THOMAS WEISEL PARTNERS GROUP, INC. [Title of Debt Securities] Underwriting Agreement
Exhibit 1.2
XXXXXX XXXXXX PARTNERS GROUP, INC.
[Title of Debt Securities]
, 200_
[Underwriters]
Ladies and Gentlemen:
Xxxxxx Xxxxxx Partners Group, Inc., a Delaware corporation (the “Company”), 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 $ principal amount of the [Title of Debt
Securities] (the “Securities”), which are further described in Schedule II hereto.
1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333- ) (the “Initial
Registration Statement”) in respect of the Securities has been filed with the Securities
and Exchange Commission (the “Commission”); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a registration statement,
if any, increasing the size of the offering (a “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
Registration Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and
no proceeding for that purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission (any preliminary prospectus included in the Initial
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 “Preliminary
Prospectus”; the various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including 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 7(a) hereof and deemed by virtue
of Rule 430A under the Act to be part of the Initial Registration Statement at the time
it was declared effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter collectively
called the “Registration Statement”; the Preliminary Prospectus relating to the
Securities that was included in the Registration Statement immediately prior to the
Applicable Time (as defined in Section 1(a)(iii) hereof) together with each “issuer free
writing prospectus” as defined in Rule 433 under the Act relating to the Securities (an
“Issuer Free Writing Prospectus”) that is identified on Schedule III hereto and the
other information set forth on Schedule IV hereto, is hereinafter called the
“Pricing Prospectus”; and such final prospectus, in the form first filed pursuant to
Rule 424(b) under the Act, is hereinafter called the “Prospectus”);
All references in this Agreement to financial statements and schedules and other
information which are “contained,” “included,” “set forth” or “stated” in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus (and all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information which are or are
deemed to be incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, as the case may be (except for any
financial statements and schedules and other information incorporated or deemed to be
incorporated therein by reference to the extent modified or superseded by any financial
statements, schedules or other information included in the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus); and all references in
this Agreement to amendments or supplements to the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), which is or is deemed to be incorporated by reference in
the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, as the case may be (subject to the above exception for modified or
superseded financial statements, schedules and other information);
(ii) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust
Indenture 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 you expressly for use therein;
(iii) The documents incorporated or deemed to be incorporated by reference in the
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, with the exception of information in such incorporated documents that was modified
or superseded by information in the Prospectus, when read together with (and as modified
by) the other information in the Prospectus, at the time the Registration Statement and
any amendments became effective or were filed with the Commission, as the case may be,
none of such documents included 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. For the purposes of
this Agreement, the “Applicable Time” is 5:30 p.m. (Eastern time) on the date of this
Agreement. The Pricing Prospectus, as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule
III hereto does not conflict with the
information contained in the Registration Statement, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Prospectus as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
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warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the Company by
an Underwriter through you expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will conform,
in all material respects to the requirements of the Act and the Trust Indenture 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 Registration Statement and any amendment thereto
and as of the applicable filing date as to the 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 you expressly for use
therein;
(v) Neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements of the Company included in the Pricing
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 Pricing Prospectus, except for such loss or interference as would not, individually
or in the aggregate, have a material adverse effect on the business, prospects,
operations, assets, condition (financial or otherwise), members’ or stockholders’ equity
(as applicable) or results of operations of the Company and its consolidated
subsidiaries taken as a whole (a “Material Adverse Effect”); and, since the respective
dates as of which information is given in the Registration Statement and the Pricing
Prospectus, there has not been any change in the membership interests or capital stock
(as applicable) 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 business, operations, assets, condition (financial or
otherwise) or results of operations of the Company and its consolidated subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus;
(vi) The Company and its subsidiaries have good and marketable title to all
personal property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Pricing Prospectus or such as do not
materially affect the value of such property and do not 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 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 corporate
power and authority to own its properties and conduct its business as described in the
Pricing 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;
(viii) The Specified Subsidiary of the Company has been duly formed
and is validly existing and in good standing under the laws of its
jurisdiction of
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formation; and the Specified Subsidiary
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 except where the absence of such qualification or
good standing would not, individually or in the aggregate, have a Material Adverse
Effect. For purposes of this Agreement, the term “Specified
Subsidiary” shall mean
Xxxxxx Xxxxxx Partners LLC, a Delaware limited liability company.
(ix) The Company has an authorized capitalization as set forth in the Pricing
Prospectus, and all of the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable; and all of the
issued limited liability company membership interests or other ownership interests of
each subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors’ qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or
claims, except to such extent as would not, individually or in the aggregate, have a
Material Adverse Effect;
(x) The Securities have been duly and validly authorized and, when issued and
delivered pursuant to this Agreement and the Indenture to be entered into between the
Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (including any successor trustee, the “Trustee”),
prior to the Time of Delivery (the “Indenture”), will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and duly qualified under the Trust Indenture Act and,
as of the Time of Delivery, will constitute a valid and legally binding instrument,
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; and the Securities and the
Indenture will conform to the descriptions thereof contained in the Pricing Prospectus
and the Prospectus;
(xi) The issue and sale of the Securities to be sold by the Company and the
compliance by the Company with all of the provisions of the Securities, the Indenture
and 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 the
terms or provisions of, or constitute a default under, or give rise to a right of
termination 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, except for such breaches or
violations as would not, individually or in the aggregate, have a Material Adverse
Effect, nor will such action result in
any violation of the provisions of the Certificate of Incorporation or the 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;
(xii) No consent, approval, authorization, order, registration, qualification,
permit, license, exemption, filing or notice (each an “Authorization”) of, from, with or
to any court, tribunal, government, governmental or regulatory authority,
self-regulatory organization or body
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(each, a “Regulatory Body”) is required for the
issue and sale of the Securities by the Company or the consummation by the Company of
the transactions contemplated by this Agreement or the Indenture, except (i) the
registration of the Securities under the Act, the Exchange Act and the Trust Indenture
Act, (ii) the listing of the Securities on , (iii) 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; (iv) such Authorizations (including such
Authorizations as may be required by the National Association of Securities Dealers,
Inc. (the “NASD”) pursuant to NASD Rule 1017 or otherwise) as have been obtained or made
by the Company, its affiliates (or, solely in the case of such Authorizations as may be
required to be obtained under NASD Rule 1017, as shall have been obtained prior to the
Time of Delivery (as defined in Section 5 hereof)) and (v) such other Authorizations the
absence of which would not, individually or in the aggregate, have a Material Adverse
Effect; such Authorizations referenced in clause (iv) are in effect (or, solely in the
case of such Authorizations as may be required to be obtained under NASD Rule 1017,
shall be in effect prior to and as of the Time of Delivery), and no event has occurred
that allows or results in, or after notice or lapse of time or both would allow or
result in, revocation, suspension, termination or invalidation of any such Authorization
or any other impairment of the rights of the holder or maker of any such Authorization;
and other than as may be set forth in the Pricing Prospectus, such Authorizations
referenced in clause (iv) contain no restrictions that are materially more burdensome
than those imposed on the Company and its affiliates immediately prior to the date of
this Agreement;
(xiii) All corporate approvals (including those of stockholders) necessary for the
Company to consummate the transactions contemplated in this Agreement have been obtained
and are in effect;
(xiv) The Company and its subsidiaries have obtained or made all Authorizations
from, to or with all Regulatory Bodies as are required to conduct their respective
businesses as described in the Pricing Prospectus and the Prospectus, and no event has
occurred that allows or results in, or after notice or lapse of time or both would allow
or result in, revocation, suspension, termination or invalidation of any such
Authorization or any other impairment of the rights of the holder or maker of any such
Authorization; and the Company and its subsidiaries are members in good standing of each
Federal, state or foreign exchange, board of trade, clearing house or association and
self-regulatory or similar organization, in each case as necessary to conduct their
respective businesses as described in the Pricing Prospectus and the Prospectus, except
to such extent as would not, individually or in the aggregate, have a Material Adverse
Effect;
(xv) Neither the Company nor any of its subsidiaries is (A) in violation of its
Certificate of Incorporation or By-laws or other organizational documents or (B) 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 agreement or
instrument to which it is a party or by which it or any of its properties may be bound,
except for such defaults specified under subparagraph (B) herein that would not,
individually or in the aggregate, have a Material Adverse Effect;
(xvi) The statements set forth in the Pricing Prospectus and the Prospectus under
the caption “Description of Debt Securities We May Offer”, insofar as they purport to
constitute a summary of the terms of the Securities, under the caption “Plan of
Distribution”, insofar as they
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purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(xvii) Other than as set forth in the Pricing 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, could
reasonably be expected to, individually or in the aggregate, have a Material Adverse
Effect; and, to the best of the Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(xviii) The Company is not and, after giving effect to the offering and sale of the
Securities, will not be an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(xix) At the time of filing the Initial Registration Statement, the Company was not
an “ineligible issuer,” as defined in Rule 405 under the Act;
(xx) 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;
(xxi) The financial statements of the Company and its subsidiaries (including all
notes and schedules thereto) included in the Registration Statement, the Pricing
Prospectus and Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its subsidiaries for the periods
specified in conformity with generally accepted accounting principles, consistently
applied throughout the periods involved. The summary and selected financial data
included in the Registration Statement, the Pricing Prospectus and the Prospectus
present fairly the information shown therein as at the respective dates and for the
respective periods specified and are derived from the consolidated financial statements
set forth in the Registration Statement, the Pricing Prospectus and the Prospectus and
other financial information;
(xxii) The Company maintains a system of internal control over financial reporting
(as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with
the requirements of the Exchange Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. The Company’s internal control over financial reporting
is effective and the Company is not aware of any material weaknesses in its internal
control over financial reporting (other than as set forth in the Pricing Prospectus);
(xxiii) Since the date of the latest audited financial statements of the Company
included in the Pricing Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company’s internal control over financial reporting (other
than as set forth in the Pricing Prospectus);
(xxiv) No relationship, direct or indirect, exists between or among the Company, on
the one hand, and the directors, officers, stockholders, customers or suppliers of the
Company, on the other hand, which is required to be described in the Registration
Statement, the Pricing Prospectus and the Prospectus and which is not so described.
There are no outstanding loans, advances or guarantees of indebtedness by the Company to
or for the benefit of any of the executive officers or
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directors of the Company, except
as disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus;
(xxv) To the actual knowledge of the Company, no person associated with or acting
on behalf of the Company, including without limitation any director, officer, agent or
employee of the Company or its subsidiaries has, directly or indirectly, while acting on
behalf of the Company or its subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to political
activity, (ii) made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from corporate funds,
(iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended or
(iv) made any other unlawful payment;
(xxvi) Except as contemplated by this Agreement and as disclosed in the
Registration Statement, the Pricing Prospectus and the Prospectus, no person is entitled
to receive from the Company a brokerage commission, finder’s fee or other like payment
in connection with the transactions contemplated herein;
(xxvii) Neither the Company nor any of its subsidiaries or controlled affiliates
does business with the government of, or with any person located in any country in a
manner that violates in any material respect any of the economic sanctions programs or
similar sanctions-related measures of the United States as administered by the United
States Treasury Department’s Office of Foreign Assets Control; and the net proceeds from
this offering will not be used to fund any operations in, finance any investments in or
make any payments to any country, or to make any payments to any person, in a manner
that violates any of the economic sanctions of the United States administered by the
United States Treasury Department’s Office of Foreign Assets Control; and
(xxviii) Neither the Company nor any of its subsidiaries or controlled affiliates
does business with the government of Cuba or with any person located in Cuba within the
meaning of Section 517.075, Florida Statutes.
2. Subject to the terms and conditions herein set forth, the Company agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price of [___]% of the principal amount thereof, plus accrued interest,
if any, from [ ], 20___ to the Time of Delivery (as defined in Section 5 hereof) hereunder,
the principal amount of the Securities set forth opposite their respective names on Schedule I
hereto.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. [The Company hereby confirms its engagement of as, and
hereby confirms its agreement with the Company to render services as, a
“qualified independent underwriter” within the meaning of the rules of the National Association of
Securities Dealers, Inc. (the “NASD”) with respect to the offering and sale of the Securities.
, in its capacity as qualified independent underwriter and not otherwise, is
referred to herein as the “QIU”. As compensation for the services of the QIU hereunder, the
Company agrees to pay the QIU $ on the Time of Delivery (as defined in Section 5
hereof).]
5. (a) The Securities to be purchased by each Underwriter hereunder will be represented by one
or more definitive global Securities in book-entry form which will be deposited by or on behalf of
the Company with the Depository Trust Company (“DTC”) or its designated custodian. The Company
will deliver the Securities to , for the account of each Underwriter, against
payment by or on behalf of each such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day)
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funds to the account specified by the Company, to by
causing DTC to credit the Securities to the account of at DTC. The time
and date of such delivery and payment shall be , New York time, on ,200 or such
other time and date as may agree upon in writing. Such time and date
for delivery of the Securities is herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the
parties hereto pursuant to Section 10 hereof, including the cross receipt for the
Securities, will be delivered at the offices of the Company: Xxxxxx Xxxxxx Partners Group,
Inc., Xxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the “Closing Location”), and
the Securities will be delivered at the office of DTC or its designated custodian (the
“Designated Office”), all at the Time of Delivery. A meeting will be held at the Closing
Location at , New York City time, on the New York Business Day next preceding
the 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 5, “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.
6. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, on the one hand, and the Underwriters, or any of them, on the other, with
respect to the subject matter hereof.
The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
7. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such 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 the Act; to make
no further amendment or any supplement to the Registration Statement or the Prospectus prior
to the 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 Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to furnish you
with copies thereof; to file promptly all material required to be filed by the Company with
the Commission pursuant to Rule 433(d) under the Act; 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 Preliminary
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Prospectus or other prospectus in
respect of the Securities, 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 Registration Statement or the 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 Preliminary Prospectus or other prospectus or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) 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
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 in any jurisdiction;
(c) Prior to , New York City time, on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such quantities as
you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required at any time prior to the
expiration of nine months after the time of issue of the 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 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 Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus in order to comply with the Act or the
Trust Indenture 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 written and electronic
copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance;
(d) 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 (as defined in Rule 158(c) under the Act), an earning statement 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);
(e) During the period beginning from the date hereof and continuing to and including
the later of (i) the termination of trading restrictions for the Securities as notified to
the Company by you and (ii) the Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any securities of the Company that are
substantially similar to the Securities, without your prior written consent;
(f) Unless otherwise publicly available in electronic format on the website of the
Company or the Commission, 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, as soon as practicable after the end of
each of the first three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement), to make available
to its
9
stockholders consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the Registration
Statement, unless otherwise publicly available in electronic format on the website of the
Company or the Commission, to furnish to you copies of all reports or other communications
(financial or other) furnished to stockholders, and to deliver to you (i) as soon as they
are available, copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its stockholders generally or
to the Commission);
(h) To use the net proceeds received by it from the sale of the Securities pursuant to
this Agreement in the manner specified in the Pricing Prospectus and the Prospectus under
the caption “Use of Proceeds”;
(i) [To use its best efforts to list for quotation the Securities on
;]
(j) If the Company elects to rely upon Rule 462(b), the Company shall file a 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 the Company shall 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; and
(k) Upon request of any Underwriter, to furnish, or cause to be furnished, to such
Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate
logo for use on the website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the Securities (the “License”); provided, however, that
the License shall be used solely for the purpose described above, is granted without any fee
and may not be assigned or transferred.
8. (a) The Company represents and agrees that, without the prior consent of _________, it has not made and will not make any offer relating to the Securities
that would constitute a “free writing prospectus” as defined in Rule 405 under the Act; each
Underwriter represents and agrees that, without the prior consent of the Company and
, it has not made and will not make any offer relating to the Securities
that would constitute a free writing prospectus; any such free writing prospectus the use of which
has been consented to by the Company and is listed on Schedule III
hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show;
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or 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 then
prevailing, not misleading, the Company will give prompt notice thereof to
and, if requested by , will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct
10
such conflict,
statement or omission; provided, however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through
expressly for use therein.
9. The Company covenants and agrees with the several Underwriters that (a) the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s
counsel and accountants in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the
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, the Indenture, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in Section 7(b) hereof,
including the fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and expenses in connection
with listing the Securities on ; (v) any fees charged by securities rating agencies
for rating the Securities; (vi) 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; (vii) the cost of preparing the Securities; (viii) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except as provided in
this Section, and Sections [11 (with respect to the QIU)], 12 and 15 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.
10. The obligations of the Underwriters hereunder, as to the Securities to be delivered at the
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 7(a) hereof; all material required
to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with
the Commission within the applicable time period prescribed for such filing by Rule 433; if
the Company has elected to rely upon Rule 462(b) under the Act, the 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 Statement or
any part thereof shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus 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) , counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated the Time of Delivery, in the form attached as Annex
II(a) hereto;
11
(c) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to you their
written opinion and letter, dated the Time of Delivery, in the forms attached as Annex II(b)
hereto;
(d) On the date of the Prospectus at a time prior to the execution of this Agreement,
at , New York City time, on the effective date of any post-effective amendment
to the Registration Statement filed subsequent to the date of this Agreement and also at the
Time of Delivery, Deloitte & Touche 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 (the executed copy of the letter delivered prior
to the execution of this Agreement is attached as Annex I(a) hereto and a draft of the form
of letter to be delivered on the effective date of any post-effective amendment to the
Registration Statement and as of the Time of Delivery is attached as Annex I(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the
date of the latest audited financial statements of the Company included in the Pricing
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
Pricing Prospectus, and (ii) since the respective dates as of which information is given in
the Pricing 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 change, or any development
involving a prospective change, in or affecting the business, operations, assets, condition
(financial or otherwise) or results of operations of the Company and its consolidated
subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Pricing Prospectus;
(f) On or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on the New York
Stock Exchange or on the NASDAQ Global Select Market (“NASDAQ”); (ii) a suspension or
material limitation in trading in the Company’s securities on NASDAQ; (iii) a general
moratorium on commercial banking activities declared by either Federal or New York or
California State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States of a
national emergency or war or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or elsewhere, if
the effect of any such event specified in clause (iv) or (v) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities by any “nationally recognized statistical
rating organization”, as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications, its rating of any of
the Company’s debt securities;
(h) [The Securities have been duly listed for quotation on ;]
(i) The Company shall have complied with the provisions of Section 7(c) hereof with
respect to the furnishing of prospectuses on the New York Business Day next succeeding the
date of this Agreement; and
12
(j) The Company shall have furnished or caused to be furnished to you at the Time of
Delivery certificates of officers of the Company satisfactory to you as to the accuracy of
the representations and warranties of the Company herein at and as of the Time of Delivery,
as to the performance by the Company of all of its respective obligations hereunder to be
performed at or prior to the Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (e) of this Section.
11. [(a) The Company will indemnify and hold harmless , in its
capacity as QIU, against any losses, claims, damages or liabilities, joint or several, to which the
QIU 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 (i) an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement thereto, (ii) 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 or (iii) any act or omission to act or any alleged act
or omission to act by as QIU in connection with any transaction
contemplated by this Agreement or undertaken in preparing for the purchase, sale and delivery of
the Securities, except as to this clause (iii) to the extent that any such loss, claim, damage or
liability results from the gross negligence or bad faith of in performing
the services as QIU, and will reimburse the QIU for any legal or other expenses reasonably incurred
by the QIU in connection with investigating or defending any such action or claim as such expenses
are incurred.
(b) Promptly after receipt by the QIU under subsection (a) above of notice of the
commencement of any action, the QIU shall, if a claim in respect thereof is to be made
against the Company under such subsection, notify the Company in writing of the commencement
thereof; but the
omission so to notify the Company shall not relieve it from any liability which it may
have to the QIU otherwise than under such subsection. In case any such action shall be
brought against the QIU and it shall notify the Company of the commencement thereof, the
Company 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 satisfactory to the QIU (who shall not, except with the consent of the QIU, be
counsel to the Company), and, after notice from the indemnifying party to the QIU of its
election so to assume the defense thereof, the indemnifying party shall not be liable to the
QIU under such subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by the QIU, in connection with the defense thereof other
than reasonable costs of investigation. The Company shall not, 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 QIU is an actual
or potential party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the QIU from all liability arising 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 QIU.
(c) If the indemnification provided for in this Section 11 is unavailable to or
insufficient to hold harmless , in its capacity as QIU, under
subsection (a) above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then the Company shall contribute to the amount paid
or payable by the QIU 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 on the one hand and the QIU on the other from the offering of the
Securities. If, however, the allocation provided by the immediately preceding sentence is
not
13
permitted by applicable law or if the QIU failed to give the notice required under
subsection (b) above, then the Company shall contribute to such amount paid or payable by
the QIU in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the QIU 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 on the one hand and the QIU
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, as set forth in the table on
the cover page of the Prospectus, bear to the fee payable to the QIU pursuant to Section 4
hereof. 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 on the one
hand or the QIU on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company
and the QIU agree that it would not be just and equitable if contributions pursuant to this
subsection (c) were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in this
subsection (c). The amount paid or payable by the QIU as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this subsection
(c) 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.
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.
(d) The obligations of the Company under this Section 11 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the QIU within the meaning of the Act.]
12. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which 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 the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, 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 each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company 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 the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company 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 the Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus, or arise out of or are based
14
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 the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus,
in reliance upon and in conformity with written information furnished to the Company by such
Underwriter through expressly for use therein; and will reimburse
the Company for any legal or other expenses reasonably incurred by the Company 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 satisfactory to such indemnified party
(who 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 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 12 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 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 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 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 bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative
15
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 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 and the Underwriters agree that it would not be just and equitable if
contributions 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
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 under this Section 12 shall be in addition to any
liability which the Company 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 12 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 (including any
person who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the Company
within the meaning of the Act.
13. (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 to purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall have the right to postpone the 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 Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus 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.
(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 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,
then the Company shall have the
16
right to require each non-defaulting Underwriter to purchase
the principal amount of Securities which such Underwriter agreed to purchase hereunder 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 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, or if the Company
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 shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 9 hereof and the indemnity and contribution agreements
in Sections [11 (with respect to the QIU)] and 12 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
14. The respective indemnities, agreements, representations, warranties and other statements
of the Company 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, or any officer or director or controlling
person of the Company, and shall survive delivery of and payment for the Securities.
15. If this Agreement shall be terminated pursuant to Section 13 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 9, [11 (with respect
to the QIU)] and 12 hereof; but, if for any other reason any Securities are not delivered by or on
behalf of the Company as provided herein, the Company 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 shall then be under no further
liability to any Underwriter in respect of the Securities not so delivered except as provided in
Sections 9, [11 (with respect to the QIU)] and 12 hereof.
16. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly or by on
behalf of you as the representatives.
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 in care of ; and if to the Company shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Sections [11(b) (with respect to the QIU)] and 12(d) 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 on request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
17. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 11, 12 and 14 hereof, the
officers and directors of the
17
Company 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.
18. 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.
19. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
20. 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.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction contemplated by this Agreement and all materials of any kind (including tax opinions
and other tax analyses) provided to the Company relating to that treatment and structure, without
the Underwriters imposing any limitation of any kind. However, any information relating to the tax
treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply)
to the extent necessary to enable any person to comply
with securities laws. For this purpose, “tax structure” is limited to any facts that may be
relevant to that treatment.
18
If the foregoing is in accordance with your understanding, please sign and return to us one
for the Company and each of the Representatives plus one for each counsel, if any 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 among each of the Underwriters and
the Company. 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, XXXXXX XXXXXX PARTNERS GROUP, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted as of the date hereof at [ ] |
||||
By: | ||||
Name: | ||||
Title: | ||||
On behalf of each of the Underwriters
19
SCHEDULE I
Principal Amount | ||||
of Securities | ||||
Underwriter | to be Purchased | |||
Total |
SCHEDULE II
Title of Securities: .
Aggregate Principal Amount to be Offered:
Price to public:
Settlement Date:
Managing Underwriters:
Purchase Price by Underwriters:
Maturity Date:
Interest Rate:
Interest Payment Dates:
Interest Reset Dates:
Redemption Provisions:
[Conversion rate: .]
[Sinking fund provisions: [None] [ ].]
[Redemption provisions: [None] [ ].]
[Other provisions*:]]
SCHEDULE III
ISSUER FREE WRITING PROSPECTUSES
SCHEDULE IV
OTHER INFORMATION
ANNEX I
FORM OF COMFORT LETTERS
[Form to be agreed]
ANNEX II(a)
FORM OF OPINION OF
[Form to be agreed]
ANNEX II(b)
FORM OF OPINION AND LETTER OF XXXXXXXX & XXXXXXXX LLP
[Form to be agreed]