CENDANT CORPORATION
(A DELAWARE CORPORATION)
[ ]
--------------
CD COMMON STOCK
UNDERWRITING AGREEMENT
DATED:____________
CENDANT CORPORATION
(a Delaware corporation)
_______ Shares of CD Common Stock
Par Value $0.01 Per Share
UNDERWRITING AGREEMENT
[Date]
To the Underwriters named in Schedule I
Ladies and Gentlemen:
Cendant Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the underwriters named in Schedule I the number of shares
of CD Common Stock specified in Schedule II (the "Firm Shares") on the terms and
conditions stated herein and in Schedule II. The Company also grants to the
Underwriters, severally and not jointly, the option described in Section 2 to
purchase all or any part of the additional shares of CD Common Stock as set
forth in Schedule II to cover over-allotments (the "Additional Shares") on the
terms and conditions stated herein and in Schedule II. The Additional Shares
together with the Firm Shares are herein called the "Shares". As used herein,
unless the context otherwise requires, the term "Underwriters" shall mean the
firm or firms named as Underwriter or Underwriters in Schedule I and the term
"you" shall mean the Underwriter or Underwriters, if no underwriting syndicate
is purchasing the Shares, or the representative or representatives of the
Underwriters, if an underwriting syndicate is purchasing the Shares, as
indicated in Schedule I. The Shares may be sold pursuant to delayed delivery
contracts, a form of which is attached as Schedule III (the "Delayed Delivery
Contracts"), as specified in Schedule II.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333- )
including a prospectus, relating to certain of its debt securities, Preferred
Stock, CD Common Stock, stock purchase contracts, stock purchase units and
warrants and the offering thereof from time to time in accordance with Rule 415
under the Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement has been declared effective by the Commission. As provided in Section
3(a), a prospectus supplement reflecting the terms of the Shares, the terms of
the offering thereof and the other matters set forth therein has been prepared
and will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus
supplement, in the form first filed after the date hereof pursuant to Rule 424,
is herein referred to as the "Prospectus Supplement". Such registration
statement, as amended at the date hereof, together with the Rule 462(b)
Registration Statement under the 1933 Act, including the exhibits thereto and
the documents incorporated by reference therein, is herein called the
"Registration Statement", and the basic prospectus included therein relating to
all offerings of debt securities, Preferred Stock, CD Common Stock, stock
purchase contracts, stock purchase units and warrants under the Registration
Statement, as supplemented by
the Prospectus Supplement, is herein called the "Prospectus", except that, if
such basic prospectus is amended or supplemented on or prior to the date on
which the Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus, as so amended or supplemented
and as supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein.
You have advised us that you and the other Underwriters, acting
severally and not jointly, desire to purchase the Firm Shares and that you have
been authorized by the other Underwriters to execute this Underwriting Agreement
("this Agreement") on their behalf.
Section 1. Representations and Warranties. (a) The Company represents
and warrants to and agrees with each Underwriter that:
(i) On the original effective date of the Registration Statement,
on the effective date of the most recent post-effective amendment thereto,
if any, on the date of the filing of any Rule 462(b) Registration
Statement, and on the date of the filing by the Company of any annual
report on Form 10-K after the original filing of the Registration
Statement, the Registration Statement complied in all material respects
with the requirements of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations") and did 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; on the date hereof, at the Closing Time (as defined below)
and at each Delivery Date (as defined below), if any, the Registration
Statement, and any amendments thereof, and the Prospectus, and any
amendments thereof and supplements thereto, comply and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations, and neither the Registration Statement nor any amendments
thereof include or will include an untrue statement of a material fact or
omit or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and neither the
Prospectus, nor any amendments thereof and supplements thereto, include or
will include an untrue statement of a material fact or omit or will 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 the Company makes no
representations or warranties as to statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter, directly or through you,
expressly for use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act, and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations") and,
when read together with the other information in the Prospectus, do not and
will not, on the date hereof, at the Closing Time and at each Delivery
Date, if any, include an untrue statement of a material fact or omit to
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state a 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.
(iii) The accountants (individually an "Accountant" and together
the "Accountants"), who have reported upon the audited financial statements
and schedules included or incorporated by reference in the Registration
Statement, are each independent public accountants as required by the 1933
Act and the 1933 Act Regulations with respect to (i) the Company and (ii)
each corporation whose financial statements have been included in the
Registration Statement for each of the years reported on by the
Accountants.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The consolidated financial statements included or
incorporated by reference in the Registration Statement present fairly the
consolidated financial position and stockholders' equity and the
consolidated results of operations and consolidated statements of cash
flows of the entities purported to be shown thereby at the indicated dates
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. The financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein. The selected financial data included or incorporated by reference
in the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited consolidated
financial statements incorporated by reference in the Registration
Statement. The pro forma financial statements and other pro forma financial
information included or incorporated by reference in the Prospectus present
fairly the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(vi) The Company is duly organized and is validly existing in
good standing as a corporation under the laws of the State of Delaware with
corporate power and corporate authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus. The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(vii) The authorized capital stock of the Company conforms to the
description thereof under the caption "Description of Capital Stock"
contained in the
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Prospectus and such description conforms to the rights set forth in the
instruments defining the same.
(viii) The Shares have been duly authorized and, when issued and
paid for in accordance with this Agreement, will be validly issued, fully
paid and non-assessable. All corporate action required to be taken for the
authorization, issuance and delivery of such Shares has been validly taken.
The issuance of the Shares is not subject to any preemptive rights of any
stockholder of the Company.
(ix) In the event that any of the Shares are purchased pursuant
to Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered on
behalf of the Company and duly authorized, executed and delivered on behalf
of the purchaser thereunder, will constitute a valid and binding obligation
of the Company enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).]
(x) All of the other outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder; and none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive rights of any stockholder of the Company.
(xi) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, there has not been (A) any material
adverse change in the financial condition, earnings or business affairs of
the Company and its Subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business, (B) any transaction entered
into by the Company or any Subsidiary, other than in the ordinary course of
business, that is material to the Company and its Subsidiaries, considered
as one enterprise, or (C) any dividend or distribution of any kind
declared, paid or made by the Company on its capital stock.
(xii) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect on
the financial condition, earnings or business affairs of the Company and
its Subsidiaries, considered as one enterprise. The execution and delivery
by the Company of this Agreement and any Delayed Delivery Contracts, the
issuance and delivery of the Shares, the consummation by the Company of the
transactions concerning the Shares contemplated herein and in the
Registration Statement and compliance by the Company with the terms of this
Agreement and any Delayed Delivery Contracts have, in each case,
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been duly authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the certificate
of incorporation or by-laws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any Subsidiary under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any Subsidiary is a party or by which it may be bound or to
which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have
a material adverse effect on the financial condition, earnings or business
affairs of the Company and its Subsidiaries, considered as one enterprise)
or (B) any existing applicable law, rule, regulation (other than state
securities, foreign securities or Blue Sky laws, rules and regulations),
judgment, order or decree of any government, governmental instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their respective properties (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the financial condition,
earnings or business affairs of the Company and its Subsidiaries,
considered as one enterprise).
(xiii) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act and the 1934 Act and the securities or Blue
Sky laws of the various states and foreign securities laws), is required
for the valid authorization, issuance, sale and delivery of the Shares or
for the compliance with the transactions contemplated in this Agreement.
(xiv) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary that is required to be disclosed in the Prospectus or that
could reasonably be expected to result in any material adverse change in
the financial condition, earnings or business affairs of the Company and
its Subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the properties or assets of the
Company and its Subsidiaries, considered as one enterprise, or that could
reasonably be expected to adversely affect the consummation of the
transactions contemplated in this Agreement.
(xv) Neither the Company nor any of its Subsidiaries has taken or
will take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of
the price of the CD Common Stock.
(xvi) The Shares will, upon notice of issuance, be listed on the
New York Stock Exchange (the "NYSE").
(xvii) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
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(b) Any certificate signed by any officer of the Company or any
Subsidiary and delivered to you or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company or by a Subsidiary, as
applicable, to each Underwriter as to the matters covered thereby.
Section 2. Purchase and Sale. On the basis of the representations and
warranties herein contained (except as may be otherwise specified in Schedule II
hereto) and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share for
the Firm Shares set forth in Schedule II hereto, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto.
(b) In addition, on the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters, severally and not jointly,
to purchase up to an additional [ ] of Additional Shares as set forth in
Schedule II hereto at the same purchase price as shall be applicable to the Firm
Shares. The option hereby granted will expire 30 days after the date hereof, and
may be exercised, in whole or from time to time in part (but not more than
twice), only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Firm Shares upon notice by
you to the Company setting forth the number of Additional Shares as to which the
several U.S. Underwriters are exercising this option, and the time and date of
payment and delivery thereof. Such time and date of delivery (each, a "Delivery
Date") shall be determined by you but shall not be later than seven full
business days after the exercise of such option, nor in any event prior to the
Closing Time. If the option is exercised as to all or any portion of the
Additional Shares, each of the Underwriters, acting severally and not jointly,
will purchase from the Company that portion of the aggregate number of
Additional Shares being purchased which the number of Firm Shares set forth
opposite the name of such Underwriter bears to the total number of Firm Shares
(such proportion is hereinafter referred to as such Underwriter's "underwriting
obligation proportion").
(c) Payment of the purchase price for, and delivery of, the Firm Shares
shall be made at the date, time and location specified in Schedule II hereto, or
at such other date, time or location as shall be agreed upon by the Company and
you, or as shall otherwise be provided in Section 11 (such date and time of
payment and delivery being herein called the "Closing Time"). Unless otherwise
specified in Schedule II, payment shall be made to the Company by you by wire or
bank transfer of same day funds payable to the account of the Company, against
delivery to you for the respective accounts of the several Underwriters of the
Firm Shares. Certificates for the Firm Shares shall be in such authorized
denominations and registered in such names as you may request in writing at
least two full business days before the Closing Time. Certificates for the Firm
Shares will be made available in New York City for examination and packaging by
you not later than 10:00 A.M. on the business day prior to the Closing Time. In
addition, in the event that any or all of the Additional Shares are purchased by
the Underwriters, payment of the purchase price for, and delivery of, such
Additional Shares shall be made at the same location as set forth above, or at
such other place as the Company and you shall determine, on each Delivery Date
as specified in the notice from you to the Company. Payment for the Additional
Shares shall be made by wire or bank transfer of same day funds.
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(d) If specified in Schedule II, the Underwriters may solicit offers to
purchase Shares from the Company pursuant to Delayed Delivery Contracts
substantially in the form of Schedule III with such changes therein as the
Company may approve. Any Delayed Delivery Contracts are to be with institutional
investors of the types set forth in the Prospectus. If Delayed Delivery
Contracts are specified in Schedule II, at the Closing Time, the Company will
enter into Delayed Delivery Contracts (for the minimum principal amount of
Shares per Delayed Delivery Contract specified in Schedule II) with all
purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate principal amount of Shares less than
or greater than the minimum and maximum aggregate principal amounts specified in
Schedule II. The Underwriters will not have any responsibility for the validity
or performance of Delayed Delivery Contracts.
(e) You are to submit to the Company, at least three business days
prior to the Closing Time, the names of any institutional investors with which
it is proposed that the Company enter into Delayed Delivery Contracts, the
number of Shares to be purchased by each of them and the date of delivery
thereof, and the Company will advise you, at least two business days prior to
the Closing Time, of the names of the institutions with which the making of
Delayed Delivery Contracts is approved by the Company and the number of Shares
to be covered by each such Delayed Delivery Contract.
(f) As compensation for arranging Delayed Delivery Contracts, the
Company will pay (by wire or bank transfer of same day funds) to you at the
Closing Time, for the accounts of the Underwriters, a fee equal to that
percentage of the gross proceeds from the sale of the Shares for which Delayed
Delivery Contracts are made at the Closing Time as is specified in Schedule II
or the amount of such fee may be deducted from the payment delivered pursuant to
Section 2(c).
(g) The number of Shares agreed to be purchased by each Underwriter
shall be reduced by the number of Shares covered by Delayed Delivery Contracts
as to such Underwriter, as set forth in a notice delivered by you to the
Company; provided, however, that the total number of Shares to be purchased by
all Underwriters shall be the number of Shares covered by this Agreement, less
the number of Shares covered by all Delayed Delivery Contracts.
It is understood that each Underwriter has authorized you, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Shares that it has agreed to purchase. You, individually and not
as Representatives, may (but shall not be obligated to) make payment of the
purchase price for the Firm Shares to be purchased by any Underwriter whose
payments shall not have been received by the Closing Time or each Delivery Date,
if any, as the case may be.
Section 3. Certain Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) If reasonably requested by you in connection with the offering of
the Shares, the Company will prepare a preliminary prospectus supplement
containing such information as you and the Company deem appropriate and,
immediately following the
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execution of this Agreement, the Company will prepare a Prospectus Supplement
that complies with the 1933 Act and the 1933 Act Regulations and that sets forth
the number of Shares and their terms, the name of each Underwriter participating
in the offering and the number of Shares that each severally has agreed to
purchase, the name of each Underwriter, if any, acting as representative of the
Underwriters in connection with the offering, the price at which the Shares are
to be purchased by the Underwriters from the Company, any initial public
offering price, any selling concession and reallowance and [any delayed delivery
arrangements, and] such other information as you and the Company deem
appropriate in connection with the offering of the Shares. The Company will
promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of any preliminary prospectus supplement and the
Prospectus as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Shares, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or counsel for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
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 not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
at any such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(f), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Shares, the Company will,
subject to Section 3(f), file promptly all documents required to be filed with
the Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934
Act.
(d) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Shares, the Company will inform
you of its intention to file any amendment to the Registration Statement, any
supplement to the Prospectus or any document that would as a result thereof be
incorporated by reference in the Prospectus; and the Company will furnish you
with copies of any such amendment, supplement or other document at a reasonable
time in advance of filing, except any current report on Form 8-K filed with the
Commission with respect to a press release issued by the Company that is not
reasonably expected to have a material effect on the Company or the price of the
CD Common Stock; provided, however, that the Company shall inform you of its
intention to file documents pursuant to Section 14(d) of the 1934 Act and shall
furnish you with copies of such documents immediately upon the filing thereof;
and provided further that you or your counsel shall not be entitled to object
thereto other than pursuant to Section 3(b).
(e) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Shares, the Company will notify
you immediately, and
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confirm the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or any document that would as a
result thereof be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by
the Commission for any amendment to the Registration Statement or any supplement
to the Prospectus or for additional information relating thereto or to any
document incorporated by reference in the Prospectus and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the institution or threatening of
any proceeding for any of such purposes. The Company will use every reasonable
effort to prevent the issuance of any such stop order or of any order suspending
such qualification and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you one signed copy of
the Registration Statement (as originally filed), of any Rule 462(b)
Registration Statement, and of all amendments thereto, whether filed before or
after the Registration Statement became effective, copies of all exhibits and
documents filed therewith or incorporated by reference therein (through the end
of the period when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Shares) and signed copies of all consents and
certificates of experts, as you may reasonably request, and has furnished or
will furnish to you, for each of the Underwriters, ten conformed copies of the
Registration Statement (as originally filed), of any Rule 462(b) Registration
Statement and of each amendment thereto (including documents incorporated by
reference into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Shares for offering and sale under the applicable
securities laws of such states and other jurisdictions as you may designate and
to maintain such qualifications in effect for a period of not less than one year
from the date hereof; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. The Company will file
such statements and reports as may be required by the laws of each jurisdiction
in which the Shares have been qualified as above provided. The Company will also
supply you with such information as is necessary for the determination of the
legality of the Shares for investment under the laws of such jurisdictions as
you may request.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations), covering (i) a period
of 12 months beginning after the effective date of the Registration Statement
(or, if applicable, any Rule 462(b) Registration Statement) and covering a
period of 12 months beginning after the effective date of any post-effective
amendment to the Registration Statement but not later than the first day of the
Company's fiscal quarter next following such respective effective dates and (ii)
a period of 12 months beginning after the date of this Agreement but not later
than the first day of the Company's fiscal quarter next following the date of
this Agreement.
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(i) If and to the extent specified in Schedule II hereto, the Company
will use its best efforts to cause the Shares to be duly authorized for listing
on the New York Stock Exchange.
(j) For a period of two years after the Closing Time, the Company will
furnish to you and, upon request, to each Underwriter, copies of all annual
reports, quarterly 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, and such other documents, reports and information as shall be
furnished by the Company to its stockholders or security holders generally.
Section 4. Payment of Expenses. The Company will pay and bear all costs
and expenses incident to the performance of its obligations under this
Agreement, including, without limitation, (a) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, any preliminary prospectus
supplements and the Prospectus and any amendments or supplements thereto, and
the cost of furnishing copies thereof to the Underwriters, (b) the preparation,
printing and distribution of this Agreement, [any Delayed Delivery Contracts,]
the Shares, the Blue Sky Survey, (c) the delivery of the Shares to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants and the fees and disbursements of the Company's counsel (including,
without limitation, local counsel upon whom such counsel may rely in rendering
their opinion required by Section 5 and 6 hereof), (e) the qualification of the
Shares under the applicable securities laws, (f) the reasonable fees and
disbursements of counsel in connection with the Blue Sky Survey, and (g) any
applicable fees for listing the Shares on an exchange.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 10(a)(i), the Company shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, incurred by
them in connection with the public offering of the Shares.
Section 5. Conditions of the Underwriters' Obligations. Except as
otherwise provided in Schedule II hereto, the obligations of the several
Underwriters to purchase and pay for the Shares that they have respectively
agreed to purchase hereunder, including any Additional Shares as to which the
option granted in Section 2 has been exercised and the Delivery Date determined
by you is the same as the Closing Time, are subject to (i) the accuracy of the
representations and warranties of the Company contained herein or in
certificates of the Company's officers delivered pursuant to the provisions
hereof, (ii) the performance by the Company of its obligations hereunder, (iii)
the delivery to the Underwriters at the Closing Time by the Company of all of
the Firm Shares, and (iv) the following further conditions:
(a) The Registration Statement shall have become effective prior to the
date hereof or, with your consent, at a later time and date no later, however,
than the first business day following the date hereof, or at such later date as
you may agree to in writing with the approval of a majority in interest of the
several underwriters; and at the Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company, shall be
contemplated by the Commission, and
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any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel for the
Underwriters.
(b) At the Closing Time, you shall have received a signed opinion of
Counsel for the Company and a signed opinion of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, in New York, in its capacity as special counsel for the Company, each
dated as of the Closing Time, together with signed or reproduced copies of such
opinion for each of the other Underwriters, in form and substance reasonably
satisfactory to counsel for the Underwriters.
The opinions referred to above shall be to such further effect with
respect to other legal matters relating to this Agreement and the sale of the
Shares pursuant to this Agreement as counsel for the Underwriters may reasonably
request. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company, as the case may be, and certificates of
public officials; provided that such certificates have been delivered to the
Underwriters.
In giving the opinions referred to above, such counsel may rely, as to
all matters governed by the laws of jurisdictions other than those in which they
are expert, upon opinions of other counsel who shall be counsel reasonably
satisfactory to counsel for the Underwriters, in which case the opinion shall
state that they believe you and they are justified and entitled to so rely.
(c) At the Closing Time, you shall have received the favorable opinion
of _________, counsel for the Underwriters, dated as of the Closing Time,
together with signed or reproduced copies of such opinion for each of the other
Underwriters.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations, and the 1934 Act and
the 1934 Act Regulations, the Company shall have complied in all material
respects with Rule 430A (if it shall have elected to rely thereon) and (A) the
Registration Statement, as it may then be amended or supplemented, shall 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 and (B) the 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 were made, not misleading, (ii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the financial condition,
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding shall be
pending or, to the knowledge of the Company, threatened against the Company or
any Subsidiary that would be required to be set forth in the Prospectus other
than as set forth therein and no proceedings shall be pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary
before or by any federal, state or other commission, board or administrative
agency wherein an unfavorable decision, ruling or finding would materially
adversely affect the financial condition, earnings, business affairs or business
11
prospects of the Company and its Subsidiaries, considered as one enterprise,
other than as set forth in the Prospectus, (iv) the Company shall have complied
in all material respects with all agreements and satisfied in all material
respects all conditions included herein on its part to be performed and
satisfied at or prior to the Closing Time and (v) the other representations and
warranties of the Company set forth in Section 1(a) shall be accurate as though
expressly made at and as of the Closing Time. At the Closing Time, you shall
have received a certificate of the Chairman of the Board or the President and
the Chief Financial Officer of the Company, dated as of the Closing Time, to
such effect, it being understood that such certificate shall not constitute
personal representations and warranties of the signing individual.
(e) You shall have received a letter or letters from the Accountants at
the date hereof in form and substance reasonably satisfactory to the
Underwriters, and a letter or letters to be delivered at the Closing Time
reaffirming the statements made in each such letter or letters, except that the
inquiries and procedures specified therein shall have been carried out to a
specified date not more than five days prior to the Closing Time.
(f) The Company shall have complied with the provisions of Section 3(a)
hereof with respect to the furnishing of Prospectuses and Supplemental
Prospectuses on the business day next succeeding the date of this Agreement, in
such quantities as you reasonably request.
(g) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Shares as herein contemplated and the matters referred to in
Section 5(c) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company, the performance of
any of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Shares as herein contemplated shall be reasonably satisfactory in form and
substance to you and to counsel for the Underwriters.
(h) The Shares have been duly authorized for listing by the New York
Stock Exchange subject to notice of issuance thereof and notice of a
satisfactory distribution of the Shares.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you on notice to the Company at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 4 herein.
Notwithstanding any such termination, the provisions of Sections 7, 8 and 9
shall remain in effect.
Section 6. Conditions to Purchase of Additional Shares. In the event
that the Underwriters exercise their option granted in Section 2 to purchase all
or any of the Additional Shares, and each Delivery Date determined by you
pursuant to Section 2 is later than the Closing Time, the obligations of the
several Underwriters to purchase and pay for the Additional Shares that they
shall have respectively agreed to purchase pursuant to this Agreement
12
(collectively, the "purchased Additional Shares") are subject to the accuracy of
the representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, the delivery to the
Underwriters at the Delivery Date by the Company of such Additional Shares and
to the following further conditions:
(a) The Registration Statement shall remain effective at each Delivery
Date, and, at each Delivery Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to your knowledge or the knowledge of the Company, shall be threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters.
(b) At each Delivery Date, the provisions of Sections 5(d)(i) through
5(d)(v) shall have been complied with at and as of each Delivery Date and, at
each Delivery Date, you shall have received a certificate of the Chairman of the
Board or the President and the Chief Financial Officer of the Company, dated as
of such Delivery Date, to such effect, it being understood that such certificate
shall not constitute personal representations and warranties of the signing
individual.
(c) At each Delivery Date, you shall have received the favorable
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in New York, in its role as
special counsel for the Company, Xxxxx Xxxxxxx, Esq., General Counsel for the
Company, together with signed or reproduced copies of such opinions for each of
the other Underwriters, respectively, dated as of each Delivery Date, relating
to the purchased Additional Shares and otherwise to the same effect required by
Section 5(b), and each such counsel shall have been furnished with all such
documents, certificates and opinions as such counsel may reasonably request for
the purpose of enabling such counsel to deliver such opinion or opinions.
The opinions referred to above shall be to such further effect with
respect to other legal matters relating to this Agreement and the sale of the
Shares pursuant to this Agreement as counsel for the Underwriters may reasonably
request. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company, and certificates of public officials;
provided that such certificates have been delivered to the Underwriters.
In giving the opinions referred to above, each such counsel may rely,
as to all matters governed by the laws of jurisdictions other than those in
which they are expert, upon opinions of other counsel who shall be counsel
reasonably satisfactory to counsel for the Underwriters, in which case the
opinion shall state that they believe you and they are justified and entitled to
so rely.
(d) At each Delivery Date, you shall have received the favorable
opinion of __________, counsel for the Underwriters, dated as of such
Delivery Date, relating to the purchased Additional Shares and otherwise to the
same effect as the opinion required by Section 5(c).
13
(e) At each Delivery Date, you shall have received a separate letter
from the Accountants, in form and substance satisfactory to you and dated as of
such Delivery Date, to the effect that they reaffirm the statements made in
their respective letter furnished pursuant to Section 5(e), except that the
specified date referred to shall be a date not more than five days prior to such
Delivery Date.
(f) At each Delivery Date, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the purchased Additional Shares as contemplated in the Underwriting
Agreement and the matters referred to in Section 6(d) and in order to evidence
the accuracy and completeness of any of the representations, warranties or
statements of the Company, the performance of any of the covenants of the
Company, or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company at or prior to each Delivery Date in connection
with the authorization, issuance and sale of the purchased Additional Shares as
contemplated in the Underwriting Agreement shall be reasonably satisfactory in
form and substance to you and to counsel for the Underwriters.
Section 7. Indemnification. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter,
as the case may be, within the meaning of Section 15 of the 1933 Act, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
including fees and disbursements of counsel chosen by you, reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
14
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto); and provided, further, however, that
the foregoing indemnification with respect to any preliminary prospectus
supplement shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased any of the Shares if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Shares to such person and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act and of Section 20 of the 1934 Act, from and
against any and all loss, liability, claim, damage and expense described in the
indemnity agreement in Section 7(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of Underwriters,
such firm shall be designated in writing by. In the case of any such separate
firm for the Company, and such
15
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
Section 8. Contribution. If the indemnification provided for in
Sections 7(a) and 7(b) is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, then each
indemnifying party under such paragraph (it being understood that an
indemnifying party is one who would have had an obligation to provide
indemnification pursuant to Section 7 had such indemnification been
enforceable), in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect (A) the relative benefits received by the Underwriters,
and (B) that the Company is responsible for the balance 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 allocation referred to
in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Shares. The relative fault of the Company on the one hand and of the
Underwriters on the other hand 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 Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 8 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any
16
such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
Section 9. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and other
statements of the Company or its officers set forth in or made pursuant to this
Agreement will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Underwriter or any person
who controls the Company or any Underwriter within the meaning of Section 15 of
the 1933 Act and will survive delivery of and payment for the Shares.
Section 10. Termination of Agreement.
(a) You may terminate this Agreement, by notice to the Company, at any
time at or prior to the Closing Time (i) if there has been, since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the financial condition, earnings, business affairs
or business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable to market the
Shares or enforce contracts for the sale of the Shares or (iii) if trading in
any securities of the Company has been suspended by the Commission, the New York
Stock Exchange or any other exchange or quotation system on which securities of
the Company are listed, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange or in the over-the-counter market has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
by order of the Commission or any other governmental authority or (iv) if a
banking moratorium has been declared by either federal, New Jersey or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4 herein. Notwithstanding any such
termination, the provisions of Sections 7, 8 and 9 shall remain in effect.
Section 11. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Firm Shares
that it or they are obligated to purchase (the "Defaulted Shares"), you shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Shares in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, you have not completed
such arrangements within such 24-hour period, then:
17
(a) if the number of Defaulted Shares does not exceed 10% of the total
number of the Shares to be purchased pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligation
proportions (as defined below) bear to the underwriting obligation proportions
of all non-defaulting Underwriters, or
(b) if the number of Defaulted Shares exceeds 10% of the total number
of the Shares to be purchased pursuant to this Agreement, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 11 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either you or the Company shall have the right to postpone
the Closing Time or the Delivery Date, as applicable for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 11. As used herein, the term "underwriting obligation proportion" means
the proportion that the number of Firm Shares set forth opposite the name of
each Underwriter in Schedule I hereto bears to the total number of Firm Shares.
Section 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered,
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed as set forth in Schedule I. Notices to the
Company shall be directed to it at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000,
attention of Xxxxx Xxxxxxx, Esq., General Counsel.
Section 13. Parties. This Agreement is made solely for the benefit of
the several Underwriters, the Company and, to the extent expressed, any person
who controls the Company or any of the Underwriters within the meaning of
Section 15 of the 1933 Act, and the directors of the Company, its officers who
have signed the Registration Statement, and their respective executors,
administrators, successors and assigns and, subject to the provisions of Section
11, 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, as
such purchaser, from any Underwriter of the Shares. If there are two or more
Underwriters, all of their obligations hereunder are several and not joint.
Section 14. Governing Law and Time. This Agreement shall be governed by
the laws of the State of New York. Specified times of the day refer to New York
City time.
Section 15. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
18
Section 16. Headings. All headings of the sections and subparts thereof
of this Agreement are for convenience of reference only and shall not be deemed
a part of this Agreement.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
CENDANT CORPORATION
By:
---------------------------
Name:
Title:
Confirmed and Accepted, as of the date first above written:
[UNDERWRITERS]
By:
By:
---------------------------
Name:
Title:
20
SCHEDULE I
to Underwriting
Agreement dated
[ ]
-------------
CENDANT CORPORATION
CD Common Stock
Number of Initial Shares
Underwriter to be Purchased
Total......................................... ______________
Scheduled I-1
SCHEDULE II
to Underwriting
Agreement
dated [ ]
--------
CENDANT CORPORATION
CD Common Stock
Number of Firm Shares to be issued: [________]
Number of Additional Shares to be issued: [________]
Initial public offering price: $______
Purchase price: $______
Closing date, time and location:
Delayed delivery contracts:
Listing requirement:
Other terms and conditions:
SCHEDULE III
to Underwriting Agreement
dated [ ]
---------------
CENDANT CORPORATION
CD Common Stock
DELAYED DELIVERY CONTRACT
CENDANT CORPORATION
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The undersigned hereby agrees to purchase from Cendant Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned on _______, 20__ (the "Delivery Date"), _______________________ [ ]
Shares of the Company's CD Common Stock, par value $.01 per share (the
"Shares"), offered by the Company's Prospectus dated _______, 2001, as
supplemented by its Prospectus Supplement dated _______, 20__, receipt of which
is hereby acknowledged, at a purchase price of $____ per share, and on the
further terms and conditions set forth in this contract.
Payment for the Shares shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds, at the
offices of _____________, _____________, New York, New York, at A.M., New York
City time, on the Delivery Date (or in such other funds and/or at such other
place as the Company and the undersigned may agree upon in writing), upon
delivery of the Shares to the undersigned, in such authorized denominations and
registered in such names as the undersigned may request in writing addressed to
the Company not less than five business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Shares on the Delivery Date shall be subject only to the conditions that
(1) the purchase of the Shares by the undersigned shall not, on the Delivery
Date, be prohibited under the laws of any jurisdiction to which the undersigned
is subject and that govern such investment, and (2) the Company, on or before
________, 20__, shall have sold to the Underwriters of the Shares (the
"Underwriters") such number of Shares as is to be sold to them pursuant to the
Underwriting Agreement dated the date hereof between the Company and the
Underwriters. The obligation of the undersigned to take delivery of and make
payment for the Shares shall not be affected by the failure of any Underwriter
or other purchaser to take delivery of and make payment for the Shares pursuant
to other contracts similar to this contract.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned, at its address set forth below, a
notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that (1) its investment in the Shares is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and that govern such investment, (2) all necessary corporate action for
the due execution and delivery of this contract and the payment for and purchase
of the Shares has been taken by it and no further authorization or approval of
any governmental or other regulatory authority is required for such execution,
delivery, payment or purchase and (3) upon the acceptance by the Company and the
mailing or delivery of a copy as provided below, this contract will constitute a
valid and binding agreement of the undersigned in accordance with its terms.
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 the Company will not accept Delayed Delivery
Contracts for a number of Shares, the aggregate proceeds of which are in excess
of $______ and that the acceptance of any Delayed Delivery Contract 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 requested that the Company sign the form of acceptance on a copy hereof
and mail or deliver a signed copy to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This contract shall be governed by the laws of the State of New York.
Yours very truly,
(Name of Purchaser)
By:
--------------------------
Title:
-----------------------------
-----------------------------
(Address)
Accepted as of the date first above written:
CENDANT CORPORATION
By:
-----------------------------
Name:
Title:
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (including area code)
---- ---------------------
