the time specified in Schedule I hereto, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date").
Concurrently with the delivery of any payment for Underwriters' Securities
as provided in this Section 3, the Company will deliver to the Representatives
for the respective accounts of the several Underwriters a check in an amount
equal to the fee set forth in Schedule I hereto with respect to the principal
amount of Securities for which Delayed Delivery Contracts are made.
The Underwriters' Securities will be registered in such names and in such
authorized denominations as the Representatives may request no less than two
full business days in advance of the Closing Date. The Company agrees to have
the Underwriters' Securities available for inspection, checking and packaging by
the Representatives at such place as is designated by the Representatives, not
later than 1:00 p.m., New York City time, on the business day prior to the
Closing Date.
4. OFFERING BY UNDERWRITERS. The Company hereby confirms that the
Underwriters and dealers have been authorized to distribute or cause to be
distributed any Interim Prospectus and are authorized to distribute the Final
Prospectus (as from time to time amended or supplemented if the Company
furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Securities has been terminated, the Representatives will so advise the
Company.
5. AGREEMENTS. The Company agrees with the several Underwriters that:
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(a) The Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 as required thereby and will promptly
advise the Representatives (A) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (B) when any amendment to
the Registration Statement relating to the Securities shall have become
effective, (C) of any request by the Commission for any amendment of the
Registration Statement, the Final Prospectus, the Basic Prospectus or any
Interim Prospectus, or for any additional information, (D) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the qualification of the Indenture or the
institution or threatening of any proceedings for that purpose and (E) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. After the date of this Agreement and prior to the termination of
the offering of these Securities the Company will not file any amendment
of the Registration Statement or amendment or supplement to the Final
Prospectus (except an amendment or supplement to the Final Prospectus that
is deemed to be incorporated by reference in the Final Prospectus pursuant
to Item 12 of Form S-3) without the consent of the Representatives and
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
Prior to receipt of the advice to be given by the Representatives pursuant
to Section 4, the Company will not file any document that would be deemed
to be incorporated by reference in the Final Prospectus pursuant to Item
12 of Form S-3 without delivering to the Representatives a copy of the
document proposed to be so filed, such delivery to be made at least
twenty-four hours prior to such filing, and the Company will consult with
the Representatives as to any comments which the Representatives make in a
timely manner with respect to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time during which a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event
occurs as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or supplement
the Final Prospectus to comply with the Securities Act or the Rules, the
Company promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance and will use its best efforts to cause
any amendment of the Registration Statement containing an amended Final
Prospectus to be made effective as soon as possible.
(c) The Company will deliver to the Representatives, without charge,
(i) signed copies of the Registration Statement relating to the Securities
and of any amendments thereto (including all exhibits filed with, or
incorporated by reference in, any such document) and (ii) as many
conformed copies of the
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Registration Statement and of any amendments thereto which shall become
effective on or before the Closing Date (excluding exhibits) as the
Representatives may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will deliver, without
charge to the Representatives and to Underwriters and dealers, at such
office or offices as the Representatives may designate, as many copies of
the Basic Prospectus, any Interim Prospectus and the Final Prospectus as
the Representatives may reasonably request.
(e) The Company will make generally available to its security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its subsidiaries,
covering a period of at least 12 months beginning after the date the Final
Prospectus is filed with the Commission pursuant to Rule 424, which will
satisfy the provisions of Section 11(a) of the Securities Act.
(f) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Securities for offering and sale under the laws of such jurisdictions as
the Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(g) So long as any Securities are outstanding, the Company will
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission.
(h) If the Company has applied for the listing of the Securities on
the New York Stock Exchange Inc. (the "NYSE"), it will use its best
efforts to cause such listing to be approved as soon as possible.
(i) For a period beginning at the time of execution of this
Agreement and ending on the later of the business day following the
Closing Date or following the date on which any price restrictions on the
sale of the Securities are terminated, without the prior consent of the
Representatives, the Company will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company covered by the
Registration Statement or any other registration statement filed under the
Securities Act.
(j) The Company will use its best efforts to do and perform all
things to be done and performed hereunder prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Securities to be
purchased hereunder.
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6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy in
all material respects of the representations and warranties on the part of the
Company contained herein as of the date hereof and the Closing Date, to the
accuracy of any material statements made in any certificates, opinions,
affidavits, written statements or letters furnished to the Representatives or to
Xxxxxxx Xxxxxxx & Xxxxxxxx ("Underwriters' Counsel") pursuant to this Section 6,
to the performance by the Company of its respective obligations hereunder and to
the following additional conditions:
(a) The Final Prospectus shall have been filed with the Commission
pursuant to Rule 424 not later than 5:00 p.m., New York City time, on the
second business day following the date of this Agreement or such later
date and time as shall be consented to in writing by the Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the qualification
of the Indenture, shall be in effect and no proceedings for such purpose
shall be pending before or threatened by the Commission and any requests
for additional information on the part of the Commission (to be included
in the Registration Statement or the Final Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall not have
been any change or decrease specified in the letter referred to in
paragraph (g) of this Section 6 which, in the judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
offering and delivery of the Securities as contemplated by the
Registration Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives the
opinion of a Deputy General Counsel or the Chief Legal Officer for the
Company, dated the day of the Closing Date, to the effect that:
(i) The Company has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its
incorporation with all requisite corporate power and authority to own and
operate its properties and to conduct its business as described in the
Final Prospectus.
(ii) The Securities and the Indenture conform in all material
respects to the descriptions thereof contained in the Final Prospectus.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms; and the
Securities have been duly authorized, executed and issued by the Company,
and assuming due authentication by the Trustee and upon payment and
delivery in accordance with the Underwriting Agreement, will constitute
legal, valid and binding obligations of the Company
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entitled to the benefits of the Indenture; provided however, that the
foregoing is subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and by an implied
covenant of good faith and fair dealing.
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated in this Agreement, except for (1) such consents,
approvals, authorizations or orders as have been obtained under the
Securities Act and such as may be required under the Exchange Act and the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters, and (2) the
qualification of the Indenture under the Trust Indenture Act, which has
been obtained.
(v) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules which have not been filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules.
(vi) To the best of such counsel's knowledge, neither the
Company nor any Significant Subsidiary that is organized under the laws of
the United States or any State or territory thereof (a "Domestic
Significant Subsidiary") is in violation of its corporate charter or
by-laws, or in default under any material agreement, indenture or
instrument known to such counsel, the effect of which violation or default
would be material to the Company and its subsidiaries taken as a whole.
(vii) This Agreement and, to the extent applicable, the Delayed
Delivery Contracts have been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this Agreement and
any Delayed Delivery Contracts by the Company will not conflict with, or
result in the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company or any Domestic
Significant Subsidiary pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument known to such
counsel and to which the Company or any Domestic Significant Subsidiary is
a party or is bound, or result in a violation of the corporate charter or
by-laws of the Company or any Domestic Significant Subsidiary or any
order, rule or regulation known to such counsel of any court or
governmental agency having jurisdiction over the Company, any Domestic
Significant Subsidiary or any of their respective properties, the effect
of which would be material to the Company and its subsidiaries taken as a
whole.
(viii) The Registration Statement has become effective under the
Securities Act, and, to the best of the knowledge of such counsel, no stop
order
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suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the
Commission.
(ix) The Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (except that no opinion need be
expressed as to the financial statements or other financial or statistical
data or the Form T-1 of the Trustee under the Trust Indenture Act included
or incorporated by reference therein) comply as to form in all material
respects with the requirements of the Securities Act and the Rules.
(x) If the Securities are to be listed on the NYSE,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with the NYSE, and such counsel
has no reason to believe that the Securities will not be authorized for
listing, subject to official notice of issuance and evidence of
satisfactory distribution.
(xi) Each Domestic Significant Subsidiary is a duly organized
and validly existing corporation in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate power and
authority to own and operate its properties and to conduct its business as
described in the Final Prospectus. Each of the Company and the Domestic
Significant Subsidiaries is duly qualified to do business as a foreign
corporation, is in good standing and is duly registered as a
broker-dealer, broker, dealer or investment advisor, as the case may be,
in each jurisdiction in which the nature of the business conducted by it
or in which the ownership or holding by lease of the properties owned or
held by it require such qualification or registration and where the
failure to so qualify or register would have a Material Adverse Effect.
(xii) All the outstanding shares of capital stock of each
Domestic Significant Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable and, except for directors'
qualifying shares, are owned by the Company or a subsidiary of the Company
free and clear of any claims, liens, encumbrances and security interests.
(xiii) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or any
of its subsidiaries which would affect the subject matter of this
Agreement or is required to be disclosed in the Final Prospectus which is
not disclosed and correctly summarized therein.
Such opinion shall also contain a statement that although such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Final Prospectus (except as to those matters stated in
paragraph (ii) of such opinion), such counsel has no reason to believe that (i)
the Registration Statement, as of its effective date, contained any untrue
statement of a
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material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
(ii) the Final Prospectus contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except that no opinion need be expressed as to the financial
statements or other financial or statistical data or the Form T-1 included or
incorporated by reference therein). In rendering such opinion, such counsel may
rely upon opinions of local counsel satisfactory to the Representatives for
matters not governed by New York law and may rely as to matters of fact, to the
extent he deems proper, upon certificates or affidavits of officers of the
Company, the Trustee and public officials. Such counsel may rely on a
certificate of the Trustee with respect to the execution of the Securities by
the Company and the authentication thereof by the Trustee.
(e) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of the Closing Date, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Vice President and its Chief Financial Officer or its
Treasurer, dated the day of the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus and this Agreement, and that, to the best
of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date, and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened.
(iii) (x) The Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, (y) the Final Prospectus does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (z)
since the effective date of the Registration Statement there has not
occurred any event required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
13
(g) At the Closing Date, a nationally recognized firm of independent
public accountants shall have furnished to the Representatives a letter,
dated the day of the Closing Date, confirming that they are independent
auditors with respect to the Company within the meaning of the Securities
Act and in form and substance satisfactory to the Representatives, stating
in effect that:
(i) In their opinion, the consolidated financial statements of
the Company and its subsidiaries, and the supporting schedules, included
in the Registration Statement and the Final Prospectus and audited by them
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the related
published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited consolidated
financial statements of the Company and its subsidiaries, if any, included
in the Registration Statement and the Final Prospectus and of the latest
unaudited consolidated financial statements made available by the Company
and Xxxxxx Brothers Inc., carrying out certain specified procedures (but
not an audit in accordance with generally accepted auditing standards), a
reading of the minutes of the meetings of the directors of the Company and
Xxxxxx Brothers Inc., and inquiries of certain officials of the Company
and its subsidiaries, who have responsibility for financial and accounting
matters of the Company and its subsidiaries, as to transactions and events
subsequent to the date of the most recent audited consolidated financial
statements included in the Registration Statement and the Final
Prospectus, nothing came to their attention that caused them to believe
that:
(A) any material modifications should be made to the unaudited
consolidated financial statements of the Company and its subsidiaries, if
any, included in the Registration Statement and the Final Prospectus, for
them to be in conformity with generally accepted accounting principles;
and such financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and the published instructions, rules and regulations thereunder.
(B) the unaudited capsule information of the Company and its
subsidiaries, if any, included in the Registration Statement and the Final
Prospectus does not agree with the amounts set forth in the unaudited
consolidated financial statements of the Company from which it was derived
or was not determined on a basis substantially consistent with that of the
corresponding financial information in the latest audited financial
statements of the Company included in the Registration Statement and the
Final Prospectus.
(C) (I) as of the latest date as of which the Company and its
subsidiaries have monthly financial statements, there was any decrease in
the capital stock, additional paid-in capital or retained earnings, or
increase in long-term indebtedness of the Company and its subsidiaries, as
compared with the amounts
14
shown in the most recent consolidated statement of financial condition of
the Company and its subsidiaries included in the Registration Statement
and the Final Prospectus, (II) with respect to the period subsequent to
the date of the most recent financial statements included in the
Registration Statement and the Final Prospectus and extending through the
latest date as of which the Company and its subsidiaries have monthly
financial statements, there was a consolidated net loss or (III) with
respect to the amounts of net capital or excess net capital of Xxxxxx
Brothers Inc. determined pursuant to Commission Rule 15c3-1 and shown in
the most recent financial statement of Xxxxxx Brothers Inc. filed pursuant
to Commission Rule 17a-5, there has been any decrease in such amounts as
compared with the amounts shown in the most recent consolidated financial
statements included in the Registration Statement and the Final
Prospectus.
(D) as of a specified date not more than three business days prior
to the date of the letter, there was any decrease in the capital stock or
additional paid-in capital, or increase in long-term indebtedness of the
Company and its subsidiaries, as compared with the amounts shown in the
most recent consolidated statement of financial condition of the Company
and its subsidiaries included in the Registration Statement and the Final
Prospectus;
except in all instances for increases or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the Company as
to the significance thereof, unless said explanation is not deemed necessary by
the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus, (x) they have read such
pro forma financial statements, (y) they have made inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company as to the basis for their determination
of the pro forma adjustments and whether such pro forma financial
statements comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X and (z) they have
proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts; and as a result thereof, nothing
came to their attention that caused them to believe that such pro forma
financial statements do not so comply with Rule 11-02 of Regulation S-X
and that such pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(iv) They have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is expressed in dollars, or
percentages derived from dollar amounts, and has been obtained from the
general accounting records of the Company) set forth in the Registration
Statement, as amended, and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration Statement, including
specified information, if any, included or incorporated from the Company's
Annual Report on Form 10-K incorporated therein or specified information,
if any, included or incorporated from any of the
15
Company's Quarterly Reports on Form 10-Q or its Current Reports on Form
8-K incorporated therein, agrees with the accounting records of the
Company and its subsidiaries or computations made therefrom, excluding any
questions of legal interpretation.
(h) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation.
(i) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives or Underwriters' Counsel may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates
or opinions furnished to the Representatives or Underwriters' Counsel pursuant
to this Section 6 shall not be in all material respects reasonably satisfactory
in form and substance to the Representatives and to Underwriters' Counsel, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing, or by telegraph confirmed
in writing.
7. EXPENSES. (a) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company will pay
all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issuance, sale and delivery of the
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), any
Interim Prospectus, the Basic Prospectus, the Final Prospectus and any
amendments thereof or supplements thereto and the Indenture, and the rating of
the Securities by one or more rating agencies, all costs and expenses (including
fees of Underwriters' Counsel and their disbursements) incurred in connection
with blue sky qualifications, advising on the legality of the Securities for
investment, the filing requirements, if any, of the National Association of
Securities Dealers, Inc. in connection with its review of corporate financings,
the fee for listing the Securities on the NYSE, the fees and expenses of the
Trustee and all costs and expenses of the printing and distribution of all
documents in connection with such offering. Except as provided in this Section
7, the Company will have no responsibility to the Underwriters for the
Underwriters' own costs and expenses, including the fees of Underwriters'
Counsel and any advertising expenses in connection with any offer the
Underwriters may make.
(b) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters
set forth in Section 6 hereof is not satisfied or because of any refusal,
inability or failure on the part of
16
the Company to perform any agreement herein or comply with any provision
hereof, the Company will, subject to demand by the Representatives,
reimburse the Underwriters for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls such Underwriter within the
meaning of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, as originally filed or in any amendment
thereof, or in any Interim Prospectus, the Basic Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Representatives on
behalf of any Underwriter specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the Final
Prospectus at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Securities Act
and the untrue statement or omission of a material fact contained in the Basic
Prospectus or any Interim Prospectus was corrected in the Final Prospectus,
unless such failure to deliver the Final Prospectus was a result of
noncompliance by the Company with Section 5(d) hereof. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Interim Prospectus or
the Final Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to
state therein a
17
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that the same was made therein in reliance upon and in
conformity with written information furnished to the Company as herein
stated by the Representatives on behalf of such Underwriter specifically
for use in the preparation thereof, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The statements
set forth in the last paragraph of the cover page and under the heading
"Underwriting" in the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in the Registration Statement and the Final Prospectus, as the
case may be, and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and either (i) the
indemnifying party or parties and the indemnified party or parties
mutually agree or (ii) representation of both the indemnifying party or
parties and the indemnified party or parties by the same counsel is
inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, the indemnified
party or parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have
employed counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a) representing the
indemnified parties under subparagraph (a), as the case may be, who are
parties to such action), (ii) the indemnifying party shall not have
18
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party. No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if
there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement
or judgment.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph
(a) of this Section 8 is due in accordance with its terms but is for any
reason held by a court to be unavailable from the Company on grounds of
policy or other similar grounds, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discounts appearing on the cover page of
the Final Prospectus bear to the public offering prices appearing thereon
and the Company is responsible for the balance; provided, however, that
(i) in no case shall any Underwriter (except as may be provided in any
agreement among underwriters) be responsible for any amount in excess of
the underwriting discounts applicable to the Securities purchased by such
Underwriter hereunder and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls an Underwriter within the meaning of the Securities
Act shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to clauses (i) and (ii) of this subparagraph (d). Any party entitled
to contribution will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties under
this subparagraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party
19
or parties shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder or
otherwise than under this subparagraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for all of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount
of Securities set forth opposite their names in Schedule II hereto bear to
the aggregate principal amount of Securities set opposite the names of the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of the Securities, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation
to purchase any, of the Securities, and if such non-defaulting Underwriters
do not purchase all the Securities, this Agreement will terminate without
liability to any non-defaulting Underwriters or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing herein contained shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. [TO BE INCLUDED IN GLOBAL OFFERING: REPRESENTATIONS AND WARRANTIES OF
THE UNDERWRITERS.
Each Underwriter represents and warrants to the Company that (i) it has
not offered or sold and prior to the date six months after the date of issue of
the Securities will not offer or sell Securities in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
public offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services Xxx 0000 with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on, and will only issue or pass on, in the United Kingdom any document received
by it in connection with the issue of the Securities to a person who is of a
kind described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisement) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.]
11. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company at or
prior to delivery of and payment for all the Securities, if, prior to such time
(i) trading in securities generally on the NYSE or the over-the-counter market
shall have been suspended or limited or minimum prices shall have been
established on the NYSE or the over-the-counter market, (ii) a banking
20
moratorium shall have been declared either by federal or New York State
authorities, (iii) any new restriction materially affecting the distribution of
the Securities shall have become effective; trading in any securities of the
Company shall have been suspended or halted by any national securities exchange,
the National Association of Securities Dealers, Inc. or the Commission, (iv) the
United States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States, or (v) there shall have been such a
material adverse change in national or international political, financial or
economic conditions, national or international equity markets or currency
exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Securities.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers (as such officers) and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of its officers or directors or any controlling person within the
meaning of the Securities Act, and will survive delivery of the payment for the
Securities.
13. NOTICES. All communications hereunder will be in writing, and, if sent
to the Representatives will be mailed, delivered, telegraphed or telexed and
confirmed to them, at the address specified in Schedule I hereto; or, if sent to
the Company will be mailed, delivered, telegraphed or telexed and confirmed to
it at 3 World Financial Center, New York, New York 10285, Attention: Chief
Financial Officer.
14. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their successors and, to the extent and only to the
extent stated in Section 8 hereof, the officers and directors and controlling
persons referred to in Section 8 hereof, and except as provided in Section 8
hereof, no person other than the parties hereto and their respective successors
will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
XXXXXX BROTHERS HOLDINGS INC.
By
------------------------------
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
XXXXXX BROTHERS INC.
By
------------------------------
Title:
Acting on behalf of the
Representatives named in
Schedule I annexed hereto and
the several Underwriters named
in Schedule II annexed hereto.
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-
Representative and Address: Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Indenture, Title, Purchase Price and Description of Securities:
Indenture:
Title:
Principal amount:
Price to public:
Purchase price:
Interest rate:
Time of payment of interest:
Maturity:
Sinking fund provisions:
Redemption provisions:
Repayment:
Closing Date, Time and Location:
Date:
Time:
Location: Xxxxxx Brothers Holdings Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Delayed Delivery Arrangements:
SCHEDULE II
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITERS PURCHASED
------------ ---------
Xxxxxx Brothers Inc................................................ $
---------
Total........................................................ $
=========
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 20
[Insert name and address of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxx Brothers
Holdings Inc. (the "Company"), and the Company agrees to sell to the
undersigned, on ________, 20__ (the "Delivery Date"), $_________ principal
amount of the Company's ____% due ____________ (the "Securities") offered by
the Company's Prospectus dated _____________, 20__, and related Prospectus
Supplement dated ____________, 20__, receipt of a copy of which is hereby
acknowledged, at a purchase price of __% of the principal amount thereof,
plus accrued interest or amortization of original issue discount, if any,
thereon from ____________, 20__ to the date of payment and delivery, and on
the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall
be made on or before 11:00 a.m., New York City time, on the Delivery Date to or
upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the Company
to sell and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the failure
thereof) that (1) the purchase of Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
2
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other. It is understood
that acceptance of this contract and other similar contracts is in the Company's
sole discretion and, without limiting the foregoing, need not be on a first
come, first served basis. If this contract is acceptable to the Company, it is
required that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned, as of the date first above written, when such counterpart is so
mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By
------------------------------------
(Signature and Title of Officer)
------------------------------------
(Address)
Accepted:
Xxxxxx Brothers Holdings Inc.
By
----------------------------------
Authorized Signature)