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EXHIBIT 2.h
AMERITRADE AUTOMATIC COMMON
EXCHANGE SECURITY TRUST
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$ ______ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES
(SUBJECT TO EXCHANGE INTO CLASS A COMMON STOCK (PAR
VALUE $.01 PER SHARE) OF AMERITRADE HOLDING CORPORATION)
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UNDERWRITING AGREEMENT
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July __ , 1999
Xxxxxxx, Xxxxx & Co.,
Credit Suisse First Boston Corporation,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Ameritrade Automatic Common Exchange Security Trust, a trust duly
created under the laws of the State of New York (such trust and the trustees
thereof acting in their capacities as such being referred to herein as the
"Trust"), proposes, subject to the terms and conditions stated herein, to issue
and sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 4,000,000 shares of the $_____ Automatic Common Exchange Securities
of the Trust specified above (the "Firm Securities") and, at the election of the
Underwriters, up to an aggregate of 600,000 additional shares of the $_____
Automatic Common Exchange Securities (the "Optional Securities") (the Firm
Securities and the Optional Securities which the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "Securities").
The $____ Automatic Common Exchange Securities of the Trust to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
called the "Automatic Common Exchange Securities". Each Automatic Common
Exchange Security will be exchanged for one or fewer shares of Class A Common
Stock, par value $.01 per share ("Stock"), of Ameritrade Holding Corporation, a
Delaware corporation (the "Company"), or, with respect only to the Extendible
Contract (as defined herein) for cash pursuant to the Cash Settlement
Alternative (as such term is defined in the Trust Prospectus (as defined in
Section 1(c)(i)
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hereof)) on July __ , 2002 (the "Exchange Date") to be delivered pursuant to
forward purchase contracts (the "Contracts"), dated July __ . , 1999, among the
Trust and certain stockholders of the Company identified in Schedule II hereto
(each of which is referred to as "Seller"). In lieu of delivery of shares of
Stock, the Contract between the Trust and J. Xxx Xxxxxxxx, individually, (the
"Extendible Contract") (which Contract will become effective only if the
Underwriters exercise their option to acquire the Optional Securities) provides
that J. Xxx Xxxxxxxx may elect (a) to pay cash or deliver other securities on
the Exchange Date for each share of Stock then deliverable and (b) to extend the
Exchange Date to a date not later than October __ , 2002, in each case subject
to the terms and conditions of the Extendible Contract. The Trust has entered
into a Contract with each Seller obligating that Seller (subject to certain
exceptions in the case only of the Extendible Contract) to deliver to the Trust
on the Exchange Date a number of shares of Stock equal to the product of the
Exchange Rate (as such term is defined in the Trust Prospectus) times the
initial number of shares of Stock subject to such Contract. Each Seller's
obligations under the Contracts will be secured by a pledge of collateral
pursuant to the terms of a collateral agreement, dated July __, 1999, among such
Seller, The Chase Manhattan Bank ("Chase"), as collateral agent (in such
capacity, the "Collateral Agent"), and the Trust (the "Collateral Agreements").
It is understood and agreed to by all parties that the Company, J. Xxx
Xxxxxxxx and certain other stockholders of the Company (together with the
Sellers, the "Selling Stockholders") are concurrently entering into: (i) an
agreement (the "U.S. Underwriting Agreement") providing for the sale by the
Company and the Selling Stockholders of up to a total of 8,000,000 shares of
Stock and, at the election of the underwriters who are parties to the U.S.
Underwriting Agreement, up to 1,200,000 additional shares of Stock, through
arrangements with certain underwriters in the United States, for whom Xxxxxxx,
Sachs & Co., Credit Suisse First Boston Corporation, Deutsche Bank Securities
Inc., Xxxxxxx Xxxxx & Associates, Inc., US Bancorp Xxxxx Xxxxxxx Inc. and Xxxxxx
Brothers Inc. are acting as representatives; and (ii) an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Stockholders of up to a total of 2,000,000 shares of Stock, and,
at the election of the underwriters who are parties to the International
Underwriting Agreement, up to 300,000 additional shares of Stock, through
arrangements with certain underwriters outside the United States for which
Xxxxxxx Sachs International, Credit Suisse First Boston (Europe) Limited,
Xxxxxxx Xxxxx & Associates, Inc., Deutsche Bank AG London, U.S. Bancorp Xxxxx
Xxxxxxx Inc. and Xxxxxx Brothers International (Europe) are acting as Lead
Managers. (The U.S. Underwriting Agreement and the International Underwriting
Agreement are collectively called the "Company Underwriting Agreements").
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1. (a) The Company hereby represents and warrants to, and
agrees with, each of the Underwriters, the Trust and the Sellers that:
(i) A registration statement on Form S-3 (File No.
333-81559) (the "Initial Company Registration Statement") in respect of
the shares of Stock deliverable pursuant to the Contracts has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Company Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Company Rule
462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Company Registration Statement or document incorporated by reference
therein has heretofore been filed with the Commission; and no stop
order suspending the effectiveness of the Initial Company Registration
Statement, any post-effective amendment thereto or the Company Rule
462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus in respect of the shares of
stock deliverable pursuant to the Contracts and included in the Initial
Company Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the
Act is hereinafter called a "Company Preliminary Prospectus"; the
various parts of the Initial Company Registration Statement and the
Company Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including (A) the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the Initial Company
Registration Statement at the time it was declared effective or such
part of the Company Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective and (B) the documents incorporated by
reference in the prospectus contained in the Initial Company
Registration Statement at the time such part of the Initial Company
Registration Statement became effective each as amended at the time
such part of the Initial Company Registration Statement became
effective or such part of the Company Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Company Registration Statement";
such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the
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"Company Prospectus"; and the Trust Registration Statement (as defined
in Section 1(c)(i) hereof) and the Company Registration Statement are
hereinafter collectively called the "Registration Statements" and the
Trust Prospectus and the Company Prospectus are hereinafter
collectively called the "Prospectuses"; and any reference herein to any
Company Preliminary Prospectus or the Company Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of such Company Preliminary Prospectus or Company Prospectus, as the
case may be; any reference to any amendment or supplement to any
Company Preliminary Prospectus or the Company Prospectus shall also be
deemed to refer to the international version thereof and include any
documents filed after the date of such Company Preliminary Prospectus
or Company Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Company Preliminary Prospectus or Company
Prospectus, as the case may be; and any reference to any amendment to
the Company Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Company Registration Statement that is incorporated by
reference in the Company Registration Statement;
(ii) No order preventing or suspending the use of any
Company Preliminary Prospectus has been issued by the Commission, and
each Company Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Xxxxxxx, Sachs & Co. or
Xxxxxxx Xxxxx International expressly for use therein or by a Selling
Stockholder or Seller expressly for use in the preparation of the
answers therein to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the
Company Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required
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to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Company Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx,
Sachs & Co. or Xxxxxxx Xxxxx International expressly for use therein;
(iv) The Company Registration Statement conforms, and the
Company Prospectus and any further amendments or supplements to the
Company Registration Statement or the Company Prospectus will conform,
in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Company Registration
Statement and any amendment thereto, and as of the applicable filing
date as to the Company Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx,
Sachs & Co. expressly for use therein or by a Selling Stockholder or
Seller expressly for use in the preparation of the answers therein to
Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Company Prospectus any
material loss or material interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Company Prospectus; and, since the respective dates as of which
information is given in the Company Registration Statement and the
Company Prospectus, there has not been any change in the capital stock
(other than pursuant to any employee incentive or benefit plan in
existence as of the date of this agreement) or increase in excess of
$75 million in the
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long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Company Prospectus;
(vi) The Company and its subsidiaries own no real property
and have good and marketable title to all personal property owned by
them, free and clear of all liens, encumbrances and defects except such
as are described in the Company Prospectus or such as do not materially
affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company and its
subsidiaries;
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Company
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction, and no proceeding of which
the Company has knowledge has been instituted in any such jurisdiction,
revoking, limiting or curtailing or seeking to revoke, limit or curtail
such power and authority or qualification;
(viii) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Company Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued
and is fully paid
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and nonassessable; and, except as disclosed in the Company Prospectus,
the Company owns directly or indirectly 100% of the issued and
outstanding capital stock of each subsidiary free from liens,
encumbrances, equities or claims;
(ix) The Company has an authorized capitalization as set
forth in the Company Prospectus, and all of the issued shares of
capital stock of the Company (including the shares of Stock to be
pledged under Collateral Agreements) have been duly and validly
authorized and issued and are fully paid and non-assessable and conform
to the description of the Company's capital stock contained in the
Company Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Stock;
(x) The shares of Stock to be issued and sold by the
Company to the Underwriters under the Company Underwriting Agreements
have been duly and validly authorized and, when issued and delivered
against payment therefor as provided in the Company Underwriting
Agreements, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(xi) The compliance by the Company with all of the
provisions of this Agreement and the Company Underwriting Agreements
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is, or at the Time of Delivery will be, required for the
issue and sale of the shares of Stock or the consummation by the
Company of the transactions contemplated by this Agreement and the
Company Underwriting Agreements, except the registration under the Act
of the shares of Stock and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase and
distribution of the shares of Stock pursuant to the Contracts and the
Company Underwriting Agreements;
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(xii) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or other
constituent or organizational document or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other material agreement or instrument to which it
is a party or by which it or any of its properties may be bound;
(xiii) The financial statements included in the Company
Registration Statement and the Company Prospectus present fairly in all
material respects the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis; and the schedules (if any) included in the Company Registration
Statement present fairly in all material respects the information
required to be stated therein; the financial information set forth in
the Company Prospectus under "Summary Consolidated Financial and
Operating Data" and "Selected Consolidated Financial and Operating
Data" presents fairly in all material respects, on the basis stated in
the Company Registration Statement and the Company Prospectus, the
information set forth therein;
(xiv) The statements set forth in the Company Prospectus
under the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock and under the
caption "Underwriting", insofar as they purport to describe the
provisions of the laws and the Company Underwriting Agreements referred
to therein, are accurate, complete and fair;
(xv) The statements set forth in the international version
of the Company Prospectus under the caption "Certain United States Tax
Consequences to Non-U.S. Holders", insofar as such statements purport
to summarize certain United States federal income and estate tax
consequences of the ownership and dispensation of the Stock by certain
non-U.S. holders (as such term is defined in such Company Prospectus)
of the shares of Stock, provide a fair summary of such consequences
under current law;
(xvi) Other than as set forth in the Company Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the
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Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xvii) Except as disclosed in the Company Prospectus, there
are no contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the sale of the Stock;
(xviii) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Company Registration Statement or
in any securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(xix) The Stock has been accepted for quotation on the
National Association of Securities Dealers Automated Quotation National
Market System ("NASDAQ") under the symbol "AMTD";
(xx) The Company is not and, after giving effect to the
offering and sale of Stock under the Company Underwriting Agreements,
will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act" and, together with the Act, the "Acts");
(xxi) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(xxii) The Company has reviewed its operations and that of
its subsidiaries and is in the process of making inquiries of any third
parties with which the Company or any of its subsidiaries has a
material relationship to evaluate the extent to which the business or
operations of the Company or any of its subsidiaries will be affected
by the Year 2000 Problem. As a result of such review and inquiries to
which responses have been received, and
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except as described in the Company Prospectus, the Company does not
believe that the Year 2000 Problem will have a material adverse effect
on the general affairs, management, the consolidated financial
position, business prospects, stockholders' equity or results of
operations of the Company and its subsidiaries or result in any
material loss or material interference with the Company's business or
operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000;
(xxiii) Except as disclosed in the Company Prospectus, the
Company and its subsidiaries own or possess or are licensed to use the
patents, patent licenses, trademarks, trade names, service marks,
service names, copyrights and other intellectual property rights
(collectively, the "Intellectual Property") necessary to carry on their
business as presently conducted, to the best knowledge of the Company,
none of the technology employed by the Company or its subsidiaries has
been obtained or is being used by the Company or its subsidiaries in
violation of any contractual or fiduciary obligation binding on the
Company, its subsidiaries or any of their respective directors,
employees or consultants or otherwise in violation of the rights of any
person except for any such violations that, individually or in the
aggregate, do not or would not reasonably be expected to have a
material adverse effect on the general affairs, management,
consolidated financial position, business prospects, stockholders'
equity or results of operations of the Company and its subsidiaries;
except as disclosed in the Prospectus, neither the Company nor any of
its subsidiaries has received any notice of infringement or violation
of or conflict with (and knows of no such infringement or conflict
with) asserted rights of others with respect to any Intellectual
Property or any trade secrets, proprietary information, inventions,
know-how, processes and procedures owned, used by or licensed to the
Company or any such subsidiary which, individually or in the aggregate,
if the subject of any unfavorable decision, ruling or finding, would
reasonably be expected to have a material adverse effect on the general
affairs, management, consolidated financial position, business
prospects, stockholders' equity or results of operations of the Company
and its subsidiaries;
(xxiv) The Company has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which
might
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reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Stock;
(xxv) The Company and each of its subsidiaries maintains
reasonably adequate insurance;
(xxvi) There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale
or liens related to or entitling any person to purchase or otherwise to
acquire from the Company any shares of the capital stock of, or other
ownership interest in, the Company or any subsidiary thereof except as
otherwise disclosed in the Company Prospectus; and
(xxvii) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes shown as due
thereon, and there is no tax deficiency that has been, or to the
knowledge of the Company might reasonably be, asserted against the
Company or any of its properties or assets that would or could
reasonably be expected to have a material adverse effect on the general
affairs, management, the consolidated financial position, stockholders'
equity or results of operations of the Company or its subsidiaries,
other than any such taxes as are being contested in good faith and
properly reserved for in accordance with generally accepted accounting
principles.
(b) Each Seller represents and warrants to, and agrees
with, each of the Underwriters, the Company and the Trust that:
(i) To the extent applicable to such Seller, such Seller
has been duly created, is validly existing as a trust under the laws of
the jurisdiction of its organization and has the power and authority to
own and sell its property and to conduct its business;
(ii) The compliance by such Seller with all of the
applicable provisions of this Agreement and the Contract and the
Collateral Agreement to which such Seller is a party, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Seller is a party or by which such Seller is
bound or to which any of the property or assets of such Seller is
subject, nor will such action result in any violation of the provisions
of the constitutive documents of such Seller or any statute or any
order, rule or regulation of
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any court or governmental agency or body having jurisdiction over such
Seller or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or filing with
any court or governmental agency or body is required for the compliance
by such Seller with or the consummation by such Seller of the
transactions contemplated by this Agreement, the Contract to which such
Seller is a party or the Collateral Agreement to which such Seller is a
party, except such as may be required by the National Association of
Securities Dealers ("NASD") or the registration under the Act of the
Stock and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws or any laws of jurisdictions outside the United States in
connection with the purchase and distribution of the Stock by the Trust
pursuant to the Contract;
(iii) This Agreement has been duly authorized, executed and
delivered by such Seller; the Contract to which such Seller is a party
and the Collateral Agreement to which such Seller is a party have been
duly authorized, executed and delivered by such Seller and, assuming
due authorization, execution and delivery by the other parties thereto,
constitute valid and legally binding agreements of such Seller,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles and except as rights to indemnity and
contribution thereunder may be limited by state or federal securities
laws or the public policy underlying such laws;
(iv) Such Seller has, and immediately prior to each Time
of Delivery (as defined in Section 4(a) hereof) such Seller will have,
good and valid title to the shares of Stock to be pledged and assigned
by it under the Collateral Agreement to which such Seller is a party,
free and clear of all liens, encumbrances, or claims other than those
created pursuant to such Collateral Agreement; all consents, approvals,
authorizations and orders necessary for such Seller to pledge and
assign the shares of Stock to be pledged and assigned by such Seller
pursuant to such Collateral Agreement have been obtained; such Seller
has full right, power and authority to pledge and assign the shares of
Stock to be pledged and assigned by such Seller pursuant to such
Collateral Agreement; and upon delivery of such shares of Stock to the
Collateral Agent, as defined in the Collateral Agreement, for the
benefit of the Trust pursuant to such Collateral Agreement, the
Collateral Agent will obtain a first priority perfected security
interest in such shares of Stock, and upon delivery of such shares of
Stock by the Collateral Agent to the Trust pursuant to such Collateral
Agreement and payment therefor
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pursuant to the Contract, good and valid title to such shares of Stock,
free and clear of all liens, encumbrances, equities or claims, will
pass to the Trust;
(v) The representations and warranties of such Seller set
forth in Section 3 of the Collateral Agreement to which such Seller is
a party are true and correct on and as of the date hereof with the same
effect as though such representations and warranties had been set forth
in full in this Agreement;
(vi) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Trust Prospectus, such Seller will not offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder or in the
Underwriting Agreement, any Stock or any securities of the Company that
are substantially similar to the Stock, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than (A) pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement,
(B) gifts and pledges of securities where the donees or pledgees, as
applicable, expressly agree in writing to be bound by the terms of this
paragraph and (C) sales of up to an aggregate of __________ shares of
Stock by J. Xxx Xxxxxxxx to employees of the Company where the
employees expressly agree in writing to be bound by the terms of this
paragraph) without your prior written consent;
(vii) Such Seller has not taken, nor will such Seller take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities;
(viii) To the extent that any statements or omissions made
in the Registration Statements, any Preliminary Prospectus, the
Prospectuses or any amendment or supplement thereto are made in
reliance upon and in conformity with written information furnished to
the Company by such Seller expressly for use therein, (A) such
Preliminary Prospectus and the Registration Statements did, and the
Prospectuses and any further amendments or supplements to the
Registration Statements and the Prospectuses, when they become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Acts and
the rules and regulations of the Commission thereunder, (B) the
Registration Statements and any amendment or supplement thereto
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do not and will not, as of the applicable effective date, 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 and (C) the Prospectuses do not, and as amended
or supplemented will not, as of the applicable filing date, 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 were made, not
misleading; and
(ix) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated, such Seller agrees to deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(c) The Trust represents and warrants to, and agrees
with, each of the Underwriters, the Sellers and the Company that:
(i) A notification on Form N-8A (the "Notification") of
registration of the Trust as an investment company has been filed with
the Commission; a registration statement on Form N-2 (File No.
333-77547 and File No. 811- 09319) (the "Initial Trust Registration
Statement") in respect of the Securities has been filed with the
Commission; the Initial Trust Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, have been declared effective
by the Commission in such form; no other document with respect to the
Initial Trust Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Trust Registration Statement, or any post-effective amendment
thereto has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Trust Registration Statement or filed with the
Commission pursuant to Rule 497(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "Trust Preliminary
Prospectus"; the various parts of the Initial Trust Registration
Statement including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 497(h) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Trust Registration Statement at the time it was declared
effective, as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Trust Registration
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Statement"; and such final prospectus, in the form first filed pursuant
to Rule 497(h) under the Act, is hereinafter called the "Trust
Prospectus");
(ii) No order preventing or suspending the use of any
Trust Preliminary Prospectus has been issued by the Commission, and
each Trust Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Acts, and
the rules and regulations of the Commission thereunder, 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Trust by the Underwriters through Xxxxxxx, Sachs & Co. or by a
Seller expressly for use therein;
(iii) The Notification and the Trust Registration Statement
conform, and the Trust Prospectus and any further amendments or
supplements to the Notification, the Trust Registration Statement or
the Trust Prospectus will conform, in all material respects to the
requirements of the Acts and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Trust Registration Statement and any amendment
thereto and as of the applicable filing date as to the Trust Prospectus
and any amendment or supplement thereto, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Trust by the
Underwriters through Xxxxxxx, Xxxxx & Co. or by a Seller expressly for
use therein;
(iv) Since the respective dates as of which information is
given in the Trust Registration Statement and the Trust Prospectus,
there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, results of operations,
prospects, investment objectives, investment policies, or liabilities
of the Trust, otherwise than as set forth or contemplated in the Trust
Prospectus, and there have been no transactions entered into by the
Trust which are material to the Trust other than those in the ordinary
course of its business or as described in the Trust Prospectus;
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(v) The Trust has been duly created, is validly existing
as a trust under the laws of the State of New York, with power and
authority to own its properties and conduct its business as described
in the Trust Prospectus and to enter into and perform its obligations
under this Agreement and the Fundamental Agreements (as defined in
Section 1(c)(vii) hereof); the Trust has all necessary consents,
approvals, authorizations, orders, registrations or qualifications, of
and from, and has made all declarations and filings with, all courts
and governmental agencies and bodies, to own and use its assets and to
conduct its business in the manner described in the Trust Prospectus,
except to the extent that the failure to obtain or file the foregoing
would not have a material adverse effect on the Trust and except such
as may be required by the NASD or the registration under the Act of the
Securities and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters; the Trust has no subsidiaries;
(vi) The Trust is registered with the Commission as a
non-diversified, closed-end management investment company under the
Investment Company Act and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to
the knowledge of the Trust, threatened by the Commission; no person is
serving or acting as an officer or trustee of the Trust except in
accordance with the provisions of the Investment Company Act;
(vii) Each of the Contracts, the Collateral Agreements, the
Administration Agreement between Chase and the Trust (the
"Administration Agreement"), the Custodian Agreement between Chase and
the Trust (the "Custodian Agreement"), the Paying Agent Agreement
between ChaseMellon Shareholder Services, L.L.C. and the Trust (the
"Paying Agent Agreement"), the Fund Expense Agreement among the
Sellers, the Trust and Chase (the "Fund Expense Agreement") and the
Fund Indemnity Agreement among the Sellers, Chase and the Trust (the
"Fund Indemnity Agreement") (the Contracts, the Collateral Agreements,
the Administration Agreement, the Custodian Agreement, the Paying Agent
Agreement, the Fund Expense Agreement and the Fund Indemnity Agreement
are herein collectively called the "Fundamental Agreements") has been
duly authorized, executed and delivered by the Trust and, assuming due
authorization, execution and delivery by the other parties thereto,
constitutes a valid and legally binding agreement of the Trust,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
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(viii) The Amended and Restated Trust Agreement dated as of
July __, 1999 (the "Trust Agreement") and the Fundamental Agreements
comply with all applicable provisions of the Acts, and all approvals of
such agreements required under the Investment Company Act by the
holders of the Automatic Common Exchange Securities and the trustees
have been obtained and are in full force and effect;
(ix) All of the outstanding Automatic Common Exchange
Securities have been duly and validly authorized and issued and are
fully paid and non-assessable, and the form of certificates used to
evidence the Automatic Common Exchange Securities is in due and proper
form and complies with all provisions of applicable law; the Trust
Agreement and the Fundamental Agreements conform to the descriptions
thereof contained in the Trust Prospectus;
(x) The Securities have been duly authorized and, when
issued and delivered pursuant to this Agreement, will be validly
issued, fully paid and non-assessable; the Securities will conform to
the description thereof in the Trust Prospectus; no person has rights
to registration of any securities because of the filing of the Trust
Registration Statement;
(xi) The issue and sale of the Securities and the
compliance by the Trust with all of the provisions of the Securities,
this Agreement and each Fundamental Agreement and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, the Trust Agreement or
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Trust is a party or by which the
Trust is bound or to which any of the property or assets of the Trust
is subject, no will such action result in any violation of any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Trust of the transactions
contemplated by this Agreement or the Fundamental Agreements, except
such as may be required by the NASD or the registration under the Act
of the Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
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(xii) Assuming due authorization, execution and delivery by
the parties other than the Trust, the Fundamental Agreements are in
full force and effect and the Trust is not in default in the
performance or observance of any obligation, covenant or condition
thereunder and, to the knowledge of the Trust, no event has occurred
which with the passage of time or the giving of notice or both would
constitute a default thereunder; the Trust is not in default in the
performance or observance of any obligation, covenant or condition
contained in any other agreement or instrument to which it is a party
or by which it or any of its properties may be bound;
(xiii) The statements set forth in the Trust Prospectus
under the caption "Description of Securities", insofar as they purport
to constitute a summary of the terms of the Securities, under the
caption "Certain Federal Income Tax Considerations", and under the
caption "Underwriting", insofar as they purport to describe the
provisions of the laws and agreements referred to therein, are
accurate, complete and fair;
(xiv) Other than as set forth in the Trust Prospectus,
there are no legal or governmental proceedings pending to which the
Trust is a party or of which any property of the Trust is the subject
which, if determined adversely to the Trust, would individually or in
the aggregate have a material adverse effect on the current or future
financial position, or results of operations of the Trust; and, to the
best of the Trust's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xv) There are no material restrictions, limitations or
regulations with respect to the ability of the Trust to invest its
assets as described in the Trust Prospectus, other than as described
therein;
(xvi) The Securities have been accepted for quotation on
NASDAQ subject to notice of issuance; the Trust's Registration
Statement on Form 8-A under the Exchange Act is effective; and
(xvii) PricewaterhouseCoopers LLP, who have certified
certain financial statements and supporting schedules included in the
Trust Registration Statement, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
2. Subject to the terms and conditions herein set forth, (a) the
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at a
purchase price of $________ per Security, the number of Firm Securities set
forth opposite the name
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of such Underwriter in Schedule I hereto and (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional
Securities as provided below, the Trust agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at the same purchase price set forth in clause (a) of
this Section 2, that portion of the aggregate number of Optional Securities as
to which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional securities) determined by multiplying such number of
Optional Securities by a fraction, the numerator of which is the maximum
aggregate number of Optional Securities which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the maximum aggregate number of Optional
Securities that all of the Underwriters are entitled to purchase hereunder. The
agreements in this Section made by the Trust are for the benefit of and
enforceable by the Underwriters and the Sellers. The agreements in this Section
made by the Underwriters are for the benefit of and are enforceable by the
Sellers and the Trust.
The Trust hereby grants to the Underwriters the right to purchase at
their election up to 600,000 Optional Securities, at the purchase price set
forth in clause (a) of the first paragraph of this Section 2, for the sole
purpose of covering overallotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised only by written notice
from you to the Trust (with copies to Xxxxx, Xxxxx & Xxxxx), given within a
period of 30 calendar days after the date of this Agreement, setting forth the
aggregate principal amount of Optional Securities to be purchased and the date
on which such Optional Securities are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4(a)
hereof) or, unless you and the Trust otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust as specified in the Contracts, the Sellers at each Time of
Delivery will pay to Xxxxxxx, Sachs & Co., for the accounts of the several
Underwriters, an amount equal to $________ per Security for the Securities to be
delivered at such Time of Delivery. Alternatively, as a matter of convenience,
Xxxxxxx, Xxxxx & Co. may deduct such amount from the purchase price of the
Securities, and in such event the Sellers shall be deemed to have paid the same.
3. Upon the authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Trust Prospectus.
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4. (a) The Securities to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as Xxxxxxx, Sachs & Co. may request upon at least
forty-eight hours' prior notice to the Trust, shall be delivered by or on behalf
of the Trust to Xxxxxxx, Xxxxx & Co., for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer or certified or official bank check or checks, payable
to the order of the Trust in Federal (same day) funds. The Trust will cause the
certificates representing the Securities to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Designated Office") . The time and date of such delivery and
payment shall be, with respect to the Firm Securities, 9:30 a.m., New York City
time, on July __, 1999 or such other time and date as Xxxxxxx, Xxxxx & Co. and
the Trust may agree upon in writing, and, with respect to the Optional
Securities, 9:30 a.m., New York City time, on the date specified by Xxxxxxx,
Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of the
Underwriters' election to purchase such Optional Securities, or such other time
and date as Xxxxxxx, Sachs & Co. and the Trust may agree upon in writing. Such
time and date for delivery of the Firm Securities is herein called the "First
Time of Delivery", such time and date for delivery of the Optional Securities,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of
Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross-receipt for the Securities and any additional documents
requested by the Underwriters pursuant to Section 7(m) hereof, will be delivered
at the offices of Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (the "Closing Location"), and the Securities will be delivered at
the Designated Office, all at such Time of Delivery. A meeting will be held at
the Closing Location at 4:30 p.m., New York City time, on the New York Business
Day next preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York City are
generally authorized or obligated by law or executive order to close.
5. (a) The Trust agrees with each of the Underwriters:
(i) To prepare the Trust Prospectus in a form approved by
you and to file such Trust Prospectus pursuant to Rule 497(h) under the
Act not later than the Commission's close of business on the second
business day
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following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Trust Registration Statement or Trust Prospectus prior to the last Time
of Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Trust Registration
Statement has been filed or becomes effective or any supplement to the
Trust Prospectus or any amended prospectus has been filed and to
furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Trust with the Commission pursuant to the Acts and the Exchange Act
subsequent to the date of the Trust Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Trust Preliminary
Prospectus or Prospectus or any order pursuant to Section 8(e) of the
Investment Company Act, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Trust Registration Statement or Trust Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Trust Preliminary
Prospectus or Prospectus or suspending any such qualification or order
pursuant to Section 8(e) of the Investment Company Act, promptly to use
its reasonable best efforts to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions in the United States as
you may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Trust shall not
be required to qualify as a foreign trust or association or to file a
general consent to service of process or subject itself to taxation in
any jurisdiction;
(iii) Prior to 12:00 P.M. (noon), New York City time, on
the New York Business Day next succeeding the date of this Agreement
and from time to time, at the expense of the Company, to furnish the
Underwriters with copies of the Trust Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the
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Trust Prospectus in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a
result of which the Trust Prospectus as then amended or supplemented
would include an 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 when such
Trust Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement
the Trust Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Trust Prospectus or
a supplement to the Trust Prospectus which will correct such statement
or omission or effect such compliance; and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Securities at any time nine months or more after the time of issue of
the Trust Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies
as you may request of an amended or supplemented Trust Prospectus
complying with Section 10(a)(3) of the Act;
(iv) To make generally available to the Trust's
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Trust Registration
Statement an earnings statement (as defined in Rule 158(c) under the
Act) of the Trust (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Trust, Rule 158);
(v) To use the net proceeds received by it from the sale
of the Securities pursuant to this Agreement in the manner specified in
the Trust Prospectus under the caption "Use of Proceeds"; and
(vi) To use its best efforts to have the Securities
accepted for quotation on NASDAQ, subject to notice of issuance, and to
maintain acceptance for quotation of the Securities on NASDAQ.
(b) The Company agrees with each of the Underwriters:
(i) To prepare the Company Prospectus in a form approved
by you and to file the Company Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under
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the Act; to make no further amendment or any supplement to the Company
Registration Statement or Company Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Company Registration
Statement has been filed or becomes effective or any supplement to the
Company Prospectus or any amended Company Prospectus has been filed and
to furnish you with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Company
Prospectus and for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities; to advise
you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Company Preliminary Prospectus or Prospectus, of the
suspension of the qualification of the shares of Stock to be delivered
pursuant to the Contracts for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Company Registration Statement or Company Prospectus or for
additional information; and, in the event of the issuance of any stop
order or any order preventing or suspending the use of any Company
Preliminary Prospectus or Prospectus or suspending any such
qualification, to promptly use its reasonable best efforts to obtain
the withdrawal of such order;
(ii) If the Company elects to rely upon Rule 462(b), to
file a Company Rule 462(b) Registration Statement with the Commission
in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement, and at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act;
(iii) Promptly from time to time to take such action as you
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions in the United States as
you may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process or to subject itself to taxation in any
jurisdiction;
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(iv) Prior to 12:00 P.M. (noon) New York City time, on the
New York Business Day next succeeding the date of this Agreement and
from time to time, at the expense of the Company, to furnish the
Underwriters with copies of the Company Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Company Prospectus in connection
with the offering or sale of the Securities and if at such time any
events shall have occurred as a result of which the Company Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made when such Company Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Company Prospectus or to
file under the Exchange Act any document incorporated by reference in
the Company Prospectus in order to comply with the Act or the Exchange
Act, to notify you and upon your request to file such document and to
prepare and, at the expense of the Company, furnish, without charge to
each Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Company
Prospectus or a supplement to the Company Prospectus which will correct
such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Securities at any time nine months or more after
the time of issue of the Company Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or
supplemented Company Prospectus complying with Section 10(a)(3) of the
Act;
(v) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement an earnings
statement (as defined in Rule 158(c) under the Act) of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(vi) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectuses, not to offer, sell, contract to sell or otherwise dispose
of, except as provided in the Company Underwriting Agreements, any
securities of the Company that are substantially similar to the Stock,
including but not limited to any securities that are convertible into
or exchangeable for, or that
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represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing
on, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without your
prior written consent;
(vii) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants and prepared in conformity with generally accepted
accounting principles in the U.S. ("GAAP")) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
prepared in accordance with GAAP, to make available to its stockholders
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(viii) During a period of three years from the effective
date of the Registration Statement, to furnish to you copies of all
reports or other communications (financial or other) furnished to
stockholders, and to deliver to you as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any securities exchange on which any class of
securities of the Company is listed;
(ix) To use the net proceeds received by it from the sale
of the Stock pursuant to the Company International Underwriting
Agreements in the manner specified in the Company Prospectus under the
caption "Use of Proceeds";
(x) To use its reasonable best efforts to obtain and
deliver to the Underwriters executed copies of lock-up agreements from
each of the stockholders of the Company set forth in the Company
Underwriting Agreements in form and substance satisfactory to the
Underwriters; and
(xi) To use its best efforts to maintain the quotation of
the Stock on NASDAQ.
6. Except as otherwise disclosed in the Prospectuses, the Trust,
the Company and the Sellers covenant and agree with the several Underwriters
that (a) the Company and the Sellers will pay or cause to be paid (i) the fees,
disbursements and expenses of the Company's outside counsel and the Company's
outside accountants in connection with the registration of the Securities under
the Act and all other expenses in connection with the preparation, printing and
filing of
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the Notification, the Trust Registration Statement, any Trust Preliminary
Prospectus and the Trust Prospectus and amendments and supplements thereto and
the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among Underwriters, this
Agreement and Blue Sky Memorandum and the closing documents (including any
compilations thereof); (iii) all expenses in connection with the qualification
of the Securities for offering and sale under state securities laws as provided
in Section 5(b)(iii) hereof, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the NASD of the terms of the sale of the
Securities; (v) all fees and expenses in connection with the preparation and
filing of a registration statement under the Exchange Act relating to the
Securities and all fees and expenses in connection with having the Securities
accepted for quotation on NASDAQ or other national or regional exchange; (vi)
the cost of preparing certificates representing the Securities; (vii) the cost
and charges of any transfer agent or registrar for the Securities; (viii) the
cost of preparing Stock certificates; (ix) the cost and charges of any transfer
agent or registrar for the Stock; (x) the fees and expenses of the
Attorneys-in-Fact and the Custodian, if any; (xi) all fees, expenses and costs
in connection with the marketing of the Securities; (xii) all costs and expenses
incident to the performance of all obligations hereunder which are not otherwise
specifically provided for in this Section, including (A) any fees and expenses
of counsel for the Sellers and (B) all expenses and taxes incident to the sale
and delivery of the shares of Stock to be sold or pledged by the Sellers; (xiii)
all other costs and expenses incident to the performance by the Trust, the
Company and the Sellers of their respective obligations hereunder which are not
otherwise specifically provided for in this Section; and (b) Xxxxxxx, Xxxxx &
Co. will pay or cause to be paid all fees, disbursements and expenses of the
Trust's counsel and the Trust's accountants in connection with the registration
of the Securities under the Acts. In connection with clause (a)(xii)(B) of the
preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay New York State stock
transfer tax, and each Seller agrees to reimburse Xxxxxxx, Xxxxx & Co. for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the
Securities to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Trust, the Company and such Seller herein are, at and as of
such Time of Delivery, true
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and correct, the condition that the Trust, the Company and such Seller shall
have performed all of their respective obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectuses shall have been filed with the
Commission pursuant to Rule 424(b) or Rule 497(h), as applicable, within the
applicable time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Sections 5(a)(i) and 5(b)(i) hereof; if the
Company has elected to rely upon Rule 462 (b), the Company Rule 462 (b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statements or any part thereof, and no order
pursuant to Section 8(e) of the Investment Company Act, shall have been issued
and no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) You shall have received from Xxxxxxxx & Xxxxxxxx such
written opinion or opinions, dated such Time of Delivery, in form and substance
satisfactory to you, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxxxx & Xxxxxxxx, counsel for the Trust, shall
have furnished to you their written opinion or opinions, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Trust (x) has been duly formed and is validly
existing as a trust under the laws of the State of New York and (y) is
registered with the Commission under the Investment Company Act as a
non-diversified, closed-end management investment company;
(ii) The Securities have been duly authorized and validly
issued and are fully paid and non-assessable and are entitled to the
benefits provided by the Trust Agreement;
(iii) The Securities will be exchanged for shares of Stock
in accordance with the terms of the Trust Agreement and the Contracts
(unless a Reorganization Event (as such term is defined in the
Contracts) occurs or J. Xxx Xxxxxxxx elects the Cash Settlement
Alternative under the Extendible Contract), subject to bankruptcy,
insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
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(iv) All regulatory consents, authorizations, approvals
and filings required to be obtained or made by the Trust under the
Federal laws of the United States and the laws of the State of New York
for the issuance, sale and delivery of the Securities by the Trust to
you have been obtained or made;
(v) This Agreement has been duly authorized, executed and
delivered by the Trust;
(vi) Each Fundamental Agreement has been duly authorized,
executed and delivered by the Trust and, assuming due authorization,
execution and delivery by the other parties thereto, constitutes a
valid and legally binding agreement of the Trust, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(vii) The statements in the Trust Prospectus under the
caption "Certain Federal Income Tax Considerations", to the extent that
such statements constitute summaries of the legal matters referred to
therein, fairly represent their opinion as to such matters;
(viii) On the basis of information which was reviewed in the
course of the performance of the services referred to in their opinion
considered in the light of their understanding of the applicable law
and the experience they have gained through their practice under the
Acts, such counsel are of the opinion that the Trust Registration
Statement, as of its effective date, and the Trust Prospectus, as of
the date of the Trust Prospectus, appeared on their face to be
appropriately responsive in all material respects to the requirements
of the Acts and the applicable rules and regulations of the Commission
thereunder; and that nothing that came to their attention in the course
of such review has caused them to believe that the Trust Registration
Statement, as of its effective date, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Trust Prospectus, as of the date of the Trust
Prospectus, contained any untrue statement of a material fact or
omitted 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; also, nothing that has come to such
counsel's attention in the course of certain procedures (as described
in such opinion) has caused such counsel to believe that the Trust
Prospectus, as of the date and time of delivery of such opinion,
contained any untrue statement of a material fact or omitted to state
any
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material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that such opinion may state that the limitations
inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are
such, however, that such counsel do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Trust Registration Statement or the Trust Prospectus except for
those made under the captions "Underwriting", "Investment Objective and
Policies", and "Description of Securities" in the Trust Prospectus
insofar as they relate to provisions of documents therein described,
and such counsel need not express any opinion or belief as to the
financial statements or other financial data; and provided further that
such counsel may state that they have not participated in the
preparation of the Company Registration Statement or the Company
Prospectus, and need not express any opinion or belief with respect
thereto or with respect to information relating to the Company
contained in the Trust Prospectus under the captions "Prospectus
Summary--The Company" and "Investment Objectives and Policies--The
Company and the Class A Common Stock."
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the laws of the
State of New York and the Federal laws of the United States.
(d) Xxxxx, Xxxxx & Xxxxx, counsel for the Company, shall
have furnished to you their written opinion, dated such Time of Delivery, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Company Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Company Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued, and are fully paid and nonassessable and conform in all
material respects to the description of the Company's capital stock
contained in the Company Prospectus; the stockholders of the Company
have no preemptive rights with respect to the Stock; and the
certificates for the Stock comply with the requirements of the Delaware
General Corporation Law;
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(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions and certificates);
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the
issued shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable,
and, except as disclosed in the Company Registration Statement, the
Company owns directly or indirectly 100% of the outstanding capital
stock of each subsidiary, free and clear, to such counsel's knowledge,
of all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions
of local counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions and certificates);
(v) To such counsel's knowledge and other than as set
forth in the Company Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate, reasonably be expected to have a material adverse effect on
the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and to such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of
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the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject and which is listed on Exhibit A attached to
such opinion, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute, order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties
(provided that such counsel need express no opinion regarding foreign
or state securities or Blue Sky laws);
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Acts of the Securities and the Stock and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities and the
Stock (as to which such counsel need express no opinion);
(ix) The statements set forth in the Company Prospectus
under the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock, and under
the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and Company Underwriting Agreements, referred to
therein, are accurate and complete in all material respects;
(x) The Company is not an "investment company" as such
term is defined in the Investment Company Act;
(xi) The documents incorporated by reference in the
Company Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, each complied as to form in all
material respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents became effective or were so filed, as
the case may be, contained, in the case of a registration
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statement which became effective under the Act, an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed under
the Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of [Kutack Rock], provided that such counsel shall state
that they believe that both you and they are justified in relying upon
such opinions); and
(xii) The Company Registration Statement and the Company
Prospectus and any further amendments and supplements thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Company
Registration Statement or the Company Prospectus, except for those
referred to in the opinion in subsection (ix) of this Section 7(d),
they have no reason to believe that, as of its effective date, the
Company Registration Statement or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein and other financial
information therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Company
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein and other financial
information therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that,
as of such Time of Delivery, either the Company Prospectus or any
further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein and other financial information therein, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any contracts or
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other documents of a character required to be filed as an exhibit to
the Company Registration Statement or required to be incorporated by
reference into the Company Prospectus or required to be described in
the Company Registration Statement or the Company Prospectus which are
not filed or incorporated by reference or described as required.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than as to the laws
of the State of New York, the General Corporation Law of the State of Delaware
and the Federal laws of the United States;
(e) [ ] shall have furnished to you their written
opinion with respect to each Seller, dated such Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect that:
(i) To the extent applicable to such Seller, such Seller
validly exists as a trust under, and is governed by, the laws of the
State of New York; and the trustee of such Seller has the requisite
power and authority, on behalf of such Seller, to enter into this
Agreement and the Contract and Collateral Agreement to which such
Seller is a party, and to consummate the transactions contemplated
hereby and thereby (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of Xxxxxx Xxxxxx & Xxxxx,
provided that such counsel shall state that they believe that both you
and they are justified in relying upon such opinions);
(ii) This Agreement has been duly executed and delivered
by or on behalf of each Seller; the Contracts and the Collateral
Agreements have been duly executed and delivered by or on behalf of
each Seller and, assuming due authorization, execution and delivery by
the other parties thereto, each constitutes a valid and legally binding
agreement of the Seller party thereto, enforceable against such Seller
in accordance with its terms, subject to 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 the compliance by each Seller with all of the provisions
of this Agreement, the Contract and the Collateral Agreement to which
such Seller is a party and the consummation of the transactions herein
and therein contemplated will not breach or result in a default under
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Seller is a party or by which
such Seller is bound or to which any of the property or assets of such
Seller are subject and which is listed in Exhibit A to such opinion,
nor will such action violate any Federal or New York statute or any
rule or regulation issued pursuant to any Federal or New York statute
or any order known to such counsel issued pursuant to any Federal
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or New York statute by any court or governmental agency or body having
jurisdiction over such Seller or any of its properties;
(iii) No authorization of the United States or the State of
New York is required for the compliance by each Seller with all of the
provisions of this Agreement and the Contract and the Collateral
Agreement to which such Seller is a party, except for the registration
of the Securities and the Stock under the Acts and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities and the Stock (as to which
such counsel need express no opinion);
(iv) Assuming due authorization, execution and delivery
thereof by the Trust and the Collateral Agent, each Collateral
Agreement, together with the delivery of (x) the certificates in
registered form representing the Stock pledged thereunder by the Seller
party thereto and (y) undated stock powers with respect thereto duly
endorsed in blank, to the Collateral Agent for the benefit of the Trust
in the State of New York creates in favor of the Collateral Agent for
the benefit of the Trust a perfected security interest in such Stock
under the Uniform Commercial Code as in effect in the State of New York
(the "New York UCC"); upon such delivery, at the First Time of
Delivery, assuming that (A) the Collateral Agent and the Trust will
acquire the security interest in such shares in good faith and without
notice of any adverse claim (within the meaning of the New York UCC)
and (B) the Seller party thereto has rights in the shares of Stock
subject to the Collateral Agreement, the Collateral Agent will acquire
such security interest in such shares of Stock for the benefit of the
Trust free of any adverse claims (within the meaning of the New York
UCC); and
(v) Upon payment for and delivery of certificates
representing the shares of Stock together with undated stock powers
with respect thereto duly endorsed in blank in accordance with the
Contract and Collateral Agreements, assuming due authorization,
execution and delivery thereof by the Trust and, in the case of the
Collateral Agreements, the Collateral Agent, and assuming that (A) each
Seller continues to be the sole registered owners of the shares of
Stock to be sold by it, (B) the certificates representing the shares to
be sold do not contain any notation of liens or restrictions and (C)
the purchasers of Securities will acquire such shares in good faith and
without notice of any adverse claims (within the meaning of the New
York UCC), the purchasers will acquire all of the rights of the Sellers
in the shares of Stock to be sold by them and will also acquire their
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interest in such shares free of any adverse claims (within the meaning
of the New York UCC);
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than as to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal laws of the United States;
(f) On the date of the Trust Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Trust Registration Statement filed
subsequent to the date of this Agreement and also at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you to the effect set forth in Annex I hereto;
(g) (i) Since the respective dates as of which information is
given in the Trust Registration Statement and the Trust Prospectus, there shall
not have been any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, results of
operations, prospects, investment objectives, investment policies or liabilities
of the Trust, otherwise than as set forth or contemplated in the Trust
Prospectus, (ii) neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Company Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Company Prospectus, and (iii) since the
respective dates as of which information is given in the Company Prospectus
there shall not have been any change in the capital stock, net current assets,
stockholders' equity or long-term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Company Prospectus, the effect of
which, in any such case described in clause (i) , (ii) or (iii), is in the
judgment of the Underwriters so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities being issued at such Time of Delivery on the terms and in the manner
contemplated in the Trust Prospectus;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on NASDAQ; (ii) a suspension or material limitation in
trading in the Company's
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securities on the NASDAQ; (iii) a general moratorium on commercial banking
activities in New York declared by the relevant authorities; (iv) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities being issued at such Time of Delivery on the terms and in the
manner contemplated in the Trust Prospectus or (v) the occurrence of any
material adverse change in the existing financial, political or economic
conditions in the United States or elsewhere which, in the judgment of the
Underwriters, would materially and adversely affect the financial markets or the
market for the Securities and other equity securities;
(i) The Securities shall have been duly listed, subject to notice
of issuance, on NASDAQ;
(j) Each Fundamental Agreement shall have been executed and
delivered by all parties thereto and each Seller shall have delivered to the
Collateral Agent the number of shares of Stock required by the Collateral
Agreement to which such Seller is a party to be initially pledged thereunder in
accordance with the requirements of the Collateral Agreement;
(k) The Trust and the Company shall have complied with the
provisions of Sections 5(a)(iii) and 5(b)(iv) hereof with respect to the
furnishing of prospectuses on the New York Business Day next succeeding the date
of this Agreement;
(l) The Trust shall have obtained and delivered to the
Underwriters executed copies of the lock-up agreements from each from each of
the stockholders of the Company set forth in the Company Underwriting Agreements
in form and substance reasonably satisfactory to the Underwriters; and
(m) The Trust, the Company and the Sellers shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Trust, the Company and the Sellers reasonably satisfactory to you as to
the accuracy of the representations and warranties of the Trust, the Company and
the Sellers, respectively, herein and in the Contracts and Collateral Agreements
at and as of such Time of Delivery, as to the satisfaction and performance by
the Trust, the Company and the Sellers of all of their respective obligations
hereunder and thereunder to be performed at or prior to such Time of Delivery
and as to such other matters as you may reasonably request, and the Company and
the Trust shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (g) of this Section.
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8. (a) The Company and the Sellers, jointly and severally,
will indemnify and hold harmless the Trust and each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which the Trust or
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Company Preliminary Prospectus, the Company
Registration Statement or the Company Prospectus, or any amendment 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 will reimburse the Trust and each
Underwriter for any legal or other expenses reasonably incurred by the Trust or
such Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company and
the Sellers shall 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 an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Company Preliminary Prospectus, the Company Registration Statement or the
Company Prospectus, or any such amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; provided,
further that in no event shall any Seller be liable under this Section 8(a) for
an amount in excess of the gross proceeds from the transactions contemplated by
this Agreement and the Fundamental Agreements received by such Seller from the
sale of the Securities; and provided, further, that the Company shall not be
liable to any Underwriter under the indemnity agreement in this subsection (a)
with respect to any Company Preliminary Prospectus to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold Securities to a person as to whom it shall be established
that there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Company Prospectus (excluding documents incorporated by
reference) in any case where such delivery is required by the Act if the Company
has previously furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the Company
Preliminary Prospectus which was identified in writing at such time to such
Underwriter and corrected in the Company Prospectus (excluding any document
incorporated by reference) or in the Company Prospectus as then amended or
supplemented (excluding documents incorporated by reference) and such correction
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) Each Underwriter will indemnify and hold harmless the Company,
the Trust and each Seller against any losses, claims, damages or liabilities to
which the
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Company, the Trust or such Seller may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Company Preliminary
Prospectus or Trust Preliminary Prospectus, either of the Registration
Statements or either of the Prospectuses, or any amendment 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Company Preliminary Prospectus or Trust
Preliminary Prospectus, either of the Registration Statements or either of the
Prospectuses, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Trust or the Company by
such Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and
will reimburse the Company, the Trust and such Seller for any legal or other
expenses reasonably incurred by the Company, the Trust or such Seller in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising
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out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Trust and the Sellers on the one
hand and the Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, the Trust and the Sellers on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company, the Trust and the Sellers on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, the Trust and the Sellers bear to the total
compensation received by the Underwriters, in each case as set forth in the
Trust Prospectus. The relative fault 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, the Trust or the Sellers on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Trust, the Sellers and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
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 which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d) no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price
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at which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company, the Trust and the Sellers
under this Section 8 shall be in addition to any liability which the Company,
the Trust and the Sellers may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or any Sellers (if any),
to each trustee of the Trust and to each person, if any, who controls the
Company, the Trust or any Seller within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder, you may in
your discretion arrange for you or another party or other parties reasonably
satisfactory to the Company to purchase such Securities on the terms contained
herein at a Time of Delivery. If within thirty-six hours after such default by
any Underwriter you do not arrange for the purchase of such Securities, then the
Company, the Trust and the Sellers shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
reasonably satisfactory to you to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Company,
the Trust and the Sellers that you have so arranged for the purchase of such
Securities, or the Company, the Trust and the Sellers notify you that it has so
arranged for the purchase of such Securities, you or the Company, the Trust and
the Sellers shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statements or the Prospectuses, or in any
other documents or arrangements, and the Company, the Trust and the Sellers
agree to file promptly any amendments to the Registration Statements or the
Prospectuses which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
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(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by you and the
Company, the Trust and the Sellers as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the Securities to
be purchased at such Time of Delivery, then the Company, the Trust and the
Sellers shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by you and the
Company, the Trust and the Sellers as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities to be
purchased at such Time of Delivery, or if the Company, the Trust and the Sellers
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Securities of a defaulting Underwriter
or Underwriters, then this Agreement (or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of the Trust to
sell the Optional Securities) shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Company, the Trust and the
Sellers, except for the expenses to be borne by the Company, the Trust, the
Sellers and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Trust, the Sellers and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, the Trust or any Seller or any officer or
director or controlling person of the Company, the Trust or any Seller and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company, the Trust nor the Sellers shall then be under any
liability to
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any Underwriter except as provided in Sections 6 and 8 hereof; but, if for any
other reason, any Securities are not delivered by or on behalf of the Trust as
provided herein, the Sellers, pro rata (based on the number of shares of Stock
to be sold by each Seller pursuant to the Contracts), will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company, the Trust and the Sellers shall
then be under no further liability to any Underwriter in respect of the
Securities not so delivered except as provided in Sections 6 and 8 hereof.
12. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to you as the representatives at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if to the
Trust shall be delivered or sent by mail, telex or facsimile transmission in
care of Xxxxxx X. Xxxxxxx, Xxxxxxx & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000; if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the Company in care of Ameritrade Holding
Corporation, 0000 Xxxxx 000xx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention: Chief
Financial Officer; and if to any Seller shall be delivered or sent by mail,
telex or facsimile transmission to _______________; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Trust, the Sellers and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company, the Trust, the Sellers and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us ten counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters, the Trust, the Company and the Sellers. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
Ameritrade Holding Corporation
By:
-----------------------------------------------
Name:
Title:
Ameritrade Automatic Common
Exchange Security Trust
By:
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
By: -----------------------------------------------
Name: Xxxxxxx X. Xxxxxx III
By: -----------------------------------------------
Name: Xxxxx X. X'Xxxxx
each a trustee of Ameritrade Automatic
Common Exchange Security Trust
[OTHER SELLER]
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-----------------------------------------------------
J. XXX XXXXXXXX
-----------------------------------------------------
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston Corporation
By:
--------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
NUMBER OF OPTIONAL
SECURITIES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SECURITIES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
------------- ------------------ ---------------
Xxxxxxx, Sachs & Co......................................................
Credit Suisse First Boston Corporation...................................
-- --
Total.................................................. -- --
4,000,000 600,000
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46
SCHEDULE II
Number of Optional
Securities to be
Total Number of Sold if
Firm Securities Maximum Option
to be Sold Exercised
------------------------- ------------------
The Sellers:
[SELLER]........................................................ 4,000,000
J. Xxx Xxxxxxxx................................................. 600,000
-- --
-- --
Total........................................................... 4,000,000 600,000
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47
ANNEX I
[Executed accountants' comfort letter, dated the date hereof, and form of bring-
down comfort letter]
A-I-1
