Exhibit 1.1
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AMERICREDIT CORP.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(COMMON STOCK)
______________, 2001
From time to time, AMERICREDIT CORP., a Texas corporation (the "Company"),
may enter into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is
referred to as this Agreement. Terms defined in the Underwriting Agreement are
used in this Agreement as defined in the Underwriting Agreement.
The Company meets the requirements for use of Form S-3 under the Securities
Act of 1933, as amended (the "Securities Act"), has filed with the Securities
and Exchange Commission (the "Commission") a registration statement, including a
prospectus, relating to the Offered Securities and has filed with, or shall
promptly hereafter file with, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Offered Securities
pursuant to Rule 424 or Rule 434 under the Securities Act. The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus"
and "preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and warrants
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to and agrees with each of the Underwriters that:
(a) At the time of the effectiveness of the Registration Statement or the
effectiveness of any post-effective amendment to the Registration Statement,
when the Prospectus is first filed with the Commission pursuant to Rule 424(b)
of the Securities Act, when any supplement to or
amendment of the Prospectus is filed with the Commission and at the Closing Date
and the Additional Closing Date, if any (as hereinafter respectively defined),
the Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
applicable provisions of the Securities Act and does not or will not contain an
untrue statement of a material fact and does not or will not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein (i) in the case of the Registration Statement, not misleading
and (ii) in the case of the Prospectus, in light of the circumstances under
which they were made, not misleading. No representation and warranty is made in
this subsection, however, with respect to any information contained in or
omitted from the Registration Statement or the Prospectus or any preliminary
prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter as herein stated expressly for use in connection with
the preparation thereof.
(b) PricewaterhouseCoopers LLP ("Price"), who have certified the
consolidated balance sheets of the Company as of ________________, and the
related consolidated statements of income, stockholders' equity and cash flows
for each of the ______ years in the period ended ____________ included in the
Registration Statement, are independent public accountants as required by the
Securities Act.
(c) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as set forth in the
Registration Statement and the Prospectus, there has been no material adverse
change, nor any development involving a prospective material adverse change, in
the business, prospects, properties, operations, condition (financial or other)
or results of operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"), whether or not arising from transactions in the
ordinary course of business, and since the date of the latest balance sheet
presented in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company and its
subsidiaries taken as a whole, except for liabilities or obligations which are
reflected in the Registration Statement and the Prospectus.
(d) This Agreement and the transactions contemplated herein have been duly
and validly authorized by the Company. This Agreement has been duly and validly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except, in the case of enforceability, as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights generally or by
general principles of equity relating to the availability of remedies and except
as rights to indemnity and contribution may be limited by federal or state
securities laws or the public policy underlying such laws. This Agreement
conforms in all material respects to the description hereof contained in the
Registration Statement and the Prospectus. The Company has all requisite
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corporate power and authority to execute, deliver and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby.
(e) The execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby do not and will not (i)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any agreement, instrument, franchise,
license or permit to which the Company or any of its subsidiaries is a party or
by which any of such corporations or their respective properties or assets may
be bound that is material to the Company and its subsidiaries, taken as a whole,
or (ii) violate or conflict with any provision of the articles of incorporation
or bylaws of the Company or any of its subsidiaries or any judgment, decree,
order, statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets. No consent,
approval, authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental or regulatory agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their respective properties or assets (collectively, "Licenses") is required for
the execution, delivery and performance of this Agreement or the consummation of
the transactions contemplated thereby, including the issuance, sale and delivery
of the Offered Securities to be issued, sold and delivered by the Company
hereunder, except the registration under the Securities Act of the Offered
Securities and such Licenses as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters or by the National Association of Securities
Dealers, Inc. (the "NASD").
(f) All of the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and nonassessable
and are not now in violation of or subject to any preemptive rights. The Offered
Securities, when issued, delivered and sold in accordance with this Agreement,
will be duly and validly issued and outstanding, fully paid and nonassessable,
and will not have been issued in violation of or be subject to any preemptive
rights. The Company had, at ________________, an authorized and outstanding
capitalization as set forth in the Registration Statement and the Prospectus.
The capital stock of the Company conforms in all material respects to the
descriptions thereof contained in the Registration Statement and the Prospectus.
(g) Each of the Company and its subsidiaries (i) has been duly organized
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, (ii) is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the character or location of
its properties (owned, leased or licensed) or the nature or conduct of its
business makes such qualification necessary, except for those failures to be so
qualified or in good standing that will not have a Material Adverse Effect, and
(iii) has all requisite power and authority, and all necessary Licenses, to own,
lease and operate its properties and conduct its
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business as now being conducted and as described in the Registration Statement
and the Prospectus, except in such case where the failure to have such Licenses
will not have a Material Adverse Effect, and no such License contains a
materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus. Neither the Company nor any of its subsidiaries
has received any written notice of proceedings relating to the revocation or
modification of any such License which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have resulted in a
Material Adverse Effect, except as described in or contemplated by the
Prospectus.
(h) The issued shares of capital stock of each of the subsidiaries of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and are owned of record and beneficially, directly or indirectly,
by the Company free and clear of any security interest, lien, claim,
encumbrance, restriction on transfer, shareholders' agreement, voting trust or
other preferential arrangement or defect of title whatsoever.
(i) Neither the Company nor any of its subsidiaries, nor any of their
respective officers or directors has taken or will take, directly or indirectly,
any action designed to cause or result in, or which constitutes or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of the Company's capital stock to facilitate the sale or
resale of the Offered Securities.
(j) Except as described in the Prospectus, no holder of securities of the
Company has any rights to the registration of securities of the Company because
of the filing of the Registration Statement or otherwise in connection with the
sale of the Offered Securities contemplated hereby. Except as described in the
Prospectus, no holder of securities of the Company has any rights to the
registration, whether now or in the future, of securities of the Company.
(k) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its subsidiaries is
subject or which is pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries that (i) would have a Material
Adverse Effect or would result in any development involving a Material Adverse
Effect or (ii) is required to be disclosed in the Registration Statement and the
Prospectus.
(l) The financial statements, including the notes thereto, included in the
Registration Statement and the Prospectus present fairly the financial position
of the Company as of the dates indicated and the results of operations for the
periods specified, all in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the entire periods
presented, except as otherwise disclosed therein. The selected financial data
for the Company set forth under the captions "Prospectus Summary--Financial
Information" and "Selected Financial Data" in the Prospectus Supplement has been
prepared on a basis consistent with the financial statements of the Company. No
other financial statements of the Company or
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any other entity are required by the Securities Act to be included in the
Registration Statement or the Prospectus.
(m) The Company is not, and upon consummation of the transactions
contemplated hereby will not be, subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended.
(n) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the Company's knowledge, is threatened or imminent
that would have a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
(o) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently employed
by them in connection with their respective businesses, and neither the Company
nor any such subsidiary has received any written notice of infringement of or
conflict with asserted rights of any third party with respect to any of the
foregoing which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would have a Material Adverse Effect, except as
described in or contemplated by the Prospectus.
(p) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are customary in the businesses in which they are engaged; and
neither the Company nor any such subsidiary has any reason to believe that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect, except as described in or contemplated by the Prospectus.
(q) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the
Prospectus.
(r) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a Material
Adverse Effect) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as described in or
contemplated by the Prospectus.
(s) Neither the Company nor any of its subsidiaries is in violation of any
federal or state law or regulation relating to their respective lending
activities except for any such violation
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of law or regulation which would not have a Material Adverse Effect or which is
described in or contemplated by the Prospectus.
(t) Except for the shares of capital stock of each of the subsidiaries
owned by the Company and its other subsidiaries, neither the Company nor any
such subsidiary owns any shares of stock or any other equity securities of any
corporation or has any equity interest in any firm, partnership, association or
other entity, except as described in or contemplated by the Prospectus.
(u) No event has occurred that will (i) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any agreement, instrument, franchise, License or
permit to which the Company or any of its subsidiaries is a party or by which
any of such corporations or their respective properties or assets may be bound,
except for such conflicts, breaches or defaults which would not have a Material
Adverse Effect, or (ii) violate or conflict with any provision of the
certificate of incorporation or bylaws of the Company or any of its subsidiaries
or any judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties or
assets.
(v) Each certificate signed by any officer of the Company and delivered to
the Representative or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company, and not by such officer in an
individual capacity, to each Underwriter as to the matters covered thereby.
2. Public Offering. The Company is advised by the Representatives that
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the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement has been entered into as
in the Representatives' judgment is advisable. The terms of the public offering
of the Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this Section,
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payment for the Offered Securities shall be made by certified or official bank
check or checks payable to the order of the Company in immediately available
funds at the time and place set forth in the Underwriting Agreement, upon
delivery to the Representatives for the respective accounts of the several
Underwriters of the Offered Securities, registered in such names and in such
denominations as the Representatives shall request in writing not less than two
full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Offered Securities to the
Underwriters duly paid.
4. Conditions to Closing. The several obligations of the Underwriters
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hereunder are subject to the following conditions:
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(a) Subsequent to the execution and delivery of the Underwriting Agreement
and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, that
is material and adverse and that makes it, in the judgment of the
Representatives, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Representatives shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in clause (a) (i) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date. The officer signing and
delivering such certificate may rely upon the best of his knowledge as to
proceedings threatened.
(c) The Representatives shall have received on the Closing Date an opinion
of Jenkens & Xxxxxxxxx, a Professional Corporation, counsel for the Company,
dated the Closing Date addressed to the Representatives and in form and
substance satisfactory to Underwriters' counsel, to the effect that:
(i) Each of the Company and its subsidiaries: (A) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; (B) is duly qualified
and in good standing as a foreign corporation in each jurisdiction where
the Company has certified to such counsel that it owns, leases or licenses
properties, maintains employees or conducts business, except for those
failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and (C) has all requisite corporate power
and authority to own, lease and license its respective properties and
conduct its business as described in the Registration Statement and the
Prospectus. All of the issued and outstanding capital stock of each
subsidiary of the Company has been duly and validly issued and is fully
paid and nonassessable and was not issued in violation of any statutory
preemptive rights or, to such counsel's knowledge, contractual preemptive
rights and is owned directly or indirectly by the Company, free and clear
of any lien,
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encumbrance, security interest or, to such counsel's knowledge, any claim,
restriction on transfer, shareholders' agreement, voting trust or other
defect of title whatsoever.
(ii) The authorized capital stock of the Company is as set forth in
the Registration Statement and the Prospectus. All of the outstanding
shares of common stock of the Company are duly and validly authorized and
issued, are fully paid and nonassessable and were not issued in violation
of or subject to any statutory preemptive rights or, to such counsel's
knowledge, contractual preemptive rights. The Offered Securities to be
delivered on the Closing Date have been duly and validly authorized and,
when delivered by the Company and paid for by the several Underwriters in
accordance with this Agreement, will be duly and validly issued, fully paid
and nonassessable and will not have been issued in violation of or subject
to any statutory preemptive rights or, to such counsel's knowledge,
contractual preemptive rights.
(iii) This Agreement has been duly and validly authorized, executed
and delivered by the Company.
(iv) To such counsel's knowledge, there is no legal or governmental
suit or proceeding or investigation before any court or before or by any
public, regulatory or governmental agency or body pending or threatened
against the Company or any of its subsidiaries or their business or
properties, which is of a character required to be disclosed in the
Registration Statement and the Prospectus that has not been disclosed
therein.
(v) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby by the Company do
not and will not (A) conflict with or result in a breach of any of the
terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, any material agreement, instrument, franchise, license or
permit certified to such counsel by an officer of the Company to which the
Company or any of its subsidiaries is a party or by which any of such
corporations or their respective properties or assets may be bound; (B)
violate or conflict with any provision of the articles of incorporation or
bylaws of the Company or any of its subsidiaries, or any statute, rule or
regulation of any court or any public, governmental or regulatory agency or
body having jurisdiction over the Company or any of its subsidiaries or any
of their respective properties or assets or, to the knowledge of such
counsel, any judgment, decree or order of any court or any public,
governmental or regulatory agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties or
assets; or (C) to such counsel's knowledge, require any consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets, except (in
the case of clause (C)
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above) for any such consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses and permits as may be
required by the NASD or under state securities or Blue Sky laws in
connection with the purchase and distribution of the Offered Securities by
the Underwriters (as to which such counsel need express no opinion) and
such as have been made or obtained under the Securities Act.
(vi) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the exhibits and the
financial statements and schedules and other financial or statistical data
included therein, as to which no opinion need be rendered) comply as to
form in all material respects within the requirements of the Securities
Act.
(vii) The Registration Statement has become effective under the
Securities Act, and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any post-
effective amendment thereof has been issued and no proceedings therefor
have been initiated or threatened by the Commission and all filings
required by Rule 424(b) under the Securities Act have been made within the
time periods required thereby.
(viii) The Offered Securities have been approved for listing, and the
Offered Securities to be sold under this Agreement to the Underwriters have
been duly authorized for listing, subject to notice of issuance, on the New
York Stock Exchange.
(ix) To such counsel's knowledge, other than as disclosed in the
Registration Statement and the Prospectus, no holders of securities of the
Company have rights which have not been satisfied or waived to the
registration of shares of capital stock or other securities of the Company
because of the filing of the Registration Statement by the Company, or the
offering contemplated thereby.
(x) To such counsel's knowledge, each of the Company and its
subsidiaries has obtained all Licenses as are necessary or required for the
ownership, leasing and operation of its properties and the conduct of its
business as now being conducted.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and representatives of the Company, representatives of
the independent public accountants for the Company and the Underwriters at which
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to materiality
to a large extent upon facts provided by officers and other representatives of
the Company), no facts have come to the attention of such counsel that lead such
counsel to believe that either the Registration Statement at the time it became
effective (including the information
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deemed to be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A(b), if applicable), or any amendment thereof made prior to
the Closing Date as of the date of such amendment, contained an untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus as of its date (or any amendment thereof or supplement thereto made
prior to the Closing Date as of the date of such amendment or supplement) and as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no belief or opinion with respect to the exhibits and the financial
statements and other financial and statistical data included therein).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, 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 they
deem proper, on certificates of responsible officers of the Company and
certificates or other written statements of officers of departments of various
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company and its subsidiaries, provided that copies of any
such statements or certificates shall be delivered to Underwriters' counsel.
The opinion of such counsel for the Company shall state that the opinion of any
such other counsel is in form satisfactory to such counsel and, in their
opinion, you and they are justified in relying thereon.
(d) The Representatives shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Representatives, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Prospectus.
5. Covenants of the Company. In further consideration of the agreements
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of the Underwriters herein contained, the Company covenants as follows:
(a) To furnish the Representatives, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
the Representatives may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Representatives a copy of each such
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proposed amendment or supplement and not to file any such proposed amendment or
supplement to which the Representatives reasonably object.
(c) If, during such period after the first date of the public offering of
the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist 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, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters, and to the dealers (whose names and
addresses the Representatives will furnish to the Company) to which Offered
Securities may have been sold by the Representatives on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus 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,
as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and to maintain such qualification for as long as the
Representatives shall reasonably request.
(e) To make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a twelve-
month period beginning on the first day of the first full fiscal quarter after
the date of this Agreement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder. If such fiscal quarter is the last fiscal quarter
of the Company's fiscal year, such earnings statement shall be made available
not later than 120 days after the close of the period covered thereby and in all
other cases shall be made available not later than 60 days after the close of
the period covered thereby.
(f) Whether or not any sale of Offered Securities is consummated, to pay
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Offered Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Offered Securities under securities or Blue Sky laws in
accordance with the provisions of Section 5(d), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky or Legal Investment
Memoranda, (v) the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto and of the Prospectus and any amendments or supplements thereto, and of
this Agreement and (vi) the fees and expenses, if any, incurred with respect to
any filing with the NASD.
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6. Indemnification and Contribution. (a) The Company agrees to indemnify
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and hold harmless each Underwriter and each person, if any, who controls such
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, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with investigating or defending any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make statements therein not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein;
provided, however, that the indemnity agreement contained in this paragraph (a)
with respect to a preliminary prospectus or amended preliminary prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages and liabilities purchased the Offered Securities which are the
subject thereof if the Prospectus corrected any such alleged untrue statement or
omission and if such Underwriter failed to send or give a copy of the Prospectus
to such person in connection with the confirmation of the sale of such Offered
Securities to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or 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, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto (including any omission or
alleged omission to include with such information a material fact required to be
stated therein or necessary to make statements therein not misleading).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named
12
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representatives, in the case of parties indemnified
pursuant to paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters bear
to the aggregate public offering price of the Offered Securities, in each case
as set forth in the table on the cover of the Prospectus Supplement. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective
13
obligations to contribute pursuant to this Section are several in proportion to
the respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities 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 remedies provided for in this Section 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.
7. Termination. This Agreement shall be subject to termination, by
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notice given by the Representatives to the Company, if (a) after the execution
and delivery of the Underwriting Agreement and prior to the 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 NASD, (ii) trading of any securities of 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 is material and adverse and (b) in the
case of any of the events specified in clauses (a)(i) through (iv), such event,
singly or together with any other such event, makes it, in the judgment of the
Representatives, impracticable to market the Offered Securities on the terms and
in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or more of
-----------------------
the Underwriters shall fail or refuse to purchase Offered Securities that it has
or they have agreed to purchase hereunder on such date, and the aggregate amount
of the Offered Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Offered Securities to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
amount of Offered Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate amount of Offered Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representatives may specify, to purchase the
14
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
amount of Offered Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section by an amount in
excess of one-ninth of such amount of Offered Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Offered Securities and the
aggregate amount of Offered Securities with respect to which such default occurs
is more than one-tenth of the aggregate amount of Offered Securities to be
purchased on such date, and arrangements satisfactory to the Representatives and
the Company for the purchase of such Offered Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case that
does not result in termination of this Agreement, either the Representatives or
the Company shall have the right to postpone the 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.
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, the Company will 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 disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
9. Representations and Indemnities to Survive. The respective indemnity
------------------------------------------
and contribution agreements and the representations, warranties and other
statements of the Company, its officers and the Underwriters set forth in this
Agreement will remain in full force and effect, regardless of any termination of
this Agreement, any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 6 and delivery of and payment for the Offered Securities.
10. Successors. This Agreement will inure to the benefit of and be
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binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 6, and no
other person will have any right or obligation hereunder.
11. Counterparts. The Underwriting Agreement may be signed in any
------------
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
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in accordance with the internal laws of the State of New York.
15
13. Headings. The headings of the sections of this Agreement have been
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inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
16
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
_____ _______________ _________
SCHEDULE A
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Securities:
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Principal Amounts or Numbers to be Purchased:
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Purchase Price:
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Delivery Dates:
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