Exhibit 1.04
PREFERRED SECURITIES
▇▇▇▇▇▇ BROTHERS HOLDINGS CAPITAL TRUST __
UNDERWRITING AGREEMENT
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Capital Trust __, a Delaware
statutory business trust (the "Trust"), proposes to issue and sell to you and
the other underwriters named in Schedule II hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representatives"), the aggregate
liquidation amount (the "Firm Securities") identified in Schedule I hereto of
the Trust's preferred securities (the "Preferred Securities") guaranteed (the
"Guarantee"; together with the Preferred Securities, the "Securities") by the
Company (as defined herein) to the extent set forth in the Guarantee Agreement
(the "Guarantee Agreement") identified in such Schedule I, to be entered into
between the Company and the guarantee trustee (the "Guarantee Trustee")
identified therein. In addition, the Trust proposes to grant to the Underwriters
an option to purchase up to an additional aggregate liquidation amount of the
Preferred Securities identified in Schedule I hereto on the terms and for the
purposes set forth in Section 3 hereof (the "Option Securities"). The Firm
Securities and the Option Securities, if purchased, are hereinafter collectively
called "Preferred Securities". ▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware
corporation (the "Company"), will be the owner of all of the beneficial
ownership interests represented by common securities (the "Common Securities")
of the Trust. Concurrently with the issuance of the Securities and the Company's
purchase of all of the Common Securities of the Trust, the Trust will invest the
proceeds of each in the Company's debt securities identified in Schedule I
hereto (the "Debentures"). The Debentures are to be issued under the indenture
(the "Indenture") identified in such Schedule I, between the Company and the
indenture trustee (the "Indenture Trustee") identified therein. If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms.
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1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations promulgated thereunder (the "Rules"), and
has carefully prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the
file number of which is set forth in Schedule I hereto), which has
become effective, for the registration of the Securities under the
Securities Act. The registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1)(x)
under the Securities Act and complies in all other material respects
with such rule. The Company proposes to file with the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424") a supplement
to the form of prospectus included in the registration statement
relating to the initial offering of the Securities and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth therein. The term "Registration Statement" means the registration
statement, as amended at the date of this Agreement, including the
exhibits thereto, financial statements, and all documents incorporated
therein by reference pursuant to Item 12 of Form S-3 (the "Incorporated
Documents"), and such prospectus as then amended, including the
Incorporated Documents, is hereinafter referred to as the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented), is hereinafter
called the "Final Prospectus". Any preliminary form of the Basic
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus". Any reference herein to
the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to and
include the Incorporated Documents which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act"), on or before the
date of this Agreement or the issue date of the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any Incorporated Documents under the Exchange
Act after the date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
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(b) As of the date hereof, when the Final Prospectus is first
filed with the Commission pursuant to Rule 424, when, before either
Closing Date (hereinafter defined), any amendment to the Registration
Statement becomes effective, when, before either Closing Date, any
Incorporated Document is filed with the Commission, when any supplement
to the Final Prospectus is filed with the Commission and at each
Closing Date, the Registration Statement, the Final Prospectus and any
such amendment or supplement will comply in all material respects with
the applicable requirements of the Securities Act and the Rules, and
the Incorporated Documents will comply in all material respects with
the requirements of the Exchange Act or the Securities Act, as
applicable, and the rules and regulations adopted by the Commission
thereunder; on the date hereof and on each Closing Date, the Indenture
shall have been qualified under and will comply in all material
respects with the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"); on the date it became effective, the Registration
Statement did not, and, on the date that any post-effective amendment
to the Registration Statement becomes effective, the Registration
Statement as amended by such post-effective amendment did not or will
not, as the case may be, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; on the date
the Final Prospectus is filed with the Commission pursuant to Rule 424
and on each Closing Date, the Final Prospectus, as it may be amended or
supplemented, will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
are made, not misleading; and on said dates, the Incorporated Documents
will comply in all material respects with the applicable provisions of
the Exchange Act and rules and regulations of the Commission
thereunder, and, when read together with the Final Prospectus, or the
Final Prospectus as it may be then amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are
made, not misleading; PROVIDED THAT the foregoing representations and
warranties in this paragraph (b) shall not apply to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
on behalf of any Underwriter specifically for use in connection with
the preparation of the Registration Statement or the Final Prospectus,
as they may be amended or supplemented, or to any statements in or
omissions from the statements of eligibility and qualification on Form
T-1 of the Indenture Trustee, the Property Trustee (the "Property
Trustee") identified in
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Schedule I hereto and the Guarantee Trustee under the Trust Indenture
Act (the "Forms T-1").
(c) The Basic Prospectus and any Interim Prospectus, as of
their respective dates, complied in all material respects with the
requirements of the Securities Act and of the Rules and did not include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
Commission has not issued an order preventing or suspending the use of
the Basic Prospectus or any Interim Prospectus.
(d) The nationally recognized firm of independent public
accountants whose report appears in the Company's most recent Annual
Report on Form 10-K, which is incorporated by reference in the Final
Prospectus, are independent public accountants as required by the
Securities Act and the Rules.
(e) In the event that a report of a nationally recognized firm
of independent public accountants regarding historical financial
information with respect to any entity acquired by the Company is
required to be incorporated by reference in the Final Prospectus, such
independent public accountants were independent public accountants, as
required by the Securities Act and the Rules, during the period of
their engagement to examine the financial statements being reported on
and at the date of their report.
(f) The audited consolidated financial statements of the
Company in the Final Prospectus and the Registration Statement present
fairly on a consolidated basis the financial position, the results of
operations, changes in common stock and other stockholder's equity and
cash flows of the Company and its subsidiaries, as of the respective
dates and for the respective periods indicated, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The unaudited consolidated financial
statements of the Company, if any, included in the Final Prospectus and
the Registration Statement and the related notes are true, complete and
correct, subject to normally recurring changes resulting from year-end
audit adjustments, and have been prepared in accordance with the
instructions to Form 10-Q.
(g) Except as described in or contemplated by the Registration
Statement and the Final Prospectus, there has not been any material
adverse change in or any adverse
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development which materially affects the business, properties,
financial condition or results of the Company or the Company and its
subsidiaries taken as whole, from the dates as of which information is
given in the Registration Statement and Final Prospectus.
(h) This Agreement has been duly and validly authorized,
executed and delivered by the Company; the Guarantee Agreement has been
duly and validly authorized by the Company and, when duly executed and
delivered by the proper officers of the Company (assuming due execution
and delivery by the Guarantee Trustee) will constitute a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms; the Indenture has been duly and
validly authorized, executed and delivered by the Company and (assuming
due execution and delivery by the Indenture Trustee) constitutes a
valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms; and the Debentures have been
duly and validly authorized, and, when validly authenticated, issued
and delivered in accordance with the Indenture against payment of the
purchase price therefor as provided in this Agreement, will be validly
issued and outstanding obligations of the Company entitled to the
benefits of the Indenture; and the Debentures and the Guarantee, when
issued and delivered, will conform to the descriptions thereof
contained in the Final Prospectus.
(i) The Company does not have any subsidiaries having business
or properties that are material to the business and properties of the
Company and its subsidiaries taken as a whole with the exception of
▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇") and the possible exception of ▇▇▇▇▇▇
Commercial Paper Inc. (the "Named Subsidiaries"). Neither the Company
nor either of the Named Subsidiaries is in violation of its corporate
charter or by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would be material
to the Company and its subsidiaries taken as a whole. The execution,
delivery and performance of this Agreement, the Guarantee Agreement,
the Indenture and the Debentures by the Company, the purchase of the
Common Securities by the Company from the Trust, and the consummation
by the Company of the transactions contemplated hereby (the "Company
Transactions") will not violate, result in the creation or imposition
of any material lien, charge or encumbrance upon any of the assets of
the Company or any of its subsidiaries pursuant to the terms of, or
constitute a default under, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Company, the Named Subsidiaries or their property. Except as set
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forth in the Final Prospectus or as required by the Securities Act, the
Exchange Act, the Trust Indenture Act and applicable state securities
laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the Company
Transactions.
(j) The Company and the Named Subsidiaries have been duly
organized, are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to
do business and in good standing as foreign corporations and are fully
registered as a broker-dealer, broker, dealer or investment advisor, as
the case may be, in each jurisdiction in which their respective
ownership of property or the conduct of their respective businesses
requires such qualification or registration and in which the failure to
qualify or register would be reasonably likely, individually or in the
aggregate, to have a material adverse effect on the business, condition
or properties of the Company and its subsidiaries taken as a whole.
Each of the Company and its Named Subsidiaries holds all material
licenses, permits, and certificates from governmental authorities
necessary for the conduct of its business and owns, or possesses
adequate rights to use, all material rights necessary for the conduct
of such business and has not received any notice of conflict with the
asserted rights of others in respect thereof; and each of the Company
and its Named Subsidiaries has the corporate power and authority
necessary to own or hold its properties and to conduct the businesses
in which it is engaged. Except as may be disclosed in the Registration
Statement and the Final Prospectus, all outstanding shares of capital
stock of the Named Subsidiaries are owned by the Company, directly or
indirectly through subsidiaries, free and clear of any lien, pledge and
encumbrance or any claim of any third party and are duly authorized,
validly issued and outstanding, fully paid and non-assessable.
(k) Except as described in the Registration Statement and the
Final Prospectus, there is no material litigation or governmental
proceeding pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries which might reasonably
be expected to result in any material adverse change in the business,
properties, financial condition or results of operations of the Company
and its subsidiaries taken as a whole or which is required to be
disclosed in the Registration Statement and the Final Prospectus.
(l) The certificates delivered pursuant to
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paragraph (h) of Section 7 hereof and all other documents delivered by
the Company or its representatives in connection with the issuance and
sale of the Securities were on the dates on which they were delivered,
or will be on the dates on which they are to be delivered, in all
material respects true and complete.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
AND THE TRUST. The Company and the Trust, jointly and severally, represent,
warrant and agree that:
(a) The Trust has been duly created, is validly existing as a
statutory business trust and in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Business Trust Act") with
the trust power and authority to own property and conduct its business
as described in the Registration Statement and the Final Prospectus,
and has conducted and will conduct no business other than the
transactions contemplated by this Agreement as described in the
Registration Statement and the Final Prospectus; the Trust is not and
will not be a party to or bound by any agreement or instrument other
than this Agreement, the Declaration of Trust of the Trust identified
in Schedule I hereto, among the Company, as Sponsor, and the regular
trustees identified in Schedule I hereto (the "Regular Trustees"), the
Property Trustee and the Delaware Trustee identified in Schedule I
hereto (the "Delaware Trustee" and, together with the Regular Trustees
and the Property Trustee, the "Trustees"), and the Amended and Restated
Declaration of Trust of the Trust (the "Declaration") identified in
Schedule I hereto, among the Company, as Sponsor, and the Trustees; the
Trust has no and will not have any liabilities or obligations other
than those arising out of the transactions contemplated by this
Agreement, such Declaration of Trust and the Declaration and described
in the Final Prospectus; and the Trust is not a party to or subject to
any action, suit or proceeding of any nature.
(b) The Declaration is duly and validly authorized and, when
duly executed and delivered by the Company, as Sponsor, and the
Trustees, and (assuming due authorization, execution and delivery of
the Declaration by the Property Trustee and the Delaware Trustee), will
constitute a valid and legally binding agreement of the Company and the
Trust, and will conform to the description thereof contained in the
Final Prospectus.
(c) All of the outstanding beneficial ownership interests in
the Trust have been, and the Preferred Securities and the Common
Securities, upon issuance and delivery and payment therefor in the
manner described
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herein, will be, duly authorized, validly issued and outstanding,
fully paid and non-assessable and will conform to the descriptions of
the Preferred Securities and the Common Securities contained in the
Final Prospectus.
(d) This Agreement has been duly and validly authorized,
executed and delivered by the Trust.
(e) The execution, delivery and performance of this Agreement,
the Declaration, the Common Securities and the Preferred Securities by
the Trust, the purchase of the Debentures by the Trust from the
Company, the distribution of the Debentures upon the liquidation of the
Trust in the circumstances contemplated by the Declaration and
described in the Final Prospectus, and the consummation by the Trust of
the transactions contemplated hereby and by the Declaration (the "Trust
Transactions") will not result in a violation of any order, rule or
regulation of any court or governmental agency having jurisdiction over
the Trust or its property. Except as set forth in the Final Prospectus
or as required by the Securities Act, the Exchange Act, the Trust
Indenture Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the Trust Transactions.
(f) The Trust is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended.
3. SALE AND PURCHASE OF THE PREFERRED SECURITIES.
(a) The Trust agrees to sell to each Underwriter, and each
Underwriter, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein stated, agrees to purchase from the Trust, at a purchase price
equal to 100% of the liquidation amount of the Preferred Securities,
the aggregate liquidation amount of Firm Securities set forth opposite
the name of such Underwriter in Schedule II hereto. The obligations of
the Underwriters under this Agreement are several and not joint.
(b) In addition, the Trust grants to the Underwriters, for a
period of 30 days from the date hereof, an option to purchase from the
Trust, at a purchase price equal to 100% of the liquidation amount of
the Preferred Securities, up to an additional aggregate liquidation
amount of Option Securities indicated in Schedule I hereto. Such option
is granted solely for the purpose of covering over-allotments in the
sale of Firm Securities and is exercisable as provided in Section 4
hereof. Option Securities shall be purchased severally for the account
of the Underwriters in
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proportion to the liquidation amounts of Firm Securities set forth
opposite the name of such Underwriters in Schedule II hereto. The
respective purchase obligations of each Underwriter with respect to
the Option Securities shall be adjusted by the Representatives so that
no Underwriter shall be obligated to purchase Option Securities other
than in a liquidation amount of $25 or an integral multiple thereof.
(c) As compensation to the Underwriters, the Company shall, on
the First Closing Date and the Second Closing Date (as defined in
Section 4 hereof) pay to the Representatives for the accounts of the
several Underwriters commissions (as described in Schedule I hereto) on
the aggregate liquidation amount of the Preferred Securities sold by
the Trust on such Closing Date.
4. DELIVERY AND PAYMENT. (a) Delivery by the Trust of the Firm
Securities to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire transfer in
federal (same day) funds to such account as the Company shall specify on behalf
of the Trust, shall take place at the office, on the date and at the time
specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
10 hereof (such date and time of delivery and payment for the Firm Securities
being herein called the "First Closing Date").
(b) The Firm Securities will be in the form of one or more
global Firm Securities registered in the name of Cede & Co., as nominee of the
Depository Trust Company ("DTC").
(c) At any time on or before the thirtieth day after the date
hereof, the option granted in Section 3 may be exercised by written notice being
given to the Trust by the Representatives. Such notice shall set forth the
aggregate liquidation amount of Option Securities as to which the option is
being exercised and the date and time, as determined by the Representatives,
when the Option Securities are to be delivered; PROVIDED, HOWEVER, that this
date and time shall not be earlier than the First Closing Date nor earlier than
the third business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option Securities are
delivered are sometimes referred to as the "Second Closing Date" and the First
Closing Date and the Second Closing Date are sometimes referred to as a "Closing
Date".
(d) Delivery by the Trust of the Option Securities to
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the Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by wire transfer in federal (same day)
funds to such account as the Company will specify on behalf of the Trust, shall
take place at the office and at the time agreed to in advance by the
Underwriters and the Company, on the Second Closing Date, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 10 hereof.
(e) The Option Securities will be in the form of one or more
global Option Securities registered in the name of Cede & Co., as nominee of
DTC.
(f) On the First Closing Date and the Second Closing Date, the
Company shall pay, or cause to be paid, the commissions payable on such Closing
Date to the Representatives for the accounts of the Underwriters under Section 3
by wire transfer in federal (same day) funds to such account as the
Representatives shall specify.
5. OFFERING BY UNDERWRITERS. The Company and the Trust hereby
confirm that the Underwriters and dealers have been authorized to distribute or
cause to be distributed any Interim Prospectus and are authorized to distribute
the Final Prospectus (as from time to time amended or supplemented if the
Company furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Preferred Securities has been terminated, the Representatives will so
advise the Company and the Trust.
6. AGREEMENTS. Each of the Company and the Trust agrees with
the several Underwriters:
(a) To cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 as required thereby and promptly to
advise the Representatives (A) when the Final Prospectus shall have
been filed with the Commission pursuant to Rule 424, (B) when any
amendment to the Registration Statement relating to the Securities
shall have become effective, (C) of any request by the Commission for
any amendment of the Registration Statement, the Final Prospectus, the
Basic Prospectus or any Interim Prospectus, or for any additional
information, (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
qualification of the Declaration, the Guarantee Agreement or the
Indenture or the institution or threatening of any proceedings for that
purpose and (E) of the receipt by the Company or the Trust of any
notification with respect to the
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suspension of the qualification of the Securities or the Debentures
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; after the date of this Agreement and
prior to the termination of the offering of these Preferred
Securities, not to file any amendment of the Registration Statement or
amendment or supplement to the Final Prospectus (except an amendment
or supplement to the Final Prospectus that is deemed to be
incorporated by reference in the Final Prospectus pursuant to Item 12
of Form S-3) without the consent of the Representatives and to use its
best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof; prior to
receipt of the advice to be given by the Representatives pursuant to
Section 5, not to file any document that would be deemed to be
incorporated by reference in the Final Prospectus pursuant to Item 12
of Form S-3 without delivering to the Representatives a copy of the
document proposed to be so filed, such delivery to be made at least
twenty-four hours prior to such filing, and to consult with the
Representatives as to any comments which the Representatives make in a
timely manner with respect to the document so delivered.
(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time when a prospectus relating to the Securities
is required to be delivered under the Securities Act, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would 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, or if it shall be necessary at any time to
amend or supplement the Final Prospectus to comply with the Securities
Act or the Rules, to promptly prepare and file with the Commission an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance and to use its best
efforts to cause any amendment of the Registration Statement containing
an amended Final Prospectus to be made effective as soon as possible.
(c) To deliver to the Representatives, without charge, (i)
signed copies of the Registration Statement relating to the Securities
and of any amendments thereto (including all exhibits filed with, or
incorporated by reference in, any such document) and (ii) as many
conformed copies of the Registration Statement and of any amendments
thereto which shall become effective on or before each Closing Date
(excluding exhibits) as the Representatives may reasonably
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request.
(d) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, to deliver, without charge to
the Representatives and to Underwriters and dealers, at such office or
offices as the Representatives may designate, as many copies of the
Basic Prospectus, any Interim Prospectus and the Final Prospectus as
the Representatives may reasonably request.
(e) To make generally available to the Company's security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its
subsidiaries, covering a period of at least 12 months beginning after
the date the Final Prospectus is filed with the Commission pursuant to
Rule 424, which will satisfy the provisions of Section 11(a) of the
Securities Act.
(f) To furnish such information, execute such instruments and
take such actions as may be required to qualify the Securities and the
Debentures for offering and sale under the laws of such jurisdictions
as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of
the Preferred Securities; PROVIDED, HOWEVER, that neither the Company
nor the Trust shall be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
(g) So long as any Preferred Securities are outstanding, to
furnish or cause to be furnished to the Representatives copies of all
annual reports and current reports filed with the Commission on Forms
10-K, 10-Q and 8- K, or such other similar forms as may be designated
by the Commission.
(h) If the Company or the Trust has applied for the listing of
the Preferred Securities on the New York Stock Exchange Inc. (the
"NYSE"), to use its best efforts to cause such listing to be approved
as soon as possible.
(i) For a period beginning at the time of execution of this
Agreement and ending 30 business days thereafter, without the prior
consent of ▇▇▇▇▇▇, not to directly or indirectly offer, sell, offer to
sell, grant any option for the sale of or otherwise dispose of any
Preferred Securities or Debentures or any securities convertible or
exchangeable into, or exercisable for Preferred Securities or
Debentures, or any debt securities substantially similar to the
Debentures or any equity securities substantially similar to
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the Preferred Securities.
(j) To use its best efforts to do and perform all things to be
done and performed hereunder prior to each Closing Date and to satisfy
all conditions precedent to the delivery of the Preferred Securities to
be purchased hereunder.
(k) To take such steps as shall be necessary to ensure that
neither the Company nor the Trust shall become subject to registration
as an "investment company" under the Investment Company Act of 1940, as
amended.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of the Company and the Trust contained herein as of the date hereof and
each Closing Date, to the accuracy of any material statements made in any
certificates, opinions, affidavits, written statements or letters furnished to
the Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel")
pursuant to this Section 7, to the performance by the Company and the Trust of
their respective obligations hereunder and to the following additional
conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 not later than 5:00 p.m., New York City
time, on the second business day following the date of this Agreement
or such later date and time as shall be consented to in writing by the
Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, or suspending the
qualification of the Declaration, the Guarantee Agreement or the
Indenture, shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Final Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the
Representatives.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there
shall not have been any change or decrease specified in the letter or
letters referred to in paragraphs (h) or (i) of this Section 7 which,
in the judgment of the Representatives, makes it impracticable or
inadvisable to proceed with the offering and delivery of the Preferred
Securities as contemplated by the Registration
15
Statement and the Final Prospectus.
(d) The Company shall have furnished to the Representatives
the opinion of a Deputy General Counsel or the Chief Legal Officer for
the Company, dated the applicable Closing Date, to the effect that:
(i) The Company has been duly organized and is
validly existing and in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate its properties and to
conduct its business as described in the Final Prospectus.
(ii) The statements made in the Final Prospectus
under the captions "Description of Securities", "Certain Terms
of the Preferred Securities", "Certain Term of the Junior
Subordinated Debentures", "Relationship Among the Preferred
Securities, the Junior Subordinated Debentures and the
Guarantee", "Description of Debt Securities", "Description of
Guarantees" and "Description of Offered Preferred Stock",
insofar as such statements purport to constitute summaries of
the terms of the Preferred Securities, the Debentures and the
Guarantee, constitute accurate summaries of the terms of the
Preferred Securities, the Debentures and the Guarantee in all
material respects.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms; and the Debentures have been duly
authorized, executed and issued by the Company, and assuming
due authentication by the Indenture Trustee and upon payment
and delivery in accordance with this Agreement, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture; and the Guarantee
Agreement has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and
delivery by the Guarantee Trustee, will constitute a legal,
valid and binding obligation of the Company; provided however,
that the foregoing is subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and by an
implied covenant of good faith and fair dealing.
16
(iv) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated by this
Agreement, except for (1) such consents, approvals,
authorizations or orders as have been obtained under the
Securities Act and such as may be required under the Exchange
Act and the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters, and (2) the qualification of the Indenture, the
Declaration and the Guarantee Agreement under the Trust
Indenture Act, which has been obtained.
(v) Such counsel does not know of any contracts
or other documents which are required to be filed as exhibits
to the Registration Statement by the Securities Act or by the
Rules which have not been filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules.
(vi) To the best of such counsel's knowledge,
neither the Company nor either of its Named Subsidiaries is in
violation of its corporate charter or by-laws, or in default
under any material agreement, indenture or instrument known to
such counsel, the effect of which violation or default would
be material to the Company and its subsidiaries taken as a
whole.
(vii) This Agreement and the Declaration have been
duly authorized, executed and delivered by the Company; the
execution, delivery and performance of this Agreement, the
Declaration, the Indenture and the Guarantee Agreement
(collectively the "Transaction Documents") by the Company and
the Trust will not conflict with, or result in the creation or
imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or its Named Subsidiaries
pursuant to the terms of, or constitute a default under, any
material agreement, indenture or instrument known to such
counsel and to which the Company or either of its Named
Subsidiaries is a party or is bound, or result in a violation
of the corporate charter or by-laws of the Company or either
of its Named Subsidiaries or any order, rule or regulation
known to such counsel of any court or governmental agency
having jurisdiction over the Company, its Named Subsidiaries
or any of their respective properties, the effect of which
would be material to the Company and its subsidiaries taken as
a whole.
(viii) The Registration Statement has become
effective under the Securities Act, and, to the best of
17
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by
the Commission.
(ix) The Registration Statement, the Final Prospectus
and each amendment thereof or supplement thereto (except that
no opinion need be expressed as to the financial statements or
other financial or statistical data or the Forms T-1 included
or incorporated by reference therein) comply as to form in all
material respects with the requirements of the Securities Act
and the Rules.
(x) If the Preferred Securities are to be listed on
the NYSE, authorization therefor has been given, subject to
official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect
to the Preferred Securities with the NYSE, and such counsel
has no reason to believe that the Preferred Securities will
not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution.
(xi) Each of the Named Subsidiaries is a duly
organized and validly existing corporation in good standing
under the laws of the jurisdiction of its incorporation with
all requisite corporate power and authority to own and operate
its properties and to conduct its business as described in the
Final Prospectus. Each of the Company and its Named
Subsidiaries is duly qualified to do business as a foreign
corporation, is in good standing and is duly registered as a
broker-dealer, broker, dealer or investment advisor, as the
case may be, in each jurisdiction in which the nature of the
business conducted by it or in which the ownership or holding
by lease of the properties owned or held by it require such
qualification or registration and where the failure to so
qualify or register would have a material adverse effect on
the Company and its subsidiaries taken as a whole.
(xii) All the outstanding shares of capital stock of
the Company's Named Subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable
and, except for directors' qualifying shares, are owned by the
Company or a subsidiary of the
18
Company free and clear of any claims, liens, encumbrances and
security interests.
(xiii) Such counsel does not know of any litigation
or any governmental proceeding pending or threatened against
the Company or any of its subsidiaries which would affect the
subject matter of this Agreement or is required to be
disclosed in the Final Prospectus which is not disclosed and
correctly summarized therein.
(xiv) To such counsel's knowledge, the Trust is not a
party to or otherwise bound by any agreement other than those
described in the Final Prospectus.
(xv) The Trust is not subject to registration as an
"investment company" under the Investment Company Act of 1940,
as amended.
Such opinion shall also contain a statement that although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except as to those matters
stated in paragraph (ii) of such opinion), such counsel has no reason to believe
that (i) the Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (ii) the Final Prospectus contains any untrue
statement of a material fact or omits 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 (except that no opinion need be expressed
as to the financial statements or other financial or statistical data or the
Forms T-1 included or incorporated by reference therein).
In rendering such opinion, such counsel may rely upon opinions
of local counsel satisfactory to the Representatives for matters not governed by
New York law and may rely as to matters of fact, to the extent he or she deems
proper, upon certificates or affidavits of officers of the Company, the
Trustees, the Guarantee Trustee or the Indenture Trustee and public officials.
Such counsel may rely on a certificate of the Indenture Trustee and the
Guarantee Trustee with respect to the execution of the Debentures and the
Guarantee, respectively, by the Company, the authentication of the Debentures by
the Indenture Trustee, and the execution of the Guarantee by the Guarantee
Trustee.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for
the Company and the Trust, shall have furnished to the Representatives
its opinion, on certain matters of Delaware law relating to the
validity of the Preferred
19
Securities, dated the applicable Closing Date, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Trust Act with the business trust power and authority
to own property and to conduct its business as described in
the Final Prospectus and to enter into and perform its
obligations under each of this Agreement, the Preferred
Securities and the Common Securities.
(ii) The Common Securities have been duly authorized
by the Declaration and, when issued and delivered by the Trust
to the Company against payment therefor as described in the
Declaration and the Final Prospectus, will be validly issued
and undivided beneficial ownership interests in the assets of
the Trust; under the Delaware Trust Act and the Declaration
the issuance of the Common Securities is not subject to
preemptive or other similar rights.
(iii) The Preferred Securities have been duly
authorized by the Declaration and, when issued and delivered
against payment of the consideration as set forth in the
Declaration and the Final Prospectus, the Preferred Securities
will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided
beneficial ownership interests in the Trust, the holders of
the Preferred Securities will be entitled to the benefits of
the Declaration (subject to the limitations set forth in
clause (v) below) and will be entitled to the same limitation
of personal liability under Delaware law as extended to
stockholders of private corporations for profit (such counsel
may note that the holders of Preferred Securities will be
required to make payment or provide indemnity or security as
set forth in the Declaration).
(iv) All necessary trust action has been taken to
duly authorize the execution and delivery by the Trust of this
Agreement.
(v) Assuming the Declaration has been duly authorized
by the Company and has been duly executed and delivered by the
Company and the Regular Trustees, and assuming due
authorization, execution and delivery of the Declaration by
the Property Trustee and the Delaware Trustee, the Declaration
constitutes a valid
20
and binding obligation of the Company and the Regular
Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms; provided however, that
the foregoing is subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally, general equitable principles including
applicable law relating to fiduciary duties (whether
considered in a proceeding in equity or at law) and public
policy as to rights of indemnification and contribution.
(vi) The issuance and sale by the Trust of the
Preferred Securities, the purchase by the Trust of the
Debentures, the execution, delivery and performance by the
Trust of this Agreement, the consummation by the Trust of the
transactions contemplated by this Agreement and compliance by
the Trust with its obligations thereunder will not violate (i)
any of the provisions of the Certificate of Trust or the
Declaration or (ii) any Delaware law or administrative
regulation applicable to the Trust.
(vii) Assuming that the Trust derives no income from
or connected with services provided within the State of
Delaware and has no assets, activities (other than having a
Delaware Trustee as required by the Delaware Trust Act and the
filing of documents with the Secretary of State of Delaware)
or employees in the State of Delaware, no filing with, or
authorization, approval, consent, license, order,
registration, qualification or decree of, any Delaware court
or Delaware governmental authority or agency (other that as
may be required under the securities or blue sky laws of the
State of Delaware, as to which such counsel need express no
opinion) is necessary or required in connection with the due
authorization, execution and delivery of this Agreement or the
offering, issuance, sale or delivery of the Preferred
Securities.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the law of the State of Delaware.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special tax counsel to the
Company and the Trust, shall have furnished to the Representatives its opinion,
dated the applicable Closing Date, to the effect that:
(i) Under current law and assuming full compliance with the
terms of the Declaration and based upon certain facts and assumptions
set forth in such opinion the Trust will be characterized as a grantor
trust for United States
21
federal income tax purposes and not as an association taxable as a
corporation;
(ii) Under current law and based on certain representations,
facts and assumptions set forth in the opinion, the Debentures will be
classified as indebtedness for United States federal income tax
purposes; and
(iii) Subject to the qualifications set forth in the opinion
and the Final Prospectus, the statements made in the Final Prospectus
under the caption "Certain United States Federal Income Tax
Consequences" insofar as they purport to constitute summaries of
matters of United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries of the
matters described therein in all material respects.
(g) The Representatives shall have received from the
Underwriters' Counsel such opinion or opinions, dated the applicable Closing
Date, with respect to the issuance and sale of the Preferred Securities, the
Guarantee, the Debentures, the Registration Statement, the Final Prospectus and
other related matters as the Representatives may reasonably require, and the
Company and the Trust shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Vice President and its Chief Financial Officer or its Treasurer,
dated the applicable Closing Date, to the effect that, to the best of their
knowledge after due inquiry:
(i) The representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of such Closing Date with the same effect
as if made on such Closing Date, and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such
Closing Date.
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain
any untrue statement of a material fact or omit
22
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (y)
the Final Prospectus does not contain any untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, and (z) since the effective date of
the Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(i) The Trust shall have furnished to the Representatives a
certificate of its Regular Trustees, dated the applicable Closing Date, to the
effect that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the
Trust in this Agreement are true and correct in all material
respects on and as of such Closing Date with the same effect
as if made on such Closing Date, and the Trust has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such
Closing Date.
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, (y) the Final
Prospectus does not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading, and (z) since the effective date of the
Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(j) At each Closing Date, a nationally recognized firm of
independent public accountants shall have furnished to the Representatives a
letter, dated the day of such Closing Date, in form and substance satisfactory
to the Representatives, which states in effect that:
23
(i) In their opinion, any consolidated financial
statements of the Company and its subsidiaries, and the
supporting schedules, included in the Registration Statement
and the Final Prospectus and audited by them comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited
consolidated financial statements of the Company and its
subsidiaries, if any, included in the Registration Statement
and the Final Prospectus and of the latest unaudited
consolidated financial statements made available by the
Company and ▇▇▇▇▇▇, carrying out certain specified procedures
(but not an audit in accordance with generally accepted
auditing standards), a reading of the minutes of the meetings
of the directors of the Company, and inquiries of certain
officials of the Company and its subsidiaries, who have
responsibility for financial and accounting matters of the
Company and its subsidiaries, as to transactions and events
subsequent to the date of the most recent audited consolidated
financial statements included in the Registration Statement
and the Final Prospectus, nothing came to their attention that
caused them to believe that:
(A) any material modifications should be
made to the unaudited consolidated financial
statements of the Company and its subsidiaries, if
any, included in the Registration Statement and the
Final Prospectus and not covered by their letter
delivered pursuant to paragraph (i) of this Section
7, for them to be in conformity with generally
accepted accounting principles; and such financial
statements do not comply as to form in all material
respects with the applicable accounting requirements
of the Securities Act and the published instructions,
rules and regulations thereunder.
(B) the unaudited capsule information of the
Company and its subsidiaries, if any, included in the
Registration Statement and the Final Prospectus does
not agree with the amounts set forth in the unaudited
consolidated financial statements of the Company from
which it was derived or was not determined on a basis
substantially consistent with that of the
24
corresponding financial information in the latest
audited financial statements of the Company included
in the Registration Statement and the Final
Prospectus.
(C)(I) as of the latest date as of which the
Company and its subsidiaries have monthly financial
statements, there was any decrease in the capital
stock, additional paid-in capital or retained
earnings, or increase in long-term indebtedness of
the Company and its subsidiaries, as compared with
the amounts shown in the most recent consolidated
statement of financial condition of the Company and
its subsidiaries included in the Registration
Statement and the Final Prospectus, (II) with respect
to the period subsequent to the date of the most
recent financial statements included in the
Registration Statement and the Final Prospectus and
extending through the latest date as of which the
Company and its subsidiaries have monthly financial
statements, there was a consolidated net loss or
(III) with respect to the amounts of net capital or
excess net capital of ▇▇▇▇▇▇ determined pursuant to
Commission Rule 15c3-1 and shown in the most recent
financial statement of ▇▇▇▇▇▇ filed pursuant to
Commission Rule 17a-5, there has been any decrease in
such amounts as compared with the amounts shown in
the most recent consolidated financial statements
included in the Registration Statement and the Final
Prospectus;
(D) as of a specified date not more than
three business days prior to the date of the letter,
there was any decrease in the capital stock or
additional paid-in capital, or increase in long-term
indebtedness of the Company and its subsidiaries as
compared with the amounts shown in the most recent
consolidated statement of financial condition of the
Company and its subsidiaries included in the
Registration Statement and the Final Prospectus;
except in all instances for increases or decreases set forth
in such letter, in which case the letter shall be accompanied
by an explanation by the Company as to the significance
thereof, unless said explanation is not deemed necessary by
the Representatives.
(iii) If pro forma financial statements are included
in the Registration Statement or the Final Prospectus and are
not covered by their letter delivered pursuant to paragraph
(i) of this Section 7,
25
(x) they have read such pro forma financial statements, (y)
they have made inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
of the Company as to the basis for their determination of the
pro forma adjustments and whether such pro forma financial
statements comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X and (z) they have proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts; and as a result thereof, nothing came to their
attention that caused them to believe that such pro forma
financial statements do not so comply with Rule 11-02 of
Regulation S-X and that such pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements.
(iv) To the extent not covered by their letter
delivered pursuant to paragraph (i) of this Section 7, they
have performed certain other specified procedures as a result
of which they determined that certain information of an
accounting, financial or statistical nature (which is
expressed in dollars, or percentages derived from dollar
amounts, and has been obtained from the general accounting
records of the Company) set forth in the Registration
Statement, as amended, and the Final Prospectus, as amended or
supplemented, and in Exhibit 12 to the Registration Statement,
including specified information, if any, included or
incorporated from the Company's Annual Report on Form 10-K
incorporated therein or specified information, if any,
included or incorporated from any of the Company's Quarterly
Reports on Form 10-Q or its Current Reports on Form 8-K
incorporated therein, agrees with the accounting records of
the Company and its subsidiaries or computations made
therefrom, excluding any questions of legal interpretation.
(k) Subsequent to the execution of this Agreement, there shall
not have been any decrease in the ratings of any of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Service, Inc.
or Standard & Poor's Corporation.
(l) Prior to each Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives or Underwriters' Counsel may reasonably
request.
If any of the conditions specified in this Section 7
26
shall not have been fulfilled when and as required by this Agreement, or if any
of the certificates or opinions furnished to the Representatives or
Underwriters' Counsel pursuant to this Section 7 shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and to Underwriters' Counsel, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, each
Closing Date by the Representatives. Notice of such cancellation shall be given
to the Company in writing, or by telegraph confirmed in writing.
8. EXPENSES. (a) Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the Company
will pay all costs and expenses incident to the performance of the obligations
of the Company and the Trust hereunder, including, without limiting the
generality of the foregoing, all costs, taxes and expenses incident to the
issuance, sale and delivery of the Preferred Securities to the Underwriters, all
fees and expenses of the Company's counsel and accountants, all costs and
expenses incident to the preparing, printing and filing of the Registration
Statement (including all exhibits thereto), any Interim Prospectus, the Basic
Prospectus, the Final Prospectus and any amendments thereof or supplements
thereto and the Declaration, the Guarantee Agreement and the Indenture, and the
rating of the Preferred Securities by one or more rating agencies, all costs and
expenses (including fees of Underwriters' Counsel and their disbursements)
incurred in connection with blue sky qualifications, advising on the legality of
the Securities for investment, the filing requirements, if any, of the National
Association of Securities Dealers, Inc. in connection with its review of
corporate financings, the fee for listing the Securities on the NYSE, the fees
and expenses of the Property Trustee, the Guarantee Trustee and the Indenture
Trustee and all costs and expenses of the printing and distribution of all
documents in connection with such offering. Except as provided in this Section
8, the Company will have no responsibility to the Underwriters for the
Underwriters' own costs and expenses, including the fees of Underwriters'
Counsel and any advertising expenses in connection with any offer the
Underwriters may make.
(b) If the sale of the Preferred Securities provided for
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of any
refusal, inability or failure on the part of the Company or the Trust to perform
any agreement herein or comply with any provision hereof, the Company will,
subject to demand by the Representatives, reimburse the Underwriters for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Preferred Securities.
27
9. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls such Underwriter
within the meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or in
any amendment thereof, or in any Interim Prospectus, the Basic Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that (i) the Company will 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 any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Representatives on
behalf of any Underwriter specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the Final
Prospectus at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Securities Act
and the untrue statement or omission of a material fact contained in the Basic
Prospectus or any Interim Prospectus was corrected in the Final Prospectus,
unless such failure to deliver the Final Prospectus was a result of
noncompliance by the Company with Section 6(d) hereof. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, the Trust and each Trustee, and each person, if any, who
controls the Company or the Trust within the meaning of the Securities Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses,
28
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or the 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 the same was made therein in reliance upon and in conformity
with written information furnished to the Company as herein stated by the
Representatives on behalf of such Underwriter specifically for use in the
preparation thereof, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The statements set forth in the last paragraph
of the cover page and under the heading "Underwriting" in the Final Prospectus
constitute the only information furnished to the Company in writing by or on
behalf of the several Underwriters for inclusion in the Registration Statement
and the Final Prospectus, as the case may be, and you, as the Representatives,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; PROVIDED, HOWEVER, if the defendants in any such action
include both the indemnified party and the indemnifying party and either (i) the
indemnifying party or parties and the indemnified party or parties mutually
agree or (ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties shall have
the right to select separate counsel to assume
29
such legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed counsel in connection with the assumption
of legal defenses in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a) representing the indemnified
parties under subparagraph (a), as the case may be, who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) of
this Section 9 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company on grounds of policy or other similar
grounds, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company, the Trust and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discounts appearing on the
cover page of the Final Prospectus bear to the public offering prices appearing
thereon and the Company is responsible for the balance; PROVIDED, HOWEVER, that
(i) in no case shall any Underwriter (except as may be provided in any agreement
among underwriters) be responsible for any amount in excess of the underwriting
discounts applicable to the Preferred Securities purchased by such Underwriter
hereunder and (ii) 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. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of the Securities Act shall have the same rights
to contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement each
director of
30
the Company, the Trust and each Trustee shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of
this subparagraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this subparagraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this subparagraph (d).
10. DEFAULT BY AN UNDERWRITER. If, on either Closing Date, any
one or more Underwriters shall fail to purchase and pay for all of the Preferred
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the aggregate liquidation amount of Preferred Securities set forth
opposite their names in Schedule II hereto bear to the aggregate liquidation
amount of Firm Securities set opposite the names of the remaining Underwriters)
the Firm Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such Closing Date; PROVIDED, HOWEVER, that in the event
that the aggregate liquidation amount of Preferred Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Closing Date shall exceed 10% of the aggregate liquidation amount of Preferred
Securities, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Preferred Securities,
and if such non-defaulting Underwriters do not purchase all the Preferred
Securities, this Agreement (or, with respect to the Second Closing Date, the
obligation of the Underwriters to purchase, and of the Company to sell, the
Option Securities) will terminate without liability to any non-defaulting
Underwriters or the Company or the Trust. In the event of a default by any
Underwriter as set forth in this Section 10, the applicable Closing Date shall
be postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the Registration Statement
and the Final Prospectus or in any other documents or arrangements may be
effected. Nothing herein contained shall relieve any defaulting Underwriter of
its liability, if any, to the Company or the Trust and any non-defaulting
Underwriter for damages occasioned by its default hereunder.
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11. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company at or prior to delivery of and payment for all of the Firm
Securities, if, prior to such time (i) trading in securities generally on the
NYSE or the over-the-counter market shall have been suspended or limited or
minimum prices shall have been established on the NYSE or the over-the-counter
market, (ii) a banking moratorium shall have been declared either by federal or
New York State authorities, (iii) any new restriction materially affecting the
distribution of the Preferred Securities shall have become effective; (iv)
trading in any securities of the Company shall have been suspended or halted by
any national securities exchange, the National Association of Securities
Dealers, Inc. or the Commission, (v) the United States becomes engaged in
hostilities or there is an escalation in hostilities involving the United States
or there is a declaration of a national emergency or war by the United States,
or (vi) there shall have been such a material adverse change in national or
international political, financial or economic conditions, national or
international equity markets or currency exchange rates or controls as to make
it, in the judgment of the Representatives, inadvisable or impracticable to
proceed with the payment for and delivery of the Preferred Securities.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) or the Trust and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or the Company or the Trust or any of their respective officers,
directors or trustees or any controlling person within the meaning of the
Securities Act, and will survive delivery of the payment for the Preferred
Securities.
13. NOTICES. All communications hereunder will be in writing,
and, if sent to the Representatives will be mailed, delivered, telegraphed or
telexed and confirmed to them, at the address specified in Schedule I hereto;
or, if sent to the Trust or the Company, will be mailed, delivered, telegraphed
or telexed and confirmed to the Trust or the Company at ▇▇▇▇▇▇ Brothers Holdings
Inc., 3 World Financial Center, New York, New York 10285, Attention: Chief
Financial Officer.
14. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their successors and, to the extent
and only to the extent stated in Section 9 hereof, the officers and directors
and controlling persons referred to in Section 9 hereof, and except as provided
32
in Section 9 hereof, no person other than the parties hereto and their
respective successors will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed
by and construed in accordance with the laws of the State of New
York.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS
CAPITAL TRUST
By:
----------------------------------
Title: Regular Trustee
By:
----------------------------------
Title: Regular Trustee
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:
----------------------------------
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------------
Title:
Acting on behalf of the
Representatives named in Schedule I
annexed hereto and the several
Underwriters named in Schedule II
34
annexed hereto.
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-
Representative and Address:
c/▇ ▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Declaration of Trust, Declaration, Title, Purchase Price and
Description of Preferred Securities:
Declaration of Trust:
Declaration:
Title:
Aggregate liquidation amount of Firm Securities:
Price to public:
Distribution rate:
Time of payment of distributions:
Redemption provisions:
Aggregate liquidation amount of Option Securities:
Indenture, Title, Purchase Price and Description of Debentures:
Indenture:
Title:
Principal Amount:
Price to Trust:
Interest rate:
Time of payment of interest:
Maturity:
Redemption provisions:
Guarantee Agreement:
Commission payable by Company on Firm Securities:
Commission rate payable by Company on Option Securities:
First Closing Date, Time and Location:
Date:
Time:
Location:
SCHEDULE II
NUMBER OF
PREFERRED
UNDERWRITERS SECURITIES
▇▇▇▇▇▇ Brothers Inc............................................
Total....................................................