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Exhibit 1.1
THE CIT GROUP, INC.
______ Shares Class A Common Stock
Underwriting Agreement
_______, 1997
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Salomon Brothers Inc
UBS Securities LLC
As representatives of the several U.S. underwriters
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
THE CIT GROUP, INC. a Delaware corporation (the "Company"), proposes to
sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters") for whom you are acting as representatives (the
"Representatives") an aggregate of ___ shares of Class A Common Stock, par value
$.01 per share, of the Company (the "Underwritten Shares") and, for the sole
purpose of covering over-allotments in connection with the sale of the
Underwritten Shares, at the option of the Underwriters, to issue and sell up to
an additional ___ shares of Class A Common Stock of the Company (the "Option
Shares"). The Underwritten Shares and the Option Shares are herein referred to
as the "Shares".
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
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statement relating to the Shares. The registration statement as amended at the
time when it shall become effective, including information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Securities Act, is referred to in this Agreement as the
"Registration Statement" and the prospectus in the form first used to confirm
sales of Shares is referred to in this Agreement as the "Prospectus". If the
Company has filed an abbreviated registration statement pursuant to Rule 462(b)
under the Securities Act (the "Rule 462 Registration Statement"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement. Any reference in this Agreement to the
Registration Statement, any preliminary prospectus or the Prospectus shall also
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-2 under the Securities Act, as of the
effective date of the Registration Statement or the date of such preliminary
prospectus or the Prospectus, as the case may be.
Prior to the recapitalization referred to below, The Dai-Ichi Kangyo
Bank ("DKB") owned 80% (the "DKB Shares") of the issued and outstanding shares
of common stock, par value $1.00 per share, of the Company. Pursuant to a letter
agreement (as amended, the "CBC Letter Agreement") dated December 15, 1995,
among Dai-Ichi Kangyo Bank, Limited ("DKB Ltd."), a [wholly-owned] subsidiary of
DKB, CBC Holding Inc. and Chemical Banking Corporation (now Chase Manhattan
Bank) (together with CBC Holding Inc, the "CBC Entities"), DKB Ltd. was given an
option (the "CBC Option") to purchase the remaining 20% of the issued and
outstanding shares of common stock, par value $1.00 per share, of the Company
(the "CBC Shares") from the CBC Entities. Prior to the execution of this
Agreement, the common stock, par value $1.00 per share, of the Company was
recapitalized (the "Recapitalization") so that the CBC Shares became shares of
Stock and the DKB Shares become shares of Class B Common Stock, par
value $.01 per share (the "Class B Common Stock"). Immediately prior to the
execution of this Agreement, DKB Ltd. transferred the DKB Option to the Company
pursuant to an Assignment Agreement between the Company and DKB Ltd. On the
Closing Date (as hereinafter defined), the Company will exercise the CBC Option
and, immediately thereafter, the closing of the purchase of the CBC Shares will
occur.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to sell the Underwritten Shares to the
several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective number of Underwritten Shares set forth opposite
such
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Underwriter's name in Schedule I hereto at a purchase price per share (the
"Purchase Price") of $_____. The public offering price of the Shares is not in
excess of the price recommended by X.X. Xxxxxx Securities Inc. ("X.X. Xxxxxx"),
acting as a "qualified independent underwriter" within the meaning of Rule 2720
of the Rules of Conduct of the National Association of Securities Dealers, Inc.
(the "NASD").
In addition, the Company agrees to issue and sell the Option Shares to
the several Underwriters as hereinafter provided, and the Underwriters on the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, shall have the option to purchase, severally and
not jointly, from the Company up to an aggregate of ___ Option Shares at the
Purchase Price, for the sole purpose of covering over-allotments (if any) in the
sales of Underwritten Shares by the several Underwriters.
If any Option Shares are to be purchased, the number of Option Shares
to be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as
the number of Underwritten Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company by the several Underwriters, subject, however, to
such adjustments to eliminate any fractional Shares as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares
at any time (but not more than once) on or before the thirtieth day following
the date of this Agreement, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option Shares as to
which the option is being exercised and the date and time when the Option Shares
are to be delivered and paid for, which may be the same date and time as the
Closing Date but shall not be earlier than the Closing Date nor later than the
tenth full Business Day (as hereinafter defined) after the date of such notice
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Any such notice shall be given at least two Business Days
prior to the date and time of delivery specified therein.
2. The Company understands that the Underwriters intend (i)to make a
public offering of the Shares as soon after (A) the Registration Statement has
become effective and (B) the parties hereto have executed and delivered this
Agreement, as in the judgment of the Representatives is advisable and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
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3. Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives in the case of the Underwritten Shares, on ___ 1997, or at such
other time on the same or such other date, not later than the fifth Business Day
thereafter, as the Representatives and the Company may agree upon in writing or,
in the case of the Option Shares, on the date and time specified by the U.S.
Representatives in the written notice of the U.S. Underwriters' election to
purchase such Option Shares. The time and date of such payment for the
Underwritten Shares is referred to herein as the "Closing Date" and the time and
date for such payment for the Option Shares, if other than the Closing Date, is
herein referred to as the "Additional Closing Date". As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the applicable Representatives shall request in writing not
later than two full Business Days prior to the Closing Date or the Additional
Closing Date, as the case may be, with any transfer taxes payable in connection
with the transfer to the Underwriters of the Shares duly paid by the Company.
The certificates for the Shares will be made available for inspection and
packaging by the applicable Representatives at the office of X.X. Xxxxxx
Securities Inc. set forth above not later than 1:00 P.M., New York City time, on
the Business Day prior to the Closing Date or the Additional Closing Date, as
the case may be.
4. The Company represents and warrants to each Underwriter
that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act, 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 that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use therein;
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(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as
of the date of the Prospectus and any amendment or supplement thereto,
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 the Prospectus, as amended or
supplemented, if applicable, at the Closing Date or Additional Closing
Date, as the case may be, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; except that the foregoing representations and
warranties shall not apply to statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use therein;
(c) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission conformed in all material
respects to the requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act");
(d) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the consolidated results of their operations and changes in their
consolidated cash flows for the periods specified; and said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein;
(e) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of the Company
or any of its
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subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or contemplated
in the Prospectus neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or not in the
ordinary course of business) material to the Company and its
subsidiaries taken as a whole;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the 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, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as
a whole;
(g) each of the subsidiaries of the Company listed on Exhibit
A (the "Principal Subsidiaries"), has been duly incorporated and is
validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the 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
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and all the outstanding shares of capital stock of each
Principal Subsidiary of the Company have been duly authorized and
validly issued, are fully-paid and non-assessable, and are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(h) prior to the Recapitalization, DKB and the CBC Entities
owned all of the issued and outstanding shares of common stock, par
value $1.00 per share of the Company;
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
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(j) the Company has an authorized capitalization as set forth
in the Prospectus and such authorized capital stock conforms as to
legal matters to the description thereof set forth in the Prospectus,
and all of the outstanding shares of capital stock (including the
Underwritten Shares) of the Company have been duly authorized, are
validly issued, fully-paid and non-assessable and, other than the
Underwritten Shares, will be owned by DKB following the sale of the
Underwritten Shares; and, except as described in or expressly
contemplated by the Prospectus, such capital stock is not subject to
any pre-emptive or similar rights and there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the
Company or any of its subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company or any such subsidiary,
any such convertible or exchangeable securities or any such rights,
warrants or options;
(k) the Additional Shares have been duly authorized and, when
issued and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be validly issued and will be
fully paid and non-assessable and will conform to the description
thereof in the Prospectus; and the issuance of the Additional Shares is
not subject to any preemptive or similar rights;
(l) The Assignment Agreement has been, and each of the
Regulatory Compliance Agreement, Registration Rights Agreement and Tax
Allocation Agreement, in each case, between the Company and DKB
(collectively with the Assignment Agreement, the "Intercompany
Agreements") will be, on or prior to the Closing Date, duly authorized,
executed and delivered by the Company and constitutes or will
constitute a valid and binding agreement of the Company, enforceable in
accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and the availability of equitable remedies may be
limited by equitable principles of general applicability;
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(m) neither the Company nor any of its Principal Subsidiaries
is, or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
Principal Subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole; the issue and sale
of the Shares and the performance by the Company of its obligations
under this Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach 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 the Company or any of its Principal Subsidiaries
is a party or by which the Company or any of its Principal Subsidiaries
is bound or to which any of the property or assets of the Company or
any of its Principal Subsidiaries is subject, nor will any such action
result in any violation of the provisions of the Certificate of
Incorporation or the By-laws of the Company or any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, its Principal
Subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except such
consents, approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act and as
may be required under foreign or state securities or Blue Sky Laws in
connection with the purchase and distribution of the Shares by the
Underwriters;
(n) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its subsidiaries, could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, and,
to the best of the Company's knowledge, no such
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proceedings are threatened or contemplated by governmental authorities
or threatened by others; and there are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(o) no relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of its subsidiaries on the other hand, which is required
by the Securities Act to be described in the Registration Statement and
the Prospectus which is not so described;
(p) other than as set forth or contemplated in the Prospectus,
no person has the right to require the Company to register any
securities for offering and sale under the Securities Act by reason of
the filing of the Registration Statement with the Commission or the
issue and sale of the Shares;
(q) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company",
as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(r) KPMG Peat Marwick LLP who have certified certain financial
statements of the Company and its subsidiaries are independent public
accountants as required by the Securities Act;
(s) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Stock;
(t) each of the Company and its Principal Subsidiaries owns,
possesses or has obtained all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has made
all declarations and filings with, all federal, state, local and other
governmental authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, and neither the Company nor any Principal
Subsidiary has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate,
consent, order, approval or other
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authorization; and each of the Company and its Principal Subsidiaries
is in compliance in all material respects with all laws and regulations
relating to the conduct of its business as conducted as of the date
hereof; and
(u) the Company and its Principal Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environment Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; the Company has reasonably concluded that the costs and
liabilities associated with its compliance with Environmental Laws
would not, singly, or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to use its best efforts to cause the Registration
Statement to become effective at the earliest possible time and, if
required, to file the final Prospectus with the Commission within the
time periods specified by Rule 424(b) and Rule 430A under the
Securities Act and 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 Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; and to furnish copies of the Prospectus
to the Underwriters in New York City prior to 10:00 a.m., New York City
time, on the Business Day next succeeding the date of this Agreement in
such quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the
Representatives eight signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein, and to each
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other Underwriter a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case without
exhibits but including the documents incorporated by reference therein
and, during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by reference
therein as the Representatives may reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the
time the Registration Statement becomes effective, to furnish to the
Representatives a copy of the proposed amendment or supplement for
review and not to file such proposed amendment or supplement to which
the Representatives reasonably object;
(d) to advise the Representatives promptly, and to conform
such advice in writing (i) when the Registration Statement has become
effective, (ii) when any amendment to the Registration Statement has
been filed or becomes effective, (iii) when any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or
the Prospectus or the initiation or threatening of any proceeding for
that purpose, (vi) of the occurrence of any event, within the period
referenced in paragraph (e) below, as a result of which the 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 when the
Prospectus is delivered to a purchaser, not misleading, and (vii) of
the receipt by the Company of any notification with respect to any
suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order, or of any order preventing or suspending the use
of any preliminary prospectus or the Prospectus, or of any order
suspending any such qualification of the Shares, or notification of any
such order thereof and, if issued, to obtain as soon as possible the
withdrawal thereof;
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(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to
be delivered in connection with sales by the Underwriters or any
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company, to the Underwriters
and to the dealers (whose names and addresses the Representatives will
furnish to the Company) to which Shares may have been sold by the
Representatives on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may
be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Shares; provided that the Company shall not be required to file
a general consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and to
the Representatives as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) During a period of two years after the effective date of
the Registration Statement, to furnish to the Representatives copies of
all reports or other communications (financial or other) furnished to
holders of the Shares, and copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange;
(i) for a period of 180 days after the date of the initial
public offering of the Shares not to (i) offer, sell, contract to sell,
or otherwise dispose of, directly or indirectly, any securities of the
Company which are substantially similar to shares of Stock, including
but not limited to any securities that are convertible into or
exchangeable for, or that represent
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the right to receive Stock or any such substantially similar securities
or (ii) enter into any swap, option, future, forward or other agreement
that transfers, in whole or in part, the economic consequence of
ownership of the Stock or any such substantially `similar securities,
without the prior written consent of X.X. Xxxxxx Securities Inc., other
than the Shares to be sold hereunder and shares of Stock issued
pursuant to employee stock option plans existing on the date of the
initial public offering;
(j) to use the net proceeds received by the Company from the
sale of the Shares pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds";
(k) to use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(l) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution and delivery of the Shares, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification of the Shares under the laws of such jurisdictions as the
Representatives may designate (including fees of counsel for the
Underwriters and its disbursements), (iv) in connection with the
listing of the Shares on the Exchange, (v) related to the filing with,
and clearance of the offering by, the NASD including the fees and
expenses of X.X. Xxxxxx, acting as "qualified independent underwriter"
within the meaning of Rule 2720 of the Rules of Conduct of the NASD,
(vi) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, any dealer
agreements, any Blue Sky Memoranda and the furnishing to the
Underwriters and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein provided,
(vii) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors, (viii) the cost of preparing
stock certificates and (ix) the cost and charges of any transfer agent
and any registrar.
6. The several obligations of the Underwriters hereunder to purchase
the Shares on the Closing Date or the Additional Closing Date, as the case may
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be, are subject to the performance by the Company of its respective obligations
hereunder and to the following additional conditions:
(a) the Registration Statement shall have become effective (or
if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective) not later than 5:00 P.M., New York City time, on the date
hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under
the Securities Act and in accordance with Section 5(a) hereof; and all
requests for additional information shall have been complied with to
the satisfaction of the Representatives;
(b) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date or
the Additional Closing Date, as the case may be, as if made on and as
of the Closing Date or the Additional Closing Date, as the case may be,
and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date or the Additional Closing Date, as the case
may be;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date or the Additional Closing Date, as the
case may be, there shall not have occurred any downgrading, nor shall
any notice have been given of (i) any downgrading, (ii) any intended or
potential downgrading or (iii) any review or possible change that does
not indicate an improvement, in the rating accorded any securities of
or guaranteed by the Company by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the
capital stock or 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, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment of
the Representatives makes it impracticable or
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inadvisable to proceed with the public offering or the delivery of the
Shares on the Closing Date or the Additional Closing Date, as the case
may be, on the terms and in the manner contemplated in the Prospectus;
and 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 Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a
certificate of an executive officer of the Company, with specific
knowledge about the Company's financial matters, satisfactory to the
Representatives to the effect set forth in subsections (a) through (d)
of this Section and to the further effect that there has not occurred
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole from that set forth or contemplated in the Registration
Statement;
(f) Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) this Agreement has been duly authorized, executed
and delivered by the Company;
(ii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iii) all of the outstanding shares of capital stock
(including the Underwritten Shares) of the Company have been
duly authorized and are validly issued, fully paid and non-
assessable and, except as described in or expressly
contemplated by the Prospectus, such capital stock, is not
subject to any preemptive or similar rights;
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(iv) the Additional Shares have been duly authorized
and, when issued and delivered to and paid for by the U.S.
Underwriters in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable and will
conform to the description thereof in the Prospectus; and the
issuance of the Additional Shares is not subject to any
preemptive or similar rights;
(v) such counsel does not know of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement that are
not described or filed as required;
(vi) the statements in the Prospectus under
"Management--Long-Term Incentive Plan; --Defined Benefit
Plans; --Employment Agreements"; "Relationship with
DKB--Regulatory Compliance Agreements; --Registration Rights
Agreement; --Tax Allocation Agreement"; "Description of
Capital Stock"; "Certain United States Tax Consequences to
Non-United States Holders"; and "Underwriting," and in the
Registration Statement in Items 14 and 15, insofar as such
statements constitute a summary of the terms of the Stock,
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
terms, legal matters, documents or proceedings;
(vii) such counsel is of the opinion that the
Registration Statement and the Prospectus and any amendments
and supplements thereto (other than the financial statements
and related schedules and other financial and statistical data
included or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and has no reason to believe that (other than the financial
statements and related schedules and other financial and
statistical data included or incorporated by reference
therein, as to which such counsel need express no belief) the
Registration Statement and the Prospectus included therein at
the time the Registration Statement became effective contained
any 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 the
Prospectus, as amended or supplemented, if applicable,
contains any untrue
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statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(viii) no consent, approval, authorization, order,
license, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Shares or the consummation of the other transactions
contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act
and as may be required under foreign or state securities or
Blue Sky laws in connection with the purchase and distribution
of the Shares by the Underwriters; and
(ix) the Company is not and, after giving effect to
the offering and sale of the Shares, will not be an
"investment company" as such term is defined in the Investment
Company Act;
(x) each Intercompany Agreement has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and the availability of equitable remedies may be
limited by equitable principles of general applicability; and
the exercise of the CBC Option has been duly authorized,
executed and delivered by the Company.
(g) Xxxxxx X. Xxxxx, Executive Vice President and General
Counsel for the Company, shall have furnished to the Representatives
his written opinion, dated the Closing Date or the Additional Closing
Date, as the case may be, in form and substance satisfactory to the
Representatives, 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 its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(ii) 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
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properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(iii) each of the Company's Principal Subsidiaries
has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of
incorporation with power and authority (corporate and other)
to own its properties and conduct its business as described in
the 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, other than where the failure to be
so qualified and in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole; and all of the outstanding shares of capital stock of
each Principal Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities and claims;
(iv) other than set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened against or affecting the
Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company
or its subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its
subsidiaries, could individually or in the aggregate,
reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole; to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and such counsel does not
know of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not described
or filed as required;
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(v) such counsel is of the opinion that the
Registration Statement and the Prospectus and any amendments
and supplements thereto (other than the financial statements
and related schedules and other financial and statistical data
included or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and has no reason to believe that (other than the financial
statements and related schedules and other financial and
statistical data included or incorporated by reference
therein, as to which such counsel need express no belief) the
Registration Statement and the Prospectus included therein at
the time of the Registration Statement became effective
contained any 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 the Prospectus, as amended or supplemented, if
applicable, contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading;
(vi) neither the Company nor any of its Principal
Subsidiaries is, or with the giving of notice or lapse of time
or both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its Principal Subsidiaries is a party or by which it or any
of them or any of their respective properties is bound, except
for violations or defaults which individually and in the
aggregate are not material to the Company and its subsidiaries
taken as a whole; the sale of the Shares being delivered on
the Closing Date or the Additional Closing Date, as the case
may be, and the performance by the Company of its obligations
under this Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a
breach 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 known to such
counsel to which the Company or any of its Principal
Subsidiaries is a party or by which the Company or any of its
Principal Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Principal
Subsidiaries is subject, nor will any such action result in
any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the
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Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its Principal Subsidiaries or
any of their respective properties;
(vii) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made
by the Company prior to the Closing Date or the Additional
Closing Date, as the case may be, (other than the financial
statements and related schedules and other financial and
statistical data included therein, as to which such counsel
need not express no opinion), when they were filed with the
Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(viii) each of the Company and its Principal
Subsidiaries owns, possesses or has obtained all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as
the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, and neither
the Company nor any such Principal Subsidiary has received any
actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate,
consent, order, approval or other authorization; and each of
the Company and its Principal Subsidiaries is in compliance in
all material respects with all laws and regulations relating
to the conduct of its business as conducted as of the date of
the Prospectus; and
(ix) each of the Company and its Principal
Subsidiaries is in compliance with all Environmental Laws,
except, in each case, where noncompliance, individually or in
the aggregate, would not have a material adverse effect on the
Company and its subsidiaries taken as a whole; there are no
legal or governmental proceedings pending or, to the knowledge
of such counsel, threatened against or affecting the Company
or any of its subsidiaries under any Environmental Law which,
individually or in the aggregate, could reasonably be expected
to have a material adverse effect on the Company and its
subsidiaries as a whole.
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In rendering the opinions set forth in paragraphs (f) and (g) of this
Section, such counsel may rely (A) as to matters involving the application of
laws other than the laws of the United States and the States of Delaware and New
York, to the extent such counsel deems proper and to the extent specified in
such opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to Underwriters' counsel, familiar with the applicable laws; (B) as
to matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and, in the case of Xxxxxx X. Xxxxx,
certificates or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Company. The opinions of such counsel for the Company shall state that the
opinions of any such other counsel upon which they relied is in form
satisfactory to such counsel and, in such counsel's opinion, the Underwriters
and they are justified in relying thereon. With respect to the matters to be
covered in subparagraph (vii) of paragraph (f) and subparagraphs (v) and (vii)
paragraph (g) above counsel may state their opinion and belief is based upon
their participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto (other than, in the case of
Xxxxxxx Xxxx & Xxxxx LLP, the documents incorporated by reference therein) and
review and discussion of the contents thereof (including the documents
incorporated by reference therein) but is without independent check or
verification except as specified.
The opinions of Xxxxxxx Xxxx & Xxxxx LLP and Xxxxxx X. Xxxxx described
above shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(h) on the effective date of the Registration Statement and
the effective date of the most recently filed post-effective amendment
to the Registration Statement and also on the Closing Date or
Additional Closing Date, as the case may be, KPMG Peat Marwick LLP
shall have furnished to you letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
(i) the Representatives shall have received on and as of the
Closing Date or Additional Closing Date, as the case may be, an opinion
of Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, with respect to
the due authorization and valid issuance of the Shares, the
Registration Statement, the Prospectus and other related matters as the
Representatives
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may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(j) the Shares to be delivered on the Closing Date or
Additional Closing Date, as the case may be, shall have been approved
for listing on the Exchange, subject to official notice of issuance;
(k) on or prior to the Closing Date or Additional Closing
Date, as the case may be, the Company shall have furnished to the
Representatives such further certificates and documents as the
Representatives shall reasonably request;
(l) The "lock-up" agreements, each substantially in the form
of Exhibit B hereto, between you and DKB and certain officers and
directors of the Company relating to sales and certain other
dispositions of shares of Stock or certain other securities, delivered
to you on or before the date hereof, shall be in full force and effect
on the Closing Date or Additional Closing Date, as the case may be; and
(m) the Company shall have purchased the CBC Option pursuant
to the Assignment Agreement and notice of exercise of the CBC Option
shall have been given.
7. The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by 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, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein.
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The Company also agrees to indemnify and hold harmless, X.X. Xxxxxx and
each person, if any, who controls X.X. Xxxxxx within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities incurred as a result
of X.X. Xxxxxx'x participation as a "qualified independent underwriter" within
the meaning of Rule 2720 of the Rules of Conduct of the NASD in connection with
the offering of the Shares.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to any of the
three preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any impeded
parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred provided, however, that if indemnity may be sought pursuant to the
second paragraph of this Section 7 in respect of such proceeding, then in
addition to such separate firm for the Underwriters and such
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control persons of the Underwriters the Indemnifying Person shall be liable for
the fees and expenses of not more than one separate firm (in addition to any
local counsel) for X.X. Xxxxxx in its capacity as a "qualified independent
underwriter" and all persons, if any, who control X.X. Xxxxxx, within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act. Any such separate firm for the Underwriters and such control persons of
Underwriters shall be designated in writing by X.X. Xxxxxx Securities Inc. and
any such separate firm for the Company, its directors, officers who sign the
Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first, second or third
paragraphs of this Section 7 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
or X.X. Xxxxxx in its capacity as "qualified independent underwriter," as the
case may be, on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportions as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters or J.P.
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Xxxxxx in its capacity as "qualified independent underwriter," as the case may
be, on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand shall be deemed to be in
the same respective proportions as the net proceeds from the offering (before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus, or the fee received by X.X. Xxxxxx in
its capacity as a "qualified independent underwriter," bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and the Underwriters or X.X. Xxxxxx in its capacity as "qualified
independent underwriter," as the case may be, on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters or X.X. Xxxxxx in its capacity as "qualified independent
underwriter," as the case may be, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purposes) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares set forth opposite their names in Schedule I or
Schedule II hereto, and not joint.
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The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Representatives, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (or, in the case of the Option Shares, prior to the
Additional Closing Date) (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers, Inc., (ii) trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Shares being delivered at
the Closing Date or the Additional Closing Date, as the case may be, on the
terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
obligated to purchase on such date shall be obligated severally in the
proportions that the
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number of Shares set forth opposite their respective names in Schedule I or
Schedule II bears to the aggregate number of Underwritten Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Representatives may specify, to purchase the Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-tenth of such number of
Shares without the written consent of such Underwriter. If on the Closing Date
or the Additional Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Shares which it or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to the applicable Representatives and the Company for the purchase
of such Shares are not made within 36 hours after such default, this Agreement
(or the obligations of the several Underwriters to purchase the Option Shares,
as the case may be) shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date (or, in the case of
the Option Shares, the Additional Closing Date), but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by the Underwriters in connection with this Agreement or the
offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Shares from
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any Underwriter shall be deemed to be successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by X.X.
Xxxxxx Securities Inc. alone on behalf of the Representatives or Underwriters,
and any such action taken by X.X. Xxxxxx Securities Inc. alone shall be binding
upon the Representatives or Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representatives, c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax: _________); Attention:
Syndicate Department. Notices to the Company shall be given to it at
______________, ___________, ______________, (telefax: _________); Attention:
___________.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAWS PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
THE CIT GROUP INC.
By:_____________________________________
Title:
Accepted: ________, 1997
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Salomon Brothers Inc
UBS Securities LLC
Acting severally on behalf
of themselves and the
several Underwriters listed in
Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
By:____________________________
Title:
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SCHEDULE I
NUMBER OF
UNDERWRITTEN
SHARES
UNDERWRITER TO BE PURCHASED
----------- ---------------
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Salomon Brothers Inc
UBS Securities LLC --------
Total ========
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